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): February 9, 1999
GMAC Commercial Mortgage Securities, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 333-64963 23-2811925
(State or other jurisdiction (Commission) (I.R.S. employer
of incorporation) file number) identification no.)
650 Dresher Road, Horsham, Pennsylvania 19044
(Address of principal executive offices) Zip code)
Registrant's telephone number, including area code (215) 328-3480
Not Applicable
(Former name or former address, if changed since last report)
Exhibit Index Located on Page 7
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Item 2. Acquisition or Disposition of Assets.
On February 9, 1999, a single series of certificates, entitled GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
1998-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 February 1, 1999, among GMAC Commercial Mortgage Securities,
Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage Corporation
("GMACCM") as master servicer and special servicer and Norwest Bank Minnesota,
National Association, as trustee. The Certificates consist of fifteen classes
identified as the "Class X Certificates," the "Class A-1 Certificates," the
"Class A-2 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 due date of
each Mortgage Loan in February 1999 (the "Cut-off Date"), an aggregate principal
balance of $1,334,328,273 (the "Initial Pool Balance"), after taking into
account all payments of principal due on Mortgage Loans on or before such date,
whether or not received. The Depositor acquired certain of the Trust Fund assets
from GMACCM pursuant to a mortgage loan purchase agreement dated February 2,
1999, 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 February 2, 1999, 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 Restructured Asset Certificates With
Enhanced Returns, Series 1998-ML Trust ("ML Trust") pursuant to a mortgage loan
purchase agreement dated February 2, 1999, attached hereto as Exhibit 99.3
between ML Trust as seller and the Depositor as purchaser. The Depositor sold a
portion of the Class X Certificates and all of the Class A-1, Class A-2, Class
B, Class C, Class D and Class E Certificates to Goldman, Sachs & Co., Deutsche
Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities Corporation
(the "Underwriters") pursuant to an underwriting agreement dated February 2,
1999, attached hereto as Exhibit 1.1, among the Underwriters, GMACCM and the
Depositor. The Depositor sold the remaining portion of the Class X Certificates
to GMACCM pursuant to a Class X Certificate Purchase Agreement dated February 2,
1999, attached hereto as Exhibit 1.2, between GMACCM and the Depositor. The
Depositor sold the Class F, Class G, Class H, Class J and Class K Certificates
to GMACCM pursuant to a certificate purchase agreement dated February 2, 1999
between GMACCM and the Depositor. The Depositor sold the Class R-I, Class R-II
and Class R-III Certificates to Goldman, Sachs & Co.
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 to $1,334,328,273.
The Class A-1 Certificates will have an initial Certificate Balance of
$240,000,000. The Class A-2 Certificates will have an initial Certificate
Balance of $680,686,000. The Class B Certificates will have an initial
Certificate Balance of $66,716,000. The Class C Certificates will have an
initial Certificate Balance of $66,717,000. The Class D
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Certificates will have an initial Certificate Balance of $86,731,000. The Class
E Certificates will have an initial Certificate Balance of $20,015,000. The
Class F Certificates will have an initial Certificate Balance of $83,396,000.
The Class G Certificates will have an initial aggregate Certificate Balance of
$13,343,000. The Class H Certificates will have an initial Certificate Balance
of $26,686,000. The Class J Certificates will have an initial Certificate
Balance of $20,015,000. The Class K Certificates will have an initial
Certificate Balance of $30,023,273. 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.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
List below the financial statements, pro forma financial information and
exhibits, if any, filed as part of this report.
(a) Financial Statements of Businesses Acquired.
Not applicable
(b) Pro Forma Financial Information.
Not applicable
(c) Exhibits.
Exhibit No. Document Description
1.1 Underwriting Agreement, dated as of February 2, 1999, among GMAC
Commercial Mortgage Securities, Inc. as seller, GMAC Commercial
Mortgage Corporation, and Goldman, Sachs & Co., Deutsche Bank
Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation as underwriters.
1.2 Class X Certificate Purchase Agreement, dated as of February 2,
1999, between GMAC Commercial Mortgage Securities, Inc. as seller
and GMAC Commercial Mortgage Corporation as purchaser.
4.1 Pooling and Servicing Agreement, dated as of February 1, 1999,
among GMAC Commercial Mortgage Securities, Inc. as depositor,
GMAC Commercial Mortgage Corporation as master servicer and
special servicer and Norwest Bank Minnesota, National
Association, as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of February 2, 1999,
between GMAC Commercial Mortgage Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of February, 2, 1999,
between German American Capital Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of February, 2, 1999,
between Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust, as seller and GMAC Commercial Mortgage
Securities, Inc. as purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
Registrant
By: /s/ David Lazarus
----------------------------------
Name: David Lazarus
Title: Vice President
Dated: February 19, 1999
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INDEX OF EXHIBITS
Exhibit Description
1.3 Underwriting Agreement, dated as of February 2, 1999, among GMAC
Commercial Mortgage Securities, Inc. as seller, GMAC Commercial
Mortgage Corporation, and Goldman, Sachs & Co., Deutsche Bank
Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation as underwriters.
1.4 Class X Certificate Purchase Agreement, dated as of February 2,
1999, between GMAC Commercial Mortgage Securities, Inc. as seller
and GMAC Commercial Mortgage Corporation as purchaser.
4.1 Pooling and Servicing Agreement, dated as of February 1, 1999,
among GMAC Commercial Mortgage Securities, Inc. as depositor,
GMAC Commercial Mortgage Corporation as master servicer and
special servicer and Norwest Bank Minnesota, National
Association, as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of February 2, 1999,
between GMAC Commercial Mortgage Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of February, 2, 1999,
between German American Capital Corporation as seller and GMAC
Commercial Mortgage Securities, Inc. as purchaser.
99.3 Mortgage Loan Purchase Agreement, dated as of February, 2, 1999,
between Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust, as seller and GMAC Commercial Mortgage
Securities, Inc. as purchaser.
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Exhibit 1.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,160,865,000
Mortgage Pass-Through Certificates, Series 1999-C1
Class X, Class A-1, Class A-2, Class B,
Class C, Class D and Class E
UNDERWRITING AGREEMENT
as of February 2, 1999
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, NY 10019
and
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, NY 10172
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"), the respective classes of Mortgage Pass-Through Certificates,
Series 1999-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 (such Certificates, the
"Underwritten Certificates"). The Class X, Class A-1, Class A-2, Class B, Class
C, Class D and Class E Certificates (collectively, the "Certificates"), together
with the Class F, 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.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of February 1, 1999 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
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Servicer"), and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). The Certificates are described in the Basic Prospectus and the
Prospectus Supplement (each as hereinafter defined) which the Company has
furnished to the Underwriters.
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 February 2, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"ML Trust Mortgage Loans") will be acquired by the Company from LaSalle National
Bank as Trustee for Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust ("ML Trust") pursuant to a mortgage loan purchase
agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan Purchase
Agreement"), between the Company and ML Trust. 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 February 2, 1999 (the "GACC Mortgage Loan Purchase Agreement"),
between the Company and GACC (the GACC Mortgage Loans, together with the GMACCM
Mortgage Loans and the ML Trust Mortgage Loans, the "Mortgage Loans"). GMACCM,
ML Trust and GACC together constitute the "Mortgage Loan Sellers." The "Cut-off
Date" with respect to each Mortgage Loan shall be the due date for such Mortgage
Loan in February 1999.
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. 333-64963) 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 Underwriters. 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 February 2, 1999 (the
"Prospectus Supplement"), to the prospectus dated November 5, 1998 (the
"Basic Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No. 333-64963) 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 the offering of
the Certificates, are hereinafter called the "Prospectus" and any diskette
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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 February 2, 1999 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 Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus and any
Diskette, as of the date of the Prospectus Supplement, did not, and as of
the Closing Date will not, 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 Information--The Mortgage Pool," "Risk
Factors--Risks Related to 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 the Mortgage Loan
Seller Information (exclusive of the information set forth on pages A-8
through A-11, inclusive, of Annex A to the Prospectus Supplement (the "Loan
Detail") and the information on the Diskette) that represents a restatement
of the information on the Loan Detail, accurately reflects the information
contained in the Loan Detail; and provided, further, that neither the
Company nor GMACCM makes any representations or warranties with respect to
the Diskette to the extent that the information set forth in the Diskette
is different than the information set forth in the Loan Detail. Neither the
Company nor, except as contemplated by Section 1.2(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
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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
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, in Section 2(b) of each
Supplemental Agreement and in Section 4(b) of the GMACCM Mortgage Loan
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
Underwriters, constitutes a valid, legal and binding obligation of GMACCM,
enforceable against GMACCM in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, (ii) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
1.3 Each Underwriter represents and warrants to and agrees with the Company
and GMACCM that:
(a) With respect to each class of Underwritten Certificates, if any,
to be issued in authorized denominations of $25,000 or less initial
principal balance or
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evidencing percentage interests in such class of less than 20%, as the case
may be, the fair market value of all such Underwritten 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 material 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.
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 Underwritten Certificates at a price for
each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Underwritten 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 Underwritten
Certificates shall be made at the office of Orrick, Herrington & Sutcliffe LLP
at 10:00 a.m., New York City time, on February 9, 1999 or such later date as the
Underwriters shall designate, which date and time may be postponed by agreement
between the Underwriters and the Company (such date and time of delivery and
payment for the Underwritten Certificates being herein called the "Closing
Date"). Delivery of the Underwritten Certificates (also referred to herein as
the "DTC Registered Certificates") shall be made to the respective accounts of
the Underwriters through DTC, in each case against payment by the Underwriters
to or upon the order of GMACCM by wire transfer in immediately available funds
of the amount that has been agreed to by GMACCM and the Company (net of certain
expenses, which will be paid by the Underwriters on behalf of the Company). As a
further condition to the delivery of the DTC Registered Certificates, each
Underwriter shall have furnished by telephonic notice to GMACCM the federal
reference number for the related wire transfer to GMACCM 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
Underwritten 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
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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-e of the General Business Law of the State of
New York with respect to the Underwritten Certificates. As required by Policy
Statement 105, each Underwriter therefore covenants and agrees with the Company
that sales of the Underwritten 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 Underwritten
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 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:
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"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 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
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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 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
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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) The Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the No-Action Letters with respect to the generation
and use of Computational Materials and ABS Term Sheets in connection with
the offering of the Certificates.
(j) 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 or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, 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 Underwritten Certificates, (a) if less than 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten 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 Underwritten Certificates has been sold to the
public as of such date but no single price is paid for at least 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates, then the weighted average price at which the
Underwritten 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 Underwritten 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 Underwritten Certificates was sold to the public, (ii)
the prepayment assumption used in pricing each class of Underwritten
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 Underwritten Certificates to the
extent such information can in the good faith judgment of such Underwriter be
determined by it.
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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 Underwritten Certificates, the Company will
furnish the Underwriters 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 Underwritten Certificates in which a prospectus relating to the Underwritten
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 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 Underwriters, 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 Underwriters may reasonably
request.
5.5 The Company agrees, so long as the Underwritten 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 Underwriters the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Underwritten
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters shall be
responsible only 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 Underwritten Certificates.
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5.8 If, during the period after the Closing Date in which a prospectus
relating to the Underwritten 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
Underwritten Certificates is in effect, the Company will advise the Underwriters
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 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 Underwritten Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since January 1, 1999, 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:
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(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 Orrick, Herrington
& Sutcliffe LLP, special counsel for the Company and GMACCM, dated the Closing
Date and substantially to the effect set forth in Exhibit A, 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 and the
opinion of Severson & Werson, special California counsel for the GMACCM, dated
the Closing Date that 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.
6.6 The Underwriters shall have received from their counsel 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 Asset
Pool," "Description of the Certificates" and "Yield and Maturity Considerations"
agrees with the records of the Company and the Mortgage Loan Sellers excluding
any questions of legal interpretation and (b) the letter prepared pursuant to
Section 5.9 hereof.
6.8 The respective classes of Underwritten 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
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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 Orrick, Herrington &
Sutcliffe LLP, 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 GMACCM Mortgage Loan Purchase Agreement, Exhibit C-3 of the GACC
Mortgage Loan Purchase Agreement and Section 8(d) of the ML Trust Mortgage Loan
Purchase Agreement.
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 Underwritten Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
in the Diskette, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon any information with respect to which the Underwriters
have agreed to indemnify the Company pursuant to Section 7.2; provided that the
Company and GMACCM will be liable for any such loss, claim, damage or liability
that arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Mortgage
Loan Seller Information or Pool Information only if and to the extent that (i)
any such untrue statement is with respect to information regarding the 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
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Loans contained in the Prospectus Supplement under the headings "Summary
Information-The Mortgage Pool," "Risk Factors-Risks Related to 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 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 Mortgage Loans
contained in the Prospectus Supplement under the headings "Summary
Information-The Mortgage Pool," "Risk Factors-Risks Related to 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 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,
or any information included in Computational Materials or ABS Term Sheets that
have been superseded by revised Computational Materials or ABS Terms Sheets (any
such information, the "Excluded Pool Information") provided that such
Underwriter has complied with its obligation to circulate revised Computational
Materials and ABS Terms Sheets in accordance with Section 4.2(e) and has
delivered them to the Company no later than one (1) Business Day after delivery
to investors; provided, however, 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 Pool Information relating to the 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; provided, however, that the
indemnification set forth in this Section 7.2 shall not apply to the extent of
any errors in the Computational Materials or ABS Term Sheets that are caused by
Excluded Pool Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company no later
than one (1) Business Day after delivery to investors. 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 Underwritten 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
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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 Underwriters, in the case of parties indemnified pursuant to
Section 7.1, and by the Company or GMACCM, in the case of parties indemnified
pursuant to Section 7.2. The indemnifying party may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel reasonably satisfactory to the indemnified
party in connection therewith, provided that the counsel so designated would
have no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under Section 7.1 or 7.2 hereof or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to 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 Underwritten Certificates but also the relative fault of the Company and
GMACCM on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and GMACCM on the one hand and of 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.
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7.5 The Company, GMACCM and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in Section 7.4 above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses pursuant to Section 7.4; which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and GMACCM in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Company or GMACCM and their respective directors or officers or any person
controlling the Company or GMACCM and (iii) acceptance of and payment for any of
the Underwritten Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Underwritten 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 Underwritten Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Underwritten 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 Underwritten
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten 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 Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to
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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
Underwritten 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 Underwritten 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: Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004, Attention: Rolf Edwards, Deutsche Bank Securities Inc., 31 West 52nd
Street, New York, New York 10019, Attention: Eric Schwartz and Donaldson, Lufkin
& Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Mark Brown; 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 controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
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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/ David Lazarus
------------------------------
Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ David Lazarus
------------------------------
Name: David Lazarus
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-----------------------------------
(Goldman, Sachs & Co.)
DEUTSCHE BANK SECURITIES INC.
By: /s/ Eric M. Schwartz
-----------------------------------
Name: Eric M. Schwartz
Title: Director
By: /s/ Gregory B. Hartch
-----------------------------------
Name: Gregory B. Hartch
Title: Vice President
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: /s/ John F. Bricker
-----------------------------------
Name: John F. Bricker
Title: Senior Vice President
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SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-64963 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 1999-C1, Class X, Class A-1, Class
A-2, Class B, Class C, Class D and Class E
Underwriters: Goldman, Sachs & Co. ("Goldman"), Deutsche Bank Securities Inc.
("DBS") and Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ").
Underwriting Agreement, dated as of February 2, 1999
Cutoff Date: due date of any Mortgage Loan in February 1999
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:
<TABLE>
<CAPTION>
Allocation Table
- -----------------------------------------------------------------------------------------------------------------
Underwriter Class X(1) Class A-1 Class A-2 Class B Class C Class D Class E
=================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
Goldman 50% 50% 50% 50% 50% 50% 50%
- -----------------------------------------------------------------------------------------------------------------
DBS 25% 25% 25% 25% 25% 25% 25%
- -----------------------------------------------------------------------------------------------------------------
DLJ 25% 25% 25% 25% 25% 25% 25%
- -----------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) As a percentage of the Class Notional Amount of $667,179,654.
<TABLE>
<CAPTION>
Initial Class
Principal Balance
(or in the case of
Class X, Class
Notional Initial Purchase S&P/Fitch
Class Designation Amount)(1)(2) Pass-Through Rate Price(2) Rating
- ----------------- ------------------ ----------------- -------- ---------
<S> <C> <C> <C> <C>
X $667,179,654 0.690% 4.498540 AAAr/AAA
A-1 $240,000,000 5.830% 100.494900 AAA/AAA
A-2 $680,686,000 6.175% 101.515900 AAA/AAA
B $ 66,716,000 6.295% 101.513600 AA/AA
C $ 66,717,000 6.590% 101.498700 A/A
D $ 86,731,000 6.865% 97.206600 BBB/BBB
E $ 20,015,000 6.865% 90.633100 BBB-/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 hereunder. In addition, as to each such class of Certificates,
the Underwriters will pay GMAC Commercial Mortgage Securities, Inc. accrued
interest at the initial Pass-Through Rate therefor from the Cut-off Date to
but not including the Closing Date.
<PAGE>
Closing Time, Date and Location: 10:00 a.m. New York City time on February 9,
1999 at the offices of Orrick, Herrington & Sutcliffe LLP. 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 and Class A-2 Certificates,
Class B, Class C, Class D and Class E Certificates and $1,000,000 in the case of
the Class X Certificates, and integral multiples of $1 in excess thereof.
2
<PAGE>
EXHIBIT A
Form of Opinion of Orrick, Herrington & Sutcliffe LLP
<PAGE>
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
February __, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-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 1999-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 February 1, 1999 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of February 2, 1999 (the
"Mortgage Loan Purchase Agreement"), between GMACCM 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 February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company. Certain of the Mortgage
Loans (the "ML Trust Mortgage Loans") were purchased by the Company from LaSalle
National Bank as Trustee for Restructured Asset Certificates With Enhanced
Returns, Series 1998-ML Trust ("ML Trust") pursuant to the Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold a portion of the Class X and all of the Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates to Goldman, Sachs & Co.,
Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation as the underwriters (the "Underwriters") named in the Underwriting
Agreement, dated as of February 2, 1999 (the "Underwriting Agreement"), among
the Company, GMACCM and the Underwriters. The Company sold a portion of the
Class X to GMACCM pursuant to the Class X Certificate Purchase Agreement, dated
as of February 2, 1999 (the "Class X Certificate Purchase Agreement"), between
the Company and GMACCM, and all of the Class F, Class G, Class H, Class J and
Class K Certificates to GMACCM as initial purchaser (in such capacity, an
"Initial Purchaser") pursuant to the Certificate Purchase Agreement, dated as of
February 2, 1999 (the "Certificate Purchase Agreement"), between the Company and
GMACCM. The Company sold the Class R-I, Class R-II and Class R-III Certificates
to Goldman, Sachs & Co. as initial purchaser (in such capacity, an Initial
Purchaser"). The Certificate Purchase Agreement, the
<PAGE>
Underwriting Agreement, the Class X Certificate Purchase Agreement, the GMACCM
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the
ML Trust Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement are collectively referred to as the "Agreements". Capitalized terms
not defined herein have the meanings set forth in the Agreements.
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. GMACCM has the requisite power and
authority, corporate or other, to enter into and perform its obligations under
the Agreements. 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,
2
<PAGE>
(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. No consent, approval,
authorization or order of the Commonwealth of Pennsylvania, State of Delaware,
State of California or federal court or governmental agency or body is required
for the consummation by GMACCM or the Company of the transactions contemplated
by the terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained. 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, 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 Orrick, Herrington & Sutcliffe LLP, 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
3
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Norwest Bank Minnesota, National Association
Fitch IBCA, Inc.
Standard & Poor's Ratings Services
<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
February [ ], 1999
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 1999-C1
Pursuant to Section 4.3 of the Underwriting Agreement, dated February 2,
1999 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Goldman Sachs & Co., Deutsche Bank
Securities Inc. and Donaldson, Lufkin & Jenrette Securities Corporation, each as
representative on behalf of itself and the underwriters set forth therein (the
"Underwriters") relating to the Class X (solely with respect to a portion equal
to an initial Class Notional Amount equal to $667,179,454), Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates (together, the
"Certificates"), each of the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was [ ]%
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
February [___], 1999; (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 B: _______________
<PAGE>
Class C: _______________
Class D: _______________
Class E: _______________
* less than 10% has been sold to the public
The prices set forth above do not include accrued interest with respect to
periods before closing.
GOLDMAN, SACHS & CO.
By:
--------------------------------
(Goldman, Sachs & Co.)
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------------
Name:
Title:
2
Exhibit 1.2
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$667,148,619*
(*by initial notional principal amount)
Mortgage Pass-Through Certificates, Series 1999-C1,
CLASS X CERTIFICATE PURCHASE AGREEMENT
as of February 2, 1999
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044-8015
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to GMAC Commercial Mortgage Corporation (the
"Purchaser" or "GMACCM") a portion of the Class X of Mortgage Pass-Through
Certificates, Series 1999-C1, having an initial aggregate notional principal
amount (a "Class Notional Amount") of $667,148,619 and an initial pass-through
rate of 0.690% (the "Purchased Certificate"). The Class X, Class A-1, Class A-2,
Class B, Class C, Class D and Class E Certificates (the "Publicly Offered
Certificates"), together with the Class F, 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.
The Purchased Certificate will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of February 1,
1999 among the Company, as depositor, GMAC Commercial Mortgage Corporation
("GMACCM"), as master servicer (in such capacity, the "Master Servicer") and
special servicer (in such capacity, the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Purchased
Certificate is described in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to the Purchaser.
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 February 2, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"ML Trust Mortgage Loans") will be acquired by the Company from LaSalle National
Bank as Trustee for Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust ("ML Trust") pursuant to a mortgage
<PAGE>
loan purchase agreement, dated as of February 2, 1999 (the "ML Trust Mortgage
Loan Purchase Agreement"), between the Company and ML Trust. 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 February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between the Company and GACC (the GACC Mortgage Loans,
together with the GMACCM Mortgage Loans and the ML Trust Mortgage Loans, the
"Mortgage Loans"). GMACCM, ML Trust and GACC together constitute the "Mortgage
Loan Sellers." The "Cut-off Date" with respect to each Mortgage Loan shall be
the due date for such Mortgage Loan in February 1999.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the Purchaser
that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-64963) 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
Publicly Offered Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to the Purchaser. 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 February 2, 1999 (the "Prospectus Supplement"), to the prospectus
dated November 5, 1998 (the "Basic Prospectus"), relating to the Publicly
Offered Certificates and the method of distribution thereof. Such
registration statement (No. 333-64963) 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 the offering of the Publicly Offered
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 February 2, 1999 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 Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as
2
<PAGE>
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
(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.
(e) As of the Closing Date (as defined herein), the Purchased
Certificate 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.
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 the Purchaser, and the Purchaser agrees to purchase from the Company,
the Purchased Certificate with a Class Notional Amount of $667,164,136 at a
price of 4.498540. There will be added to the purchase prices of the Purchased
Certificate 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 Purchased
Certificate shall be made at the office of Orrick, Herrington & Sutcliffe LLP at
10:00 a.m., New York City time, on February 9, 1999 or such later date as the
Purchaser shall designate, which date and time may be postponed by agreement
between the Purchaser and the Company (such date and time of delivery and
payment for the Purchased Certificate being herein called the "Closing Date").
Delivery of the Purchased Certificate (also referred to herein as the "DTC
Registered Certificates") shall be made to the account of the Purchaser through
DTC.
4. Agreements. The Company agrees with the Purchaser that:
4.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Publicly Offered Certificates, the Company
will furnish the Purchaser with a copy of each such proposed amendment or
supplement.
4.2 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.
4.3 If, during the period after the first date of the public offering
of the Publicly Offered Certificates in which a prospectus relating to the
Publicly Offered Certificates is
3
<PAGE>
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 Purchaser,
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.
4.4 The Company will furnish to the Purchaser, 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
Purchaser may reasonably request.
4.5 The Company agrees, so long as the Publicly Offered Certificates
shall be outstanding, to deliver to the Purchaser 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.
4.6 If, during the period after the Closing Date in which a prospectus
relating to the Purchased Certificate 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 Purchased Certificate is in effect, the Company will advise the
Purchaser of the issuance of such stop order.
5. Conditions to the Obligations of the Purchaser. The Purchaser's
obligation to purchase the Purchased Certificate shall be subject to the
following conditions:
5.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission;
and the Prospectus Supplement shall have been filed or transmitted for
filing, by means reasonably calculated to result in a filing with the
Commission pursuant to Rule 424(b) under the Act.
5.2 Since January 1, 1999, there shall have been no material adverse
change (not in the ordinary course of business) in the condition of the
Company or GMACCM as Master Servicer.
5.3 The Company shall have delivered to the Purchaser 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:
4
<PAGE>
(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.
5.4 [Reserved]
5.5 The Purchaser shall have received the opinions of Orrick,
Herrington & Sutcliffe LLP, special counsel for the Company and GMACCM,
dated the Closing Date and substantially to the effect set forth in Exhibit
A, 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 and the opinion of Severson & Werson, special California
counsel for the GMACCM, dated the Closing Date that 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.
5.6 The Purchaser shall have received a copy of the letter from
Deloitte & Touche, L.L.P., certified public accountants, dated the date
hereof and reasonably satisfactory in form and substance to the Purchaser,
to the effect that they have performed certain specified procedures, 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 Asset Pool," "Description
of the Certificates" and "Yield and Maturity Considerations" agrees with
the records of the Company and the Mortgage Loan Sellers excluding any
questions of legal interpretation.
5.7 The Purchased Certificate shall have been rated "AAAr" by Standard
& Poor's Rating Services, a division of The McGraw-Hill Companies, Inc.,
and "AAA" by Fitch IBCA, Inc.
5.8 The Purchaser 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.
5
<PAGE>
5.9 The Purchaser shall have received from Orrick, Herrington &
Sutcliffe LLP, 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 in Section 5.5 herein.
5.10 The Purchaser 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 GMACCM Mortgage Loan Purchase Agreement, Exhibit C-3
of the GACC Mortgage Loan Purchase Agreement and Section 8(d) of the ML
Trust Mortgage Loan Purchase Agreement.
The Company will furnish the Purchaser with conformed copies of the above
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
6.1 The Company agrees to indemnify and hold harmless the Purchaser
and each person, if any, who controls such Purchaser 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 Publicly Offered 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 5.2 hereof and as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or in the Diskette, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
6.2 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 6.1, 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 Purchaser. 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
6
<PAGE>
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.
6.3 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company 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 the Company and its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for the
Purchased Certificate.
7. Termination. This Agreement shall be subject to termination by notice
given to the Company, if the sale of the Purchased Certificate provided for
herein is not consummated because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement. If the Purchaser terminates this Agreement in
accordance with this Section 7, the Company will reimburse the Purchaser for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Purchaser in
connection with the proposed purchase and sale of the Purchased Certificate.
8. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Purchaser or the officers of any of the Company and the Purchaser
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 Purchaser or made by or on behalf of the Company or
any of its respective officers, directors or controlling persons, and will
survive delivery of and payment for the Purchased Certificate.
9. Notices. All communications hereunder will be in writing and effective
only on receipt, 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 the
Purchaser, 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.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling
7
<PAGE>
persons referred to in Section 6 hereof, and their successors and assigns,
and no other person will have any right or obligation hereunder.
11. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
8
<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 and the
Purchaser.
Very truly yours,
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
------------------------------------
Name: David Lazarus
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
------------------------------
Name: David Lazarus
Title: Vice President
9
<PAGE>
EXHIBIT A
Form of Orrick, Herrington & Sutcliffe LLP
To be provided
<PAGE>
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
February __, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-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 1999-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 February 1, 1999 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of February 2, 1999 (the
"Mortgage Loan Purchase Agreement"), between GMACCM 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 February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company. Certain of the Mortgage
Loans (the "ML Trust Mortgage Loans") were purchased by the Company from LaSalle
National Bank as Trustee for Restructured Asset Certificates With Enhanced
Returns, Series 1998-ML Trust ("ML Trust") pursuant to the Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold a portion of the Class X Certificates and all of the Class
A-1, Class A-2, Class B, Class C, Class D and Class E Certificates to Goldman,
Sachs & Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation as the underwriters (the "Underwriters") named in the
Underwriting Agreement, dated as of February 2, 1999 (the "Underwriting
Agreement"), among the Company, GMACCM and the Underwriters. The Company sold
the remaining portion of the Class X Certificates to GMACCM pursuant to the
Class X Certificate Purchase Agreement, dated as of February 2, 1999 (the "Class
X Certificate Purchase Agreement"), between the Company and GMACCM, and all of
the Class F, Class G, Class H, Class J and Class K Certificates to GMACCM as
initial purchaser (in such capacity, an "Initial Purchaser") pursuant to the
Certificate Purchase Agreement, dated as of February 2, 1999 (the "Certificate
Purchase Agreement"), between the Company and GMACCM. The Company sold the Class
R-I, Class R-II and Class R-III Certificates to Goldman, Sachs & Co. as initial
purchaser (in such capacity, an Initial Purchaser"). The Certificate Purchase
Agreement, the
<PAGE>
Underwriting Agreement, the Class X Certificate Purchase Agreement, the GMACCM
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the
ML Trust Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement are collectively referred to as the "Agreements". Capitalized terms
not defined herein have the meanings set forth in the Agreements.
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. GMACCM has the requisite power and
authority, corporate or other, to enter into and perform its obligations under
the Agreements. 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,
2
<PAGE>
(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. No consent, approval,
authorization or order of the Commonwealth of Pennsylvania, State of Delaware,
State of California or federal court or governmental agency or body is required
for the consummation by GMACCM or the Company of the transactions contemplated
by the terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained. 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, 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 Orrick, Herrington & Sutcliffe LLP, 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
3
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Norwest Bank Minnesota, National Association
Fitch IBCA, Inc.
Standard & Poor's Ratings Services
Exhibit 4.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
-----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 1999
-----------------------------------------
$1,334,328,273
Mortgage Pass-Through Certificates
Series 1999-C1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS...............................................................................4
Section 1.01 Defined Terms.....................................................................4
Accrued Certificate Interest...................................................................4
Acquisition Date...............................................................................4
Additional Information.........................................................................4
Additional Trust Fund Expense..................................................................4
Adjustable Rate Mortgage Loan..................................................................4
Advance .......................................................................................4
Advance Interest...............................................................................4
Adverse Grantor Trust Event....................................................................4
Adverse REMIC Event............................................................................4
Affiliate......................................................................................4
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..................................................................6
Balloon Mortgage Loan..........................................................................7
Balloon Payment................................................................................7
Balloon Payment Interest Excess................................................................7
Balloon Payment Interest Shortfall.............................................................7
Bankruptcy Code................................................................................8
Bloomberg......................................................................................8
Breach ......................................................................................8
Book-Entry Certificate.........................................................................8
Business Day...................................................................................8
Cash Collateral Account........................................................................8
Cash Collateral Account Agreement..............................................................8
CERCLA ........................................................................................8
Certificate....................................................................................9
Certificate Account............................................................................9
Certificate Factor.............................................................................9
Certificateholder" or "Holder..................................................................9
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
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Class A-2 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...........................................................................10
Class J Certificate...........................................................................10
Class K Certificate...........................................................................11
Class K-1 Certificate.........................................................................11
Class K-2 Certificate.........................................................................11
Class LA-1 Component..........................................................................11
Class LA-2 Component..........................................................................11
Class LB Component............................................................................11
Class LC Component............................................................................11
Class LD Component............................................................................11
Class LE Component............................................................................11
Class LF Component............................................................................11
Class LG Component............................................................................12
Class LH Component............................................................................12
Class LJ Component............................................................................12
Class LK Component............................................................................12
Class LA-1 Component Rate.....................................................................12
Class LA-2 Component Rate.....................................................................12
Class LB Component Rate.......................................................................12
Class LC Component Rate.......................................................................12
Class LD Component Rate.......................................................................12
Class LE Component Rate.......................................................................13
Class LF Component Rate.......................................................................13
Class LG Component Rate.......................................................................13
Class LH Component Rate.......................................................................13
Class LJ Component Rate.......................................................................13
Class LK Component Rate.......................................................................13
Class Notional Amount.........................................................................13
Class Principal Balance.......................................................................13
Class R-I Certificate.........................................................................13
Class R-I Distribution Amount.................................................................13
Class R-II Certificate........................................................................13
Class R-II Distribution Amount................................................................14
Class R-III Certificate.......................................................................14
Class R-III Distribution Amount...............................................................14
Class X Certificate...........................................................................14
Class X Component.............................................................................14
Closing Date..................................................................................14
Code .....................................................................................14
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Collection Period.............................................................................14
Collection Report.............................................................................14
Commission....................................................................................14
Compensating Interest Payments................................................................14
Component Rate................................................................................14
Controlling Class.............................................................................15
Corporate Trust Office........................................................................15
Corrected Mortgage Loan.......................................................................15
CPR .....................................................................................15
Credit File...................................................................................15
Credit Lease..................................................................................15
Credit Lease Loan.............................................................................15
Cross-Collateralized Mortgage Loans...........................................................15
CSSA Periodic Loan File.......................................................................15
Current Principal Distribution Amount.........................................................16
Custodian.....................................................................................16
Cut-off Date..................................................................................16
Cut-off Date Principal Balance................................................................17
Debt Service Coverage Ratio...................................................................17
Debt Service Reduction........................................................................17
Defaulted Mortgage Loan.......................................................................17
Default Interest..............................................................................17
Defaulting Party..............................................................................17
Defeasance Collateral.........................................................................17
Defeasance Loan...............................................................................17
Defeasance Option.............................................................................17
Defect .....................................................................................17
Deficient Valuation...........................................................................17
Definitive Certificate........................................................................18
Deleted Mortgage Loan.........................................................................18
Delinquency Advance...........................................................................18
Delinquency Advance Date......................................................................18
Delinquent Loan Status Report.................................................................18
Depositor.....................................................................................18
Depository....................................................................................18
Depository Participant........................................................................18
Determination Date............................................................................18
Directly Operate..............................................................................18
Discount Rate.................................................................................19
Discount Rate Fraction........................................................................19
Distributable Certificate Interest............................................................19
Distribution Account..........................................................................19
Distribution Date.............................................................................19
Distribution Date Statement...................................................................19
Due Date .....................................................................................20
Eligible Account..............................................................................20
</TABLE>
-iii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Emergency Advance............................................................................ 20
Environmental Assessment......................................................................20
ERISA .....................................................................................20
Escrow Payment................................................................................20
Event of Default..............................................................................20
Excess Interest...............................................................................20
Excess Rate...................................................................................20
Exchange Act..................................................................................21
Extraordinary Prepayment Interest Shortfall...................................................21
FDIC .....................................................................................21
FHLMC ........................................................................................21
Final Distribution Date.......................................................................21
Final Recovery Determination..................................................................21
FITCH IBCA....................................................................................21
Fixed Rate Mortgage Loan......................................................................21
FNMA .....................................................................................21
GMACCM .......................................................................................22
Grantor Trust.................................................................................22
Grantor Trust Assets..........................................................................22
Grantor Trust Provisions......................................................................22
Gross Margin..................................................................................22
Ground Lease..................................................................................22
Guarantor.....................................................................................22
Guaranty .....................................................................................22
Hazardous Materials...........................................................................22
Historical Loan Modification Report...........................................................22
Historical Loss Report........................................................................22
Independent...................................................................................23
Independent Contractor........................................................................23
Index .....................................................................................23
Initial Balance...............................................................................23
Initial Class Notional Amount.................................................................23
Initial Class Principal Balance...............................................................24
Insurance Policy..............................................................................24
Insurance Proceeds............................................................................24
Interest Accrual Period.......................................................................24
Interest Rate Adjustment Date.................................................................24
Interest Reserve Account......................................................................24
Interest Reserve Loans........................................................................24
Interested Person.............................................................................24
Investment Account............................................................................24
Investor Certification........................................................................24
Issue Price...................................................................................24
Late Collections..............................................................................24
Late Due Date Mortgage Loan...................................................................25
Liquidation Event.............................................................................25
</TABLE>
-iv-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Liquidation Expenses..........................................................................25
Liquidation Fee...............................................................................25
Liquidation Fee Rate..........................................................................25
Liquidation Proceeds..........................................................................25
Loan-to-Value Ratio...........................................................................26
Lock-Box Account..............................................................................26
Lock-Box Agreement............................................................................26
Loss Reimbursement Amount.....................................................................26
MAI .....................................................................................27
Majority Certificateholder....................................................................27
Master Servicer...............................................................................27
Master Servicer Remittance Date...............................................................27
Master Servicing Fee..........................................................................27
Master Servicing Fee Rate.....................................................................27
Maturity Date.................................................................................27
Modified Mortgage Loan........................................................................27
Monthly Payment...............................................................................28
Mortgage .....................................................................................28
Mortgage File.................................................................................28
Mortgage Loan.................................................................................30
Mortgage Loan Purchase Agreement..............................................................30
Mortgage Loan Schedule........................................................................30
Mortgage Loan Seller..........................................................................31
Mortgage Note.................................................................................31
Mortgage Pool.................................................................................31
Mortgage Rate.................................................................................31
Mortgaged Property............................................................................31
Mortgagor.....................................................................................31
Net Aggregate Prepayment Interest Shortfall...................................................31
Net Investment Earnings.......................................................................32
Net Investment Loss...........................................................................32
Net Mortgage Rate.............................................................................32
Net Operating Income..........................................................................32
Nonrecoverable Advance........................................................................32
Nonrecoverable Delinquency Advance............................................................32
Nonrecoverable Servicing Advance..............................................................33
Non-Registered Certificate....................................................................33
Officer's Certificate.........................................................................33
Opinion of Counsel............................................................................33
OTS .....................................................................................33
Ownership Interest............................................................................33
Pass-Through Rate.............................................................................33
Payment Adjustment Date.......................................................................34
Payment Priority..............................................................................34
Penalty Charges...............................................................................34
Percentage Interest...........................................................................34
</TABLE>
-v-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Permitted Investments.........................................................................34
Permitted Transferee..........................................................................36
Person .....................................................................................37
Plan .....................................................................................37
Preliminary Statement.........................................................................37
Prepayment Assumption.........................................................................37
Prepayment Interest Excess....................................................................37
Prepayment Interest Shortfall.................................................................37
Prepayment Premium............................................................................37
Primary Servicing Office......................................................................37
Principal Allocation Fraction.................................................................37
Principal Balance Certificate.................................................................38
Principal Distribution Amount.................................................................38
Principal Prepayment..........................................................................38
Proposed Plan.................................................................................38
Prospectus....................................................................................38
PTCE 95-60....................................................................................38
Purchase Price................................................................................38
Qualified Appraiser...........................................................................38
Qualified Insurer.............................................................................38
Qualifying Substitute Mortgage Loan...........................................................38
Rated Final Distribution Date.................................................................39
Rating Agency.................................................................................39
Rating Agency Confirmation....................................................................39
Realized Loss.................................................................................39
Record Date...................................................................................40
Registered Certificates.......................................................................40
Related Borrower Group........................................................................40
Release Date..................................................................................40
Reimbursement Rate............................................................................40
REMIC ........................................................................................40
REMIC I ......................................................................................40
REMIC I Regular Interest......................................................................41
REMIC I Remittance Rate.......................................................................41
REMIC II .....................................................................................41
REMIC II Distribution Amount..................................................................41
REMIC II Regular Interest.....................................................................41
REMIC II Remittance Rate......................................................................42
REMIC III.....................................................................................42
REMIC III Certificate.........................................................................42
REMIC III Regular Certificate.................................................................42
REMIC Provisions..............................................................................42
Rents from Real Property......................................................................42
REO Account...................................................................................43
REO Acquisition...............................................................................43
REO Disposition...............................................................................43
</TABLE>
-vi-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
REO Extension.................................................................................43
REO Loan .....................................................................................43
REO Property..................................................................................44
REO Revenues..................................................................................44
REO Status Report.............................................................................44
REO Tax ......................................................................................44
Replacement Mortgage Loan.....................................................................44
Request for Release...........................................................................44
Required Appraisal Loan.......................................................................44
Reserve Account...............................................................................44
Reserve Funds.................................................................................44
Residual Certificate..........................................................................44
Responsible Officer...........................................................................45
Revised Rate..................................................................................45
Securities Act................................................................................45
Security Agreement............................................................................45
Senior Certificate............................................................................45
Servicer Watch List...........................................................................45
Servicing Account.............................................................................45
Servicing Advances............................................................................45
Servicing Fee Rate............................................................................46
Servicing Fees................................................................................46
Servicing Officer.............................................................................46
ervicing Return Date..........................................................................46
Servicing Standard............................................................................46
Servicing Transfer Event......................................................................46
Special Servicer..............................................................................46
Special Servicing Fee.........................................................................46
Special Servicing Fee Rate....................................................................46
Specially Serviced Mortgage Loan..............................................................46
Standard & Poor's.............................................................................48
Startup Day...................................................................................48
Stated Maturity Date..........................................................................48
Stated Principal Balance......................................................................48
Subordinated Certificate......................................................................48
Substitution Shortfall Amount.................................................................48
Sub-Servicer..................................................................................49
Sub-Servicing Agreement.......................................................................49
Supplemental Agreement........................................................................49
Tax Returns...................................................................................49
Tenant .....................................................................................49
Transfer .....................................................................................49
Transfer Affidavit and Agreement..............................................................49
Transferee....................................................................................49
Transferor....................................................................................49
Trust Fund....................................................................................49
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Trustee .....................................................................................49
Trustee Fee...................................................................................50
Trustee Fee Rate..............................................................................50
UCC .....................................................................................50
UCC Financing Statement.......................................................................50
Uncertificated Accrued Interest...............................................................50
Uncertificated Distributable Interest.........................................................50
Uncertificated Principal Balance..............................................................50
Underwriter...................................................................................51
Uninsured Cause...............................................................................51
United States Person..........................................................................51
USPAP ........................................................................................51
Voting Rights.................................................................................51
Weighted Average Net Mortgage Rate............................................................51
Withheld Amount...............................................................................52
Workout Fee...................................................................................52
Workout Fee Rate..............................................................................52
Section 1.02 Certain Calculations in Respect of the Mortgage Pool.............................52
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..........................53
Section 2.01 Establishment of Trust; Conveyance of Mortgage Loans.............................53
Section 2.02 Acceptance by Trustee............................................................55
Section 2.03 Mortgage Loan Sellers' Repurchase of Mortgage Loans for
Defects in Mortgage Files and Breaches of Representations and
Warranties................................................ ......................57
Section 2.04 Issuance of Class R-I Certificates; Creation of REMIC I Regular Interests........59
Section 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by the Trustee...59
Section 2.06 Issuance of Class R-II Certificates; Creation of REMIC II Regular Interest.......59
Section 2.07 Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.....60
Section 2.08 Issuance of REMIC III Certificates...............................................60
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND...........................................60
Section 3.01 Servicing and Administration of the Mortgage Loans...............................60
Section 3.02 Collection of Mortgage Loan Payments.............................................62
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts and Reserve Accounts ...................................................62
Section 3.04 Certificate Account, Distribution Account and Interest Reserve Account...........64
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account and the Interest Reserve Account............................67
</TABLE>
-viii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Section 3.06 Investment of Funds in the Certificate Account, the Distribution Account, the
Interest Reserve
Account and the REO Account......................................................70
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.... ...........................................................72
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing; Defeasance ...................................75
Section 3.09 Realization Upon Defaulted Mortgage Loans........................................78
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..................................81
Section 3.11 Servicing Compensation; Nonrecoverable Servicing Advances........................82
Section 3.12 Inspections; Collection of Financial Statements..................................85
Section 3.13 Annual Statement as to Compliance................................................86
Section 3.14 Reports by Independent Public Accountants........................................87
Section 3.15 Access to Certain Information....................................................87
Section 3.16 Title to REO Property; REO Account...............................................87
Section 3.17 Management of REO Property; Independent Contractors..............................89
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..............................91
Section 3.19 Additional Obligations of the Master Servicer and the Special Servicer...........94
Section 3.20 Modifications, Waivers, Amendments and Consents..................................97
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping ........................................................99
Section 3.22 Sub-Servicing Agreements........................................................100
Section 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class .....................................102
Section 3.24 Lock-Box Accounts and Servicing Accounts........................................102
Section 3.25 Representations and Warranties of the Master Servicer and the
Special Servicer. ..............................................................103
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS......................................104
Section 4.01 Distributions...................................................................104
Section 4.02 Statements to Certificateholders; Certain Reports by the Master
Servicer and the Special Servicer...............................................112
Section 4.03 Delinquency Advances............................................................120
Section 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses................122
ARTICLE V THE CERTIFICATES........................................................................123
Section 5.01 The Certificates................................................................123
Section 5.02 Registration of Transfer and Exchange of Certificates...........................124
Section 5.03 Book-Entry Certificates.........................................................129
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...............................130
Section 5.05 Persons Deemed Owners...........................................................130
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER.............................131
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C>
Section 6.01 Liability of the Depositor, the Master Servicer and the Special
Servicer....... ................................................................131
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................................................................131
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer and Others ................................................132
Section 6.04 Depositor, Master Servicer and Special Servicer Not to Resign...................133
Section 6.05 Rights of the Depositor in Respect of the Master Servicer and
the Special Servicer ...........................................................133
ARTICLE VII DEFAULT.................................................................................133
Section 7.01 Events of Default...............................................................133
Section 7.02 Trustee to Act; Appointment of Successor........................................136
Section 7.03 Notification to Certificateholders..............................................137
Section 7.04 Waiver of Events of Default.....................................................137
ARTICLE VIII CONCERNING THE TRUSTEE..................................................................137
Section 8.01 Duties of Trustee...............................................................137
Section 8.02 Certain Matters Affecting the Trustee...........................................138
Section 8.03 Trustee not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans .................................................................140
Section 8.04 Trustee May Own Certificates....................................................140
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee........................140
Section 8.06 Eligibility Requirements for Trustee............................................141
Section 8.07 Resignation and Removal of the Trustee..........................................141
Section 8.08 Successor Trustee...............................................................142
Section 8.09 Merger or Consolidation of Trustee..............................................143
Section 8.10 Appointment of Co-Trustee or Separate Trustee...................................143
Section 8.11 Appointment of Custodians.......................................................144
Section 8.12 Access to Certain Information...................................................145
Section 8.13 Representations and Warranties of the Trustee...................................146
Section 8.14 Filings with the Securities and Exchange Commission.............................147
ARTICLE IX TERMINATION.............................................................................147
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans................147
Section 9.02 Additional Termination Requirements.............................................149
ARTICLE X ADDITIONAL REMIC PROVISIONS.............................................................150
Section 10.01 REMIC Administration............................................................150
Section 10.02 Depositor, Master Servicer, Special Servicer, Trustee to Cooperate..............153
Section 10.03 Grantor Trust Administration....................................................153
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................155
</TABLE>
-x-
<PAGE>
TABLE OF CONTENTS
(continued)
Section 11.01 Amendment............................................155
Section 11.02 Recordation of Agreement; Counterparts...............157
Section 11.03 Limitation on Rights of Certificateholders...........157
Section 11.04 GOVERNING LAW........................................158
Section 11.05 Notices..............................................158
Section 11.06 Severability of Provisions...........................159
Section 11.07 Grant of a Security Interest.........................159
Section 11.08 Successors and Assigns; Beneficiaries................159
Section 11.09 Article and Section Headings.........................160
Section 11.10 Notices to the Rating Agencies.......................160
-xi-
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
Exhibit A-1 Form of Class X Certificate............................................................A-1-1
Exhibit A-2 Form of Class A-1 Certificate..........................................................A-2-1
Exhibit A-3 Form of Class A-2 Certificate..........................................................A-3-1
Exhibit A-4 Form of Class B Certificate............................................................A-4-1
Exhibit A-5 Form of Class C Certificate............................................................A-5-1
Exhibit A-6 Form of Class D Certificate............................................................A-6-1
Exhibit A-7 Form of Class E Certificate............................................................A-7-1
Exhibit A-8 Form of Class F Certificate............................................................A-8-1
Exhibit A-9 Form of Class G Certificate............................................................A-9-1
Exhibit A-10 Form of Class H Certificate...........................................................A-10-1
Exhibit A-11 Form of Class J Certificate...........................................................A-11-1
Exhibit A-12 Form of Class K Certificate...........................................................A-12-1
Exhibit A-13 Form of Class R-I Certificate.........................................................A-13-1
Exhibit A-14 Form of Class R-II Certificate........................................................A-14-1
Exhibit A-15 Form of Class R-III Certificate.......................................................A-15-1
Exhibit B-1 Form of Transferor Certificate.........................................................B-1-1
Exhibit B-2 Form of Transferee Certificate.........................................................B-2-1
Exhibit B-3 Form of Transferee Certificate.........................................................B-3-1
Exhibit C-1 Form of Transfer Affidavit and Agreement...............................................C-1-1
Exhibit C-2 Form of Transferor Certificate.........................................................C-2-1
Exhibit D Form of Request for Release..............................................................D-1
Exhibit E Form of UCC-1 Financing Statement........................................................E-1
Exhibit F Methodology to Normalize Net Operating Income and Debt Service
Coverage................. ...............................................................F-1
Exhibit G Form of Distribution Date Statement......................................................G-1
Exhibit H Form of Master Servicer Report...........................................................H-1
Exhibit I Certain Reports..........................................................................I-1
Exhibit J Form of CSSA Periodic Loan File..........................................................J-1
Exhibit K Form of Investor Certification...........................................................K-1
SCHEDULES
Schedule I Mortgage Loan Schedule..............................................................Sch. I-1
</TABLE>
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of February 1, 1999, among GMAC COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund to be created hereunder, the primary assets
of which will be the Mortgage Loans. The aggregate of the initial Cut-off Date
Principal Balances of the Mortgage Loans is approximately $1,334,328,273.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans (exclusive of that portion of interest
payments thereon that constitute Excess Interest) and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I". The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. With respect
to each Mortgage Loan, there shall be a corresponding REMIC I Regular Interest.
The designation for each such REMIC I Regular Interest shall be the loan number
for the related Mortgage Loan set forth on the schedule 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 as of the Cut-off Date and the
Cut-off Date Principal Balance, respectively, for the related Mortgage Loan.
Determined solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each such REMIC I
Regular Interest shall be the first Distribution Date that follows the Stated
Maturity Date for the related Mortgage Loan. None of the REMIC I Regular
Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II." The Class R-II Certificates will represent the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, REMIC II
Remittance Rate and the initial Uncertificated Principal Balance for each of the
REMIC II Regular Interests. Determined solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each REMIC II Regular Interest shall be the first Distribution Date
that is at least two years after the end of the remaining amortization schedule
of the Mortgage Loan that has, as of the Closing Date, the longest remaining
amortization schedule, irrespective of its scheduled maturity. None of the REMIC
II Regular Interests will be certificated.
<PAGE>
<TABLE>
<CAPTION>
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
- ----------- --------------- ----------------------
<S> <C> <C>
LA-1................................. Variable (*) $ 240,000,000
LA-2................................. Variable (*) $ 680,686,000
LB................................... Variable (*) $ 66,716,000
LC................................... Variable (*) $ 66,717,000
LD................................... Variable (*) $ 86,731,000
LE................................... Variable (*) $ 20,015,000
LF................................... Variable (*) $ 83,396,000
LG................................... Variable (*) $ 13,343,000
LH................................... Variable (*) $ 26,686,000
LJ................................... Variable (*) $ 20,015,000
LK................................... Variable (*) $ 30,023,273
</TABLE>
* Calculated in accordance with the definition of "REMIC II Remittance Rate."
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R-III Certificates will represent the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate and initial Class Principal Balance for each
of the Classes of REMIC III Regular Certificates. Determined solely for purposes
of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each Class of REMIC III Regular Certificates shall
be the first Distribution Date that is at least two years after the end of the
remaining amortization schedule of the Mortgage Loan that has, as of the Closing
Date, the longest remaining amortization schedule, irrespective of its scheduled
maturity.
2
<PAGE>
<TABLE>
<CAPTION>
Certificate Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
<S> <C> <C>
Class X.............................. N/A(1) N/A(2)
Class A-1............................ 5.830% $ 240,000,000
Class A-2............................ 6.175%(3) $ 680,686,000
Class B.............................. 6.295%(3) $ 66,716,000
Class C.............................. 6.590%(3) $ 66,717,000
Class D.............................. 6.865%(4) $ 86,731,000
Class E.............................. 6.865%(4) $ 20,015,000
Class F.............................. 6.020%(3) $ 83,396,000
Class G.............................. 6.020%(3) $ 13,343,000
Class H.............................. 6.020%(3) $ 26,686,000
Class J.............................. 6.020%(3) $ 20,015,000
Class K.............................. 6.020%(3) $ 30,023,273(5)
</TABLE>
(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
$1,334,328,273. The Class X Certificates will not have a Certificate
Principal Balance and will not be entitled to any distribution of
certificate principal.
(3) Lesser of the indicated Fixed Rate or the Weighted Average Net
Mortgage Rate.
(4) Initial Pass-Through Rate. The Pass-Through Rate will be the Weighted
Average Net Mortgage Rate.
(5) The Class K Certificates shall consist of two (2) subclasses: Class
K-1 Certificates with an initial Certificate Principal Balance of
$22,517,455 and Class K-2 Certificates with an initial Certificate
Principal Balance of $7,505,818.
As provided herein, the Trustee shall take all actions necessary to ensure
that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a "grantor trust" under federal income tax law and not
be treated as part of REMIC I, REMIC II or REMIC III.
Capitalized terms used in this Preliminary Statement are defined in Article
I hereof.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
3
<PAGE>
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 Information": As defined in Section 4.02(a).
"Additional Trust Fund Expense": Any unanticipated expense within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii) experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the REMIC III Regular Certificateholders'
receiving less than the full amount of principal and/or interest to which they
are entitled on any Distribution Date.
"Adjustable Rate Mortgage Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for periodic adjustments to the
Mortgage Rate thereon based on changes in the related Index.
"Advance": Any Delinquency Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the Reimbursement
Rate and payable to the Master Servicer, the Special Servicer or the Trustee, as
the case may be, all in accordance with Section 3.11(f) or Section 4.03(d), as
applicable.
"Adverse Grantor Trust Event": As defined in Section 10.03(e).
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct
4
<PAGE>
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date upon
which such ARD Loan starts to accrue interest at its Revised Rate.
"Applicable State Law": For purposes of Article X, the Applicable State Law
shall be (a) the laws of the State and City of New York, (b) the laws of the
states in which the Corporate Trust Office of the Trustee and the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located,
(c) other state or local law as to which the Trustee as the REMIC administrator
has actual knowledge of applicability and (d) such other state or local law
whose applicability shall have been brought to the attention of the Trustee as
REMIC administrator by either (i) an opinion of counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law.
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required or permitted to be performed pursuant to the
terms of this Agreement, either: (i) a narrative appraisal complying with USPAP
conducted by a Qualified Appraiser in the case of Mortgage Loans and REO Loans
with a Stated Principal Balance as of the date of such appraisal of greater than
$1,000,000; or (ii) a limited appraisal and a summary report of the "market
value" of the Mortgaged Property conducted by a Qualified Appraiser in the case
of Mortgage Loans and REO Loans with a Stated Principal Balance as of the date
of such appraisal of $1,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount (as calculated on the Determination Date immediately succeeding the
date on which the most recent relevant Appraisal was obtained by the Master
Servicer or the Special Servicer, as the case may be, pursuant to this
Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer or the Trustee, all
accrued and unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to such Determination Date at a per annum rate equal to
the related Mortgage Rate, (iii) all related unreimbursed Advances made by or on
behalf of the Master Servicer, the Special Servicer or the Trustee in respect of
such Required Appraisal Loan, together with all unpaid Advance Interest accrued
on such Advances, and (iv) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property, net of any Escrow Payments or
other reserves held by the Master Servicer or the Special Servicer with respect
to any such item, over (b) 90% of an amount equal to (i) the Appraised Value of
the related Mortgaged Property or REO Property, as applicable, as determined by
such Appraisal referred to in the parenthetical above, net of (ii) the amount of
any liens on such property (not accounted for in clause (a)(iv) of this
definition or taken into account in determining such Appraised Value) that are
prior to the lien of the Required Appraisal Loan. Notwithstanding the foregoing,
if an Appraisal is not obtained within 120 days following the
5
<PAGE>
earliest of the dates described in Section 3.19(d) (which, in the case of
Section 3.19(d)(ii), shall be the date of the occurrence of an uncured
delinquency in Monthly Payments), then until such Appraisal is obtained the
Appraisal Reduction Amount will equal 25% of the Stated Principal Balance of the
related Required Appraisal Loan; provided that, upon receipt of an Appraisal,
however, the Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with this definition without regard to this sentence.
"Appraised Value": As of any date of determination, the appraised value of
a Mortgaged Property based upon the most recent Appraisal obtained pursuant to
this Agreement.
"ARD Loan": Any Mortgage Loan that is designated as such in the Mortgage
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 (or in the case of a Late Due Date Mortgage Loan, on or before the end of
the Collection Period immediately preceding the Collection Period in which such
Stated Maturity Date occurs)) and for any subsequent Due Date therefor as of
which such Mortgage Loan remains outstanding and part of the Trust Fund (or, in
the case of a Late Due Date Mortgage Loan, for any subsequent Due Date therefor
which follows in the same month a Determination Date as of which such Mortgage
Loan remains outstanding and part of the Trust Fund), if no Monthly Payment
(other than the related Balloon Payment) is due for such Due Date, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
for the Stated Maturity Date and each such subsequent Due Date equal to the
Monthly Payment (exclusive of any Excess Interest) that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to accrue interest in accordance with its terms, and to pay principal
in accordance with the amortization schedule (if any), in effect immediately
prior to, and without regard to the occurrence of, its most recent scheduled
maturity date. With respect to any REO Loan, for any Due Date therefor as of
which (or, in the case of a Late Due Date Mortgage Loan, for any Due Date
therefor which follows in the same month a Determination Date as of which) the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment (or, in the case of a Balloon Mortgage
Loan described in the preceding sentence of this definition, the Assumed Monthly
Payment) exclusive of any Excess Interest that was due (or deemed due) in
respect of the related Mortgage Loan for the last Due Date prior to its becoming
an REO Loan.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the sum of (i) the aggregate amount relating to the Trust
Fund on deposit in
6
<PAGE>
the Certificate Account and the Distribution Account as of the close of business
on the related Determination Date, (ii) the aggregate amount of any Delinquency
Advances made by the Master Servicer or Trustee for such Distribution Date
pursuant to Section 4.03, (iii) the aggregate of any Compensating Interest
Payments made by the Master Servicer for such Distribution Date pursuant to
Section 3.19, (iv) in the case of the Final Distribution Date, the aggregate of
any Liquidation Proceeds paid by the Master Servicer or the Depositor in
connection with a purchase of all the Mortgage Loans and any REO Properties
pursuant to Section 9.01, (v) with respect to the Distribution Date occurring in
March of each calendar year, the Withheld Amounts with respect to the Interest
Reserve Loans deposited in the Interest Reserve Account by the Trustee in
January and/or February of such calendar year in accordance with Section
3.04(c), and (vi) with respect to any Late Due Date Mortgage Loan, the Monthly
Payment (other than any Balloon Payment) due in the same calendar month as such
Distribution Date and received on or before its Due Date, net of (b) the
aggregate portion of the amount described in clause (a) hereof that represents
one or more of the following: (i) Monthly Payments (except those referred to in
clause (a)(vi) above) paid by the Mortgagors that are due on a Due Date
following the end of the related Collection Period, (ii) any amounts payable or
reimbursable to any Person from the Certificate Account pursuant to clauses (ii)
- - (xvii), inclusive, of Section 3.05(a), (iii) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to clauses
(ii) - (vii), inclusive, of Section 3.05(b), (iv) Prepayment Premiums and Excess
Interest, (v) any amounts deposited in the Certificate Account or the
Distribution Account, as the case may be, in error, and (vi) with respect to the
Distribution Date occurring in (A) January of each calendar year that is not a
leap year and (B) February of each calendar year, the Withheld Amounts with
respect to the Interest Reserve Loans deposited in the Interest Reserve Account
by the Trustee with respect to such Distribution Date in accordance with Section
3.04(c). Notwithstanding the investment of funds held in the Certificate Account
or the Distribution Account pursuant to Section 3.06, for purposes of
calculating the Available Distribution Amount, the amounts so invested shall be
deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Monthly Payment payable on the Maturity Date of such
Mortgage Loan.
"Balloon Payment Interest Excess": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan) as to which the Stated Maturity
Date occurs in the same Collection Period as the prior Due Date for such
Mortgage Loan, and as to which the related Balloon Payment is paid during such
Collection Period after such prior Due Date, the amount of interest (net of
related Servicing Fees and, if applicable, Excess Interest) accrued on such
Mortgage Loan from such prior Due Date to, but not including, the date the
related Balloon Payment is paid, to the extent such interest is actually paid by
the related Mortgagor in connection with the payment of the related Balloon
Payment on or before such Stated Maturity Date.
"Balloon Payment Interest Shortfall": With respect to any Balloon Mortgage
Loan (other than a Late Due Date Mortgage Loan) as to which the Stated Maturity
Date occurs
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after the Determination Date in any calendar month, and as to which the related
Balloon Payment was made during the Collection Period in which such Stated
Maturity Date occurs, the amount of interest that would have accrued on such
Mortgage Loan at the related Net Mortgage Rate from such Stated Maturity Date to
but not including the date that (but for the occurrence of such Stated Maturity
Date) would otherwise have been the next succeeding scheduled Due Date, to the
extent not paid by the related Mortgagor. With respect to any Late Due Date
Mortgage Loan that is a Balloon Mortgage Loan as to which the related Balloon
Payment is paid during the Collection Period in which the related Stated
Maturity Date occurs, the amount of interest that would have accrued on such
Late Due Date Mortgage Loan at the related Net Mortgage Rate from such Stated
Maturity Date to the date that (but for the occurrence of such Stated Maturity
Date) would have been the Due Date in the next calendar month, to the extent not
paid by the related Mortgagor.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Bloomberg": As defined in Section 4.02(a).
"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.
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"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 1999-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 case may be, and
the denominator of which is the related Initial Class Principal Balance or the
Initial Class Notional Amount, as the case may be.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement, any
Certificate registered in the name of the Master Servicer, the Special Servicer,
the Trustee, the Depositor or any Affiliate of either shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver has been obtained,
except as otherwise provided in Sections 7.04 and 11.01. The Trustee shall be
entitled to request and rely upon a certificate of the Master Servicer, the
Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register as of the related Record Date.
"Certificate Notional Amount": With respect to any Class X Certificate, as
of any date of determination, the then notional principal amount on which such
Certificate accrues 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.
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"Certificate Register" and "Certificate Registrar": The register maintained
and registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
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"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K-1" or
"Class K-2" designation on the face thereof, substantially in the form of
Exhibit A-12 attached hereto, and evidencing a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class K-1 Certificate": Any one of the Class K Certificates with a "Class
K-1" designation on the face thereof.
"Class K-2 Certificate": Any one of the Class K Certificates with a "Class
K-2" designation on the face thereof.
"Class LA-1 Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-1 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LA-1 outstanding from time to time.
"Class LA-2 Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LA-2 Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LA-2 outstanding from time to time.
"Class LB Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LB Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LB outstanding from time to time.
"Class LC Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LC Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LC outstanding from time to time.
"Class LD Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LD Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LD outstanding from time to time.
"Class LE Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LE Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LE outstanding from time to time.
"Class LF Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest,
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subject to the terms and conditions hereof, in an amount based upon the Class LF
Component Rate and the Uncertificated Principal Balance of REMIC II Regular
Interest LF outstanding from time to time.
"Class LG Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LG Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LG outstanding from time to time.
"Class LH Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LH Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LH outstanding from time to time.
"Class LJ Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LJ Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LJ outstanding from time to time.
"Class LK Component": A non-certificated beneficial ownership interest in
REMIC III, designated as a "regular interest" therein and entitled to
distributions of interest, subject to the terms and conditions hereof, in an
amount based upon the Class LK Component Rate and the Uncertificated Principal
Balance of REMIC II Regular Interest LK outstanding from time to time.
"Class LA-1 Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-1
Pass-Through Rate.
"Class LA-2 Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-2
Pass-Through Rate.
"Class LB Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class B
Pass-Through Rate.
"Class LC Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class C
Pass-Through Rate.
"Class LD Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class D
Pass-Through Rate for such Distribution Date.
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"Class LE Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class E
Pass-Through Rate for such Distribution Date.
"Class LF Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class F
Pass-Through Rate for such Distribution Date.
"Class LG Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution Date.
"Class LH Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution Date.
"Class LJ Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
"Class LK Component Rate": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class K
Pass-Through Rate for such Distribution Date.
"Class Notional Amount": The aggregate notional principal amount on which
the Class X Certificates accrue interest from time to time which, as of any date
of determination, is equal to the then aggregate of the Uncertificated Principal
Balances of REMIC II Regular Interests LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH,
LJ 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-13
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-I Distribution Amount": With respect to any Distribution Date, any
amounts available to be paid to the holders of the Class R-I Certificates on
such date after all REMIC I Regular Interests have been paid in full.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and
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evidencing the sole class of "residual interests" in REMIC II for purposes of
the REMIC Provisions.
"Class R-II Distribution Amount": With respect to any Distribution Date,
any amounts available to be paid to the holders of the Class R-II Certificates
on such date after all REMIC II Regular Interests have been paid in full.
"Class R-III Certificate": Any one of the Certificates with a "Class R-III"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions.
"Class R-III Distribution Amount": With respect to any Distribution Date,
any amounts available to be paid to the holders of the Class R-III Certificates
on such date after all REMIC III Regular Certificates have been paid in full.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-1,
evidencing "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Class X Component": Any of the eleven (11) components constituting
"regular interests" in REMIC III for purposes of the REMIC Provisions and
comprising the Class X Certificates. Such components are identified as Class
LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH, LJ and LK Components.
"Closing Date": February 9, 1999.
"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 and Extraordinary 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 reflected
in the definition for such component herein.
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"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 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attention: Corporate Trust Services (CMBS) - GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
1999-C1. All requests relating to the transfer of Certificates should be
delivered to the Trustee at Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS) - GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
1999-C1.
"Corrected Mortgage Loan": Any Mortgage Loan (and each related
Cross-Collateralized Mortgage Loan) that had been a Specially Serviced Mortgage
Loan but has ceased to be such in accordance with the definition of "Specially
Serviced Mortgage Loan" (other than by reason of a Liquidation Event occurring
in respect of such Mortgage Loan or a related Mortgaged Property becoming an REO
Property).
"CPR": An assumed constant rate of prepayment each month (which is quoted
on a per annum basis) relative to the then outstanding principal balance of a
pool of mortgage loans for the life of such mortgage loans.
"Credit File": Any documents, other than documents required to be part of
the related Mortgage File, in the possession of the Master Servicer or Special
Servicer and relating to the origination and servicing of any Mortgage Loan.
"Credit Lease": With respect to each Credit Lease Loan, the lease agreement
between the Mortgagor as lessor and the Tenant as lessee of the related Mortgage
Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as a "Credit
Lease Loan" on the Mortgage Loan Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage Loans
listed on the Mortgage Loan Schedule that are cross-collateralized with each
other.
"CSSA Periodic Loan File": The monthly report in the "CSSA periodic loan
file" format containing such information for the Mortgage Loans as may be
reasonably requested by the Depositor, which report shall be substantially in
the form attached hereto as Exhibit J.
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"Current Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate of the following (without duplication):
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans and any REO Loans for their
respective Due Dates occurring during the same calendar month as such
Distribution Date;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the related
Stated Maturity Date occurred or any ARD Loan as to which the related
Anticipated Repayment Date occurred, during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was made
by or on behalf of the related Mortgagor during the related Collection
Period, net of any portion of such payment that represents a recovery of
the principal portion of any Monthly Payment (other than a Balloon Payment)
due, or the principal portion of any Assumed Monthly Payment deemed due, in
respect of such Mortgage Loan on a Due Date during or prior to the same
calendar month as such Distribution Date and not previously recovered;
(d) that portion of all Liquidation Proceeds and Insurance Proceeds
received on or in respect of the Mortgage Loans during the related
Collection Period that were identified and applied by the Master Servicer
as recoveries of principal thereof, in each case net of any portion of such
amounts that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal portion of
any Assumed Monthly Payment deemed due, in respect of any such Mortgage
Loan on a Due Date during or prior to the same calendar month as such
Distribution Date and not previously recovered; and
(e) that portion of all Liquidation Proceeds, Insurance Proceeds and
REO Revenues received on or in respect of any REO Properties during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal of the REO Loans, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the related Mortgage Loan on a Due Date during or
prior to same calendar month as such Distribution Date and not previously
recovered.
"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": With respect to any Mortgage Loan, the Due Date for such
Mortgage Loan in February 1999.
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"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.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent in an amount
equal to at least two Monthly Payments or is delinquent thirty days or more in
respect of its Balloon Payment, if any, in either case such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note.
"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), any amounts collected thereon, other than interest at the Revised Rate
accrued on any ARD Loan after its Anticipated Repayment Date, late payment
charges and Prepayment Premiums, that represent penalty interest in excess of
interest on the principal balance of such Mortgage Loan (or REO Loan) accrued at
the related Mortgage Rate.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": Noncallable government obligations of (or
non-callable obligations, fully guaranteed as to timely payment by) the United
States of America, as are permitted under the terms of a Mortgage Note or
related Mortgage Loan Documents, but only if such obligations or assets
constitute "government securities" under the defeasance rule of the REMIC
Provisions.
"Defeasance Loan": A Mortgage Loan that is designated as such on the
Mortgage 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.
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"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased from the
Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"Delinquency Advance": As to any Mortgage Loan or REO Loan, any advance
made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Delinquency Advance Date": The Business Day preceding each Distribution
Date.
"Delinquent Loan Status Report": A report or reports setting forth, among
other things, those Mortgage Loans which, as of the close of business on the
immediately preceding Determination Date, were (i) delinquent 30-59 days, (ii)
delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current but
specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to Mortgaged Property
which had become REO Property, together with such additional information in
respect of each such Mortgage Loan as is contemplated on Exhibit H hereto.
"Depositor": GMAC Commercial Mortgage Securities, Inc. or its successor in
interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the 5th day of
the month in which such Distribution Date occurs, or if such 5th day is not a
Business Day, the Business Day immediately following.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not (within the meaning of
Treasury Regulations Section 1.512(b)-1(c)(5)) customarily provided to tenants
in connection with the rental of space for occupancy, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade or
business conducted by REMIC I, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or
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renews leases, deals with taxes and insurance, or makes decisions as to repairs
(of the type that would be deductible under Code Section 162) or capital
expenditures with respect to such REO Property.
"Discount Rate": With respect to each Mortgage Loan as to which there has
been a prepayment during a Collection Period and for which a Prepayment Premium
is collected, the yield (compounded monthly) for "This Week" as reported by the
Federal Reserve Board in Federal Reserve Statistical Release H.15(519) for the
constant maturity treasury having a maturity coterminous with the Anticipated
Repayment Date, in the case of an ARD Loan, or the Maturity Date, in the case of
each other Mortgage Loan, of such Mortgage Loan as of the related Determination
Date. If there is no Discount Rate for instruments having a maturity coterminous
with the Maturity Date or Anticipated Repayment Date, as applicable, of the
applicable Mortgage Loan, then the Discount Rate will be equal to the linear
interpolation of the yields of the constant maturity treasuries with maturities
next longer and shorter than such Maturity Date or Anticipated Repayment Date,
as the case may be.
"Discount Rate Fraction": With respect to the distribution of any
Prepayment Premium received with respect to any Mortgage Loan to the Holders of
any Class of Principal Balance Certificates on any Distribution Date, a fraction
(not greater than 1.0 or less than zero), (a) the numerator of which is equal to
the excess, if any, of (x) the Pass-Through Rate for such Class of Certificates
over (y) the relevant Discount Rate and (b) the denominator of which is equal to
the excess, if any, of (x) the Mortgage Rate of the related Mortgage Loan over
(y) the relevant Discount Rate.
"Distributable Certificate Interest": With respect to any Class of REMIC
III Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date allocated to
such Class of Certificates as set forth below. The Net Aggregate Prepayment
Interest Shortfall, if any, for each Distribution Date shall be allocated on
such Distribution Date among the REMIC Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date. The Net Aggregate Prepayment
Interest Shortfall, if any, allocated to the Class X Certificate for each
Distribution Date shall be allocated to each Class X Component pro rata, in
accordance with the respective amount of Accrued Certificate Interest
attributable to such Class X Component.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association, as Trustee, in trust for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series 1999-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 March
1999.
"Distribution Date Statement": As defined in Section 4.02(a).
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"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due; (ii) any
Balloon Mortgage Loan after the Maturity Date therefor, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on such
Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan, the
day of the month set forth in the related Mortgage Note on which each Monthly
Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": An account that is any of the following: (i) maintained
with a depository institution or trust company whose (A) commercial paper,
short-term unsecured debt obligations or other short-term deposits are rated at
least A-1 in the case of Standard & Poor's and if rated by FITCH IBCA, F-1+ (or
its equivalent), if the deposits are to be held in the account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at least AA- in the
case of Standard & Poor's and if rated by FITCH IBCA, AA- (or its equivalent),
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 and, except to the extent
limited by applicable law, interest accrued at the Revised Rate on any such
accrued interest that is unpaid. The Excess Interest is an asset of the Trust
Fund which is a Grantor Trust Asset not held in REMIC I, REMIC II or REMIC III.
"Excess 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.
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"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Extraordinary Prepayment Interest Shortfall": With respect to any Late Due
Date Mortgage Loan that was subject to a Principal Prepayment in full or in part
(including, without limitation, an early Balloon Payment) during any Collection
Period, which Principal Prepayment was applied to such Late Due Date Mortgage
Loan prior to such Mortgage Loan's Due Date in the next succeeding Collection
Period, the amount of interest that would have accrued at the related Net
Mortgage Rate on the amount of such Principal Prepayment from the date as of
which such Principal Prepayment was received to but not including the Due Date
of such Mortgage Loan in the next succeeding Collection Period, to the extent
not collected from the related Mortgagor (without regard to any Prepayment
Premium or Excess Interest that may have been collected) and to the extent that
any portion thereof does not represent a Balloon Payment Interest Shortfall.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by a
Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement, 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.
"FITCH IBCA": FITCH IBCA, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "FITCH IBCA" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer and
specific ratings of FITCH IBCA, Inc. herein referenced shall be deemed to refer
to the equivalent ratings of the party so designated.
"Fixed Rate Mortgage Loan": A Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that remains
fixed through the remaining term thereof (without regard to any extension at the
Mortgagor's or the mortgagee's option under the terms of the related Mortgage
Loan documents).
"FNMA": Federal National Mortgage Association or any successor.
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"GMACCM": GMAC Commercial Mortgage Corporation or its successor in
interest.
"Grantor Trust": That certain "grantor trust" (within the meaning of the
Grantor Trust Provisions), the assets of which include the Grantor Trust Assets.
"Grantor Trust Assets": Any Excess Interest.
"Grantor Trust Provisions": Subpart E of Subchapter J and Section 7701 of
the Code, and final Treasury Regulations, published rulings, notices and
announcements, promulgated thereunder, as the foregoing may be in effect from
time to time.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan (and any
successor REO Loan), the fixed number of percentage points set forth in the
Mortgage Loan Schedule that is added to the applicable value of the related
Index on each Interest Rate Adjustment Date in accordance with the terms of the
related Mortgage Note to determine, subject to any applicable periodic and
lifetime limitations on adjustments thereto, the related Mortgage Rate.
"Ground Lease": The ground lease pursuant to which any Mortgagor holds a
leasehold interest in the related Mortgaged Property.
"Guarantor The guarantor under any Guaranty with respect to a Credit Lease.
"Guaranty": With respect to any Credit Lease Loan, a guaranty agreement
executed by an affiliate of the related Tenant that guarantees the Tenant's
obligations under the related Credit Lease.
"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
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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 and any and all Affiliates thereof, (ii) does not
have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or any Affiliate thereof, and (iii) is not connected with the Depositor,
the Master Servicer, the Special Servicer, the Trustee or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Master Servicer, the Special
Servicer or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, the
Master Servicer or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, delivered to the Trustee), so long as REMIC I does not receive
or derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust Fund, to the effect that the taking of any action in respect of any
REO Property by such Person, subject to any conditions therein specified, that
is otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan (and any
successor REO Loan), for each Interest Rate Adjustment Date, the base index used
to determine the new Mortgage Rate in effect thereon as specified in the related
Mortgage Note. If the Index currently in effect for any Adjustable Rate Mortgage
Loan (or successor REO Loan) ceases to be available, the Master Servicer shall,
subject to Section 3.19(a) and the terms of the related Mortgage Note, select a
comparable alternative index.
"Initial Balance": The aggregate Cut-off Date Principal Balance of the
Mortgage 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
$1,334,328,273.
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"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).
"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.
"Interest Reserve Account": The segregated account created and maintained
by the Trustee pursuant to Section 3.04(c) in trust for the Certificateholders,
which shall be entitled "Norwest Bank Minnesota, National Association, as
Trustee, in trust for the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series 1999-C1 -- Interest
Reserve Account." Any such account shall be an Eligible Account.
"Interest Reserve Loans": Any Mortgage Loan bearing interest computed on an
actual/360 basis.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Holder of a Certificate, or any Affiliate of any such Person.
"Investment Account": Each of the Certificate Account, the Distribution
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account or any REO Account.
"Investor Certification": A certification in the form of Exhibit K hereto.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Liquidation Proceeds, payments of Substitution Shortfall Amounts, or otherwise,
which represent late
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payments or collections of principal or interest due in respect of such Mortgage
Loan (without regard to any acceleration of amounts due thereunder by reason of
default) on a Due Date in a previous Collection Period (or, in the case of a
Late Due Date Mortgage Loan, on any Due Date prior to the date of receipt) and
not previously recovered. With respect to any Distribution Date and any REO
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan
(without regard to any acceleration of amounts due under the predecessor
Mortgage Loan by reason of default) on a Due Date in a previous Collection
Period (or, in the case of a Late Due Date Mortgage Loan, on any Due Date prior
to the date of receipt) and not previously recovered. The term "Late
Collections" shall specifically exclude Penalty Charges.
"Late Due Date Mortgage Loan": Any Mortgage Loan (or successor REO Loan)
with a Due Date which occurs after the Determination Date in the same calendar
month as such Due Date.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased or replaced by a Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section
4 of either Supplemental Agreement; (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b);
(v) such Mortgage Loan is purchased by the Master Servicer or the Special
Servicer pursuant to Section 3.18(c); or (vi) such Mortgage Loan is purchased by
the Master Servicer or the Depositor pursuant to Section 9.01. With respect to
any REO Property (and the related REO Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property; or (ii)
such REO Property is purchased by the Master Servicer or the Depositor pursuant
to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by the Special Servicer in connection with
the liquidation of any Specially Serviced Mortgage Loan or REO Property pursuant
to Section 3.09 or 3.18 (including, without limitation, legal fees and expenses,
committee or referee fees and, if applicable, brokerage commissions and
conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
purchased by the Majority Certificateholder of the Controlling Class, the Master
Servicer or the Special Servicer pursuant to Section 3.18 or by the Master
Servicer or the Depositor pursuant to Section 9.01), the fee designated as such
and payable to the Special Servicer pursuant to Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgaged
Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds and REO
Revenues) received or paid by the Master Servicer or the Special Servicer in
connection with: (i)
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the taking of all or a part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation; (ii) the liquidation of a Mortgaged Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b)
or by the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or
any other sale thereof pursuant to Section 3.18(d); (v) the repurchase of a
Mortgage Loan by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement or by GMACCM pursuant to Section 4 of either
Supplemental Agreement; (vi) the payment of any Substitution Shortfall Amount by
a Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan
Purchase Agreement or by GMACCM pursuant to Section 4 of either Supplemental
Agreement; or (vii) the purchase of a Mortgage Loan or REO Property by the
Master Servicer or the Depositor pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the then unpaid principal balance of such Mortgage Loan, and the denominator
of which is the Appraised Value of the related Mortgaged Property as determined
by an Appraisal thereof.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.06, which Person shall be taxed on
all reinvestment income or gain thereon. The Master Servicer shall be permitted
to make withdrawals therefrom for deposit into the related Cash Collateral
Accounts.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the originator of such Mortgage Loan and the
Mortgagor, pursuant to which the related Lock-Box Account, if any, is to be
established.
"Loss Reimbursement Amount": With respect to any REMIC I Regular Interest
and any Distribution Date (except the initial Distribution Date, with respect to
which the Loss Reimbursement Amount for such REMIC I Regular Interest will be
zero), an amount equal to (a)(i) the Loss Reimbursement Amount with respect to
such REMIC I Regular Interest for the immediately preceding Distribution Date,
minus (ii) the aggregate of all reimbursements deemed made to REMIC II on the
immediately preceding Distribution Date pursuant to Section 4.01(a)(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)
on the amount described in clause (a) at the REMIC I Remittance Rate applicable
to such REMIC I Regular Interest for the current Distribution Date.
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"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 Servicing Fee": With respect to any Distribution Date and each
Mortgage Loan and REO Loan, the Servicing Fee 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, 0.02% per annum.
"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, (iii) any modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
or (iv) in the case of an ARD Loan, the Anticipated Repayment Date for such
Mortgage Loan.
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage, results
in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in
an amount not less than the fair market value (as is), as determined by an
Appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely), of
the property to be released; or
(C) in the good faith and reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the
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likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled monthly
payment of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, which is payable by a Mortgagor from time to time under the
terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, without regard to the accrual of
Excess Interest on or the application of any excess cash flow to pay principal
on any ARD Loan.
"Mortgage": With respect to any Mortgage Loan, separately and collectively,
as the context may require, each mortgage, deed of trust or other instrument
securing a Mortgage Note and creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Section
2.01(b), collectively the following documents:
(1) the original Mortgage Note, endorsed by the most recent endorsee prior
to the Trustee or, if none, by the originator, without recourse, in blank
or to the order of the Trustee in the following form: "Pay to the order of
Norwest Bank Minnesota, National Association, as trustee for the registered
holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1999-C1, without recourse";
(2) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated thereon;
(3) an original assignment of the Mortgage, in recordable form, executed by
the most recent assignee of record thereof prior to the Trustee, or if none
by the originator, either in blank or in favor of the Trustee (in such
capacity);
(4) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(5) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee, or, if none, by the originator, either in blank or in favor of the
Trustee (in such capacity), which assignment may be included as part of the
corresponding assignment of Mortgage, referred to in clause (3) above;
(6) an original or a copy of any related Security Agreement (if such item
is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
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(7) an original assignment of any related Security Agreement (if such item
is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (3) above;
(8) originals or copies of all assumption, modification, written assurance
and substitution agreements, with evidence of recording thereon, where
appropriate, in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(9) the original or a copy of the lender's title insurance policy, together
with all endorsements or riders (or copies thereof) that were issued with
or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(10) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to the
Trustee together with (A) if applicable, the original or copies of any
intervening assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original
assignment of such guaranty executed by the most recent assignee thereof
prior to the Trustee or, if none, by the originator;
(11) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to
the personalty of the Mortgagor at the Mortgaged Property (in each case
with evidence of filing thereon) and which were in the possession of the
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;
(12) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above
was not signed by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) if the Mortgage Loan is a Credit Lease Loan, an original of the credit
lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if
any, obtained with respect to such Mortgage Loan; and
(15) any additional documents required to be added to the Mortgage File
pursuant to
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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 or interests therein
transferred and assigned to the Trustee pursuant to Section 2.01 and from time
to time held in the Trust Fund (including, without limitation, all Replacement
Mortgage Loans). As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage, participation certificate and/or other security
documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreement": With respect to any Mortgage Loan
Seller, the agreement between the Depositor and such Mortgage Loan Seller
relating to the transfer of all of such Mortgage Loan Seller's right, title and
interest in and to the Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Schedule I, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the related
Mortgaged Property;
(iii) the (A) Mortgage Rate in effect as of the Cut-off Date and (B)
whether such Mortgage Loan is an Adjustable Rate Mortgage Loan or a Fixed
Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect to each
ARD Loan, the Anticipated Repayment Date and (C) Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an Adjustable Rate Mortgage Loan, the (A) Index, (B)
Gross Margin, (C) first Mortgage Rate adjustment date following the Cut-off
Date and the frequency of Mortgage Rate adjustments, and (D) maximum and
minimum lifetime Mortgage Rate;
(x) whether such Mortgage Loan is an ARD Loan, a Credit Lease Loan or a
Defeasance Loan;
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(xi) in the case of a Credit Lease Loan, the identity of the Tenant and the
Guarantor under any applicable Guaranty, and the publicly available
corporate credit ratings of such Tenant and Guarantor as of the Closing
Date; and
(xii) the Servicing Fee Rate.
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": GMACCM, German American Capital Corporation,
Restructured Asset Certificates with Enhanced Returns, Series 1998-ML Trust and
any other Person (other than the Depositor) that is a party to a Mortgage Loan
Purchase Agreement.
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans (including any REO
Loans and Replacement Mortgage Loans, but excluding Deleted Mortgage Loans).
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior to its
Maturity Date, the fixed or adjustable annualized rate (not including, in the
case of any ARD Loan, any increase in the rate of interest to the Revised Rate)
at which interest is scheduled (in the absence of a default) to accrue on such
Mortgage Loan from time to time in accordance with the terms of the related
Mortgage Note (as such may be modified at any time following the Closing Date)
and applicable law; (ii) any Mortgage Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to the
passage of such Maturity Date; and (iii) any REO Loan, the annualized rate
described in clause (i) or (ii), as applicable, above determined as if the
predecessor Mortgage Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context may
require, the real property interest 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.
"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.
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"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds relating to the
Trust Fund held in such account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds relating to the Trust Fund held in such account in accordance with Section
3.06, exceeds the aggregate of all interest and other income realized during
such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as of
any date of determination, a rate per annum equal to the related Mortgage Rate
then in effect, minus the Servicing Fee Rate, but, for purposes of calculating
the REMIC I Remittance Rate, the REMIC II Remittance Rate and Weighted Average
Net Mortgage Rate, determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or Special Servicer or resulting from (i) the bankruptcy, insolvency or
similar proceeding involving the related Mortgagor or (ii) the increase in the
interest rate attributable to the Revised Rate to any ARD Loan and, with respect
to any Mortgage Loan that does not accrue interest on the basis of a 360-day
year consisting of twelve 30-day months, the Net Mortgage Rate of such Mortgage
Loan for such purposes for any one-month preceding a related Due Date will be
the annualized rate at which interest would have to accrue in respect of such
loan on the basis of a 360-day year consisting of twelve 30-day months in order
to produce the aggregate amount of interest actually accrued in respect of such
loan during such one-month period at the related Mortgage Rate (net of the
related Servicing Fee Rate); provided, however, that with respect to the
Interest Reserve Loans, (i) the Net Mortgage Rate for the one-month period
preceding the Due Dates in (a) January of each calendar year that is not a leap
year and (b) February of each calendar year, will be determined net of the
Withheld Amounts and (ii) the Net Mortgage Rate for the one-month period
preceding the Due Dates in March of each calendar year will be determined after
taking into account the addition of the Withheld Amounts.
"Net Operating Income": With respect to any Mortgaged Property, for any
specified period, the net operating income calculated in accordance with Exhibit
G using the methodologies set forth in Exhibit F.
"Nonrecoverable Advance": Any Nonrecoverable Delinquency Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable Delinquency Advance": Any Delinquency Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Loan which, in
the judgment of the Master Servicer or, if applicable, the Trustee, will not be
ultimately recoverable (together with Advance Interest thereon) from late
payments, Insurance Proceeds or Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan or REO Loan. The determination by the Master
Servicer or, if applicable, the Trustee, that it has made a Nonrecoverable
Delinquency Advance or that any proposed Delinquency Advance, if made,
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would constitute a Nonrecoverable Delinquency Advance, shall be evidenced by an
Officer's Certificate delivered to the Depositor and delivered to or retained by
the Trustee, detailing a reasonable basis for such determination. The Trustee
shall be entitled to rely conclusively upon any such Officer's Certificate of
the Master Servicer.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property which, in
the judgment of the Master Servicer, the Special Servicer or, if applicable, the
Trustee, will not be ultimately recoverable (together with Advance Interest
thereon) from late payments, Insurance Proceeds, Liquidation Proceeds, or any
other recovery on or in respect of such Mortgage Loan or REO Property. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be evidenced by an Officers' Certificate delivered to the
Depositor and delivered to or retained by the Trustee, detailing a reasonable
basis for such determination. The Trustee shall be entitled to rely conclusively
upon any such Officer's Certificate of the Master Servicer 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 F, 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 0.690%
per annum, and (b) for any subsequent Distribution Date, the per annum
rate, expressed as a percentage, obtained by dividing (i) the sum of the
products of (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; and
(2) the Class A-1 Certificates, for any Distribution Date, the fixed rate
per annum
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specified for such Class in the Preliminary Statement;
(3) the Class A-2, Class B, Class C, Class F, Class G, Class H, Class J and
Class K Certificates, for any Distribution Date, the lesser of the fixed
rate per annum specified as such in the Preliminary Statement and the
Weighted Average Net Mortgage Rate; and
(4) the Class D and Class E Certificates, for any Distribution Date, the
Weighted Average Net Mortgage Rate.
"Payment Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, any date on which the related Monthly Payment is subject to adjustment
pursuant to the related Mortgage Note. The first Payment Adjustment Date
subsequent to the Cut-off Date for each Adjustable Rate Mortgage Loan is
specified in the Mortgage 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, as set forth in Section 4.01(c) hereof.
"Penalty Charges": With respect to any Mortgage Loan (or successor REO
Loan), any amounts collected thereon that represent late payment charges or
Default Interest.
"Percentage Interest": With respect to any REMIC III Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or the
Certificate Notional Amount of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the Initial Class
Principal Balance or Initial Class Notional Amount of the relevant Class. With
respect to a Residual Certificate, the percentage interest in distributions to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"Permitted Investments": Securities, instruments, or security entitlements
with respect to one or more of the following:
(1) obligations of or guaranteed as to principal and interest by the United
States or any agency or instrumentality thereof when such obligations are
backed by the full faith and credit of the United States;
(2) repurchase agreements on obligations specified in clause (i) maturing
not more than 30 days from the date of acquisition thereof, provided that
the unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in its highest
short-term rating available;
(3) federal funds, unsecured certificates of deposit, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States
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dollars of any U.S. depository institution or trust company incorporated
under the laws of the United States or any state thereof or of any domestic
branch of a foreign depository institution or trust company; provided that
the short-term debt obligations of such depository institution or trust
company at all times since the date of acquisition thereof have been rated
by each Rating Agency in its highest short-term rating available (or, if
not rated by FITCH IBCA, otherwise acceptable to FITCH IBCA as confirmed in
writing that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current rating assigned
to any Class of Certificates by such Rating Agency); and 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;
(4) commercial paper (having original maturities of not more than 365 days)
of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by each
Rating Agency in its highest short-term rating available (or, if not rated
by FITCH IBCA, otherwise acceptable to FITCH IBCA as confirmed in writing
that such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current rating assigned to any
Class of Certificates by such Rating Agency); provided that such commercial
paper shall have a remaining maturity of not more than 30 days;
(5) a money market fund rated by each Rating Agency in its highest rating
category;
(6) commercial paper of issuers rated by each Rating Agency in its highest
short-term rating available (or, if not rated by FITCH IBCA, otherwise
acceptable to FITCH IBCA as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then current rating assigned to any Class of Certificates by such
Rating Agency); provided that such obligations shall have a remaining
maturity of not more than 30 days and such obligations are limited to the
right to receive only monthly principal and interest payments;
(7) short-term debt obligations of issuers rated A-1 (or the equivalent) by
each Rating Agency (or, if not rated by FITCH IBCA, otherwise acceptable to
FITCH IBCA as confirmed in writing that such investment would not, in and
of itself, result in a downgrade, qualification or withdrawal of the then
current rating assigned to any Class of Certificates by such Rating Agency)
having a maturity of not more than 30 days; provided that the total amount
of such investment does not exceed the greater of (A) 20% of the then
outstanding principal balance of the Certificates, and (B) the amount of
monthly principal and interest payments (other than Balloon Payments)
payable on the Mortgage Loans during the preceding Collection Period;
provided, further, and notwithstanding the preceding proviso, that if all
of the Mortgage Loans are fully amortizing, then the amount of such
investment shall not exceed the amount of monthly principal and interest
payments (other than Balloon Payments) payable on the Mortgage Loans during
the preceding Collection Period;
(8) fully Federal Deposit Insurance Corporation-insured demand and time
deposits in,
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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 IBCA, otherwise
acceptable to FITCH IBCA as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then current rating assigned to any Class of Certificates by such
Rating Agency); and
(9) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and which would not result in
the downgrade, qualification or withdrawal of the then-current rating
assigned to any Class of Certificates by the Rating Agency, as evidenced in
writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, (1) the right to receive only interest payments with respect to the
underlying debt instrument, (2) the right to receive both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations, (3) an obligation that has a remaining maturity of greater than 365
days from the date of acquisition thereof. 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 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 FITCH IBCA,
and references herein to the highest rating available on unsecured commercial
paper and short-term debt obligations shall mean A-1+ in the case of Standard &
Poor's and F-1+ in the case of FITCH IBCA.
"Permitted Transferee": Any Transferee other than (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) any electing large partnership under
Section 775 of the Code and (vi) any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
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"Person": Any legal person, including, without limitation, any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Plan": As defined in Section 5.02(c)(i).
"Preliminary Statement": The introductory section in this Agreement found
on pages 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 (other than
a Late Due Date Mortgage Loan) that was subject to a Principal Prepayment in
full or in part during any Collection Period, which Principal Prepayment was
received following such Mortgage Loan's Due Date in such Collection Period, the
amount of interest (net of related Servicing Fees and, if applicable, Excess
Interest) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date, to the extent collected (without regard to any
Prepayment Premium that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan (other
than a Late Due Date Mortgage Loan) that was subject to a Principal Prepayment
in full or in part (including, without limitation, an early Balloon Payment)
during any Collection Period, which Principal Prepayment was received prior to
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
that would have accrued at the related Net Mortgage Rate on the amount of such
Principal Prepayment during the period from the date as of which such Principal
Prepayment was applied to such Mortgage Loan to but not including such Due Date,
to the extent not collected from the related Mortgagor (without regard to any
Prepayment Premium or Excess Interest that may have been collected).
"Prepayment Premium": Any premium, penalty or fee paid or payable, as the
context requires, by a Mortgagor in connection with a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan or REO Loan.
"Primary Servicing Office": With respect to each of the Master Servicer and
the Special Servicer, the office thereof primarily responsible for performing
its respective duties under this Agreement; initially located in Illinois, in
the case of the Master Servicer, and California, in the case of the Special
Servicer.
"Principal Allocation Fraction": With respect to any Distribution Date and
each of Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates, a fraction the numerator of which is the portion of the Principal
Distribution Amount allocable to such Class of Certificates for such
Distribution Date and the denominator of which is the Principal Distribution
Amount for all Classes of Certificates as of such Distribution Date.
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"Principal Balance Certificate": Any REMIC III Regular Certificate other
than a Class X Certificate.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of (i) the Current Principal Distribution Amount for such Distribution
Date and (ii) if such Distribution Date is after the initial Distribution Date,
the excess, if any, of the Principal Distribution Amount for the preceding
Distribution Date, over the aggregate distributions of principal made on the
Principal Balance Certificates in respect of such Principal Distribution Amount
on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The Prospectus dated November 5, 1998, as supplemented by the
Prospectus Supplement dated February 2, 1999, relating to the offering of the
Registered Certificates.
"PTCE 95-60": As defined in Section 5.02(c)(ii).
"Purchase Price": With respect to any Mortgage Loan, a price equal to the
outstanding principal balance of such Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate in effect from time to time to but not including the Due
Date in the Collection Period of purchase, (b) all related unreimbursed
Servicing Advances, (c) all accrued and unpaid interest in respect of related
Advances, and (d) if such Mortgage Loan is being purchased by a Mortgage Loan
Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement or
by GMACCM pursuant to Section 4 of either Supplemental Agreement, all expenses
reasonably incurred or to be incurred by the Master Servicer (unless such
Mortgage Loan Seller is acting as Master Servicer), the Depositor and the
Trustee in respect of the Breach or Defect giving rise to the repurchase
obligation. With respect to any REO Property, the amount calculated in
accordance with the preceding sentence in respect of the related REO Loan.
"Qualified Appraiser": In connection with the appraisal of any Mortgaged
Property or REO Property, an Independent MAI-designated appraiser or, if a
MAI-designated appraiser is not reasonably available, a state certified
appraiser, in each case, with at least five (5) years experience in appraising
similar types of property.
"Qualified 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
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at a rate of interest at least equal to that of the Deleted Mortgage Loan; (iii)
has a fixed Mortgage Rate if the Deleted Mortgage Loan is a Fixed Rate Mortgage
Loan and an adjustable Mortgage Rate (with the same Index, Gross Margin and
frequency of Interest Rate Adjustment Dates and Payment Adjustment Dates as the
Deleted Mortgage Loan) if the Deleted Mortgage Loan is an Adjustable Rate
Mortgage Loan; (iv) is accruing interest on the same basis (for example, a
360-day year consisting of twelve 30-day months) as the Deleted Mortgage Loan;
(v) has a remaining term to stated maturity or Anticipated Repayment Date, in
the case of an ARD Loan, not greater than, and not more than two years less
than, that of the Deleted Mortgage Loan; (vi) has an original Loan-to-Value
Ratio not higher than that of the Deleted Mortgage Loan and a current
Loan-to-Value Ratio (equal to the principal balance on the date of substitution
divided by its Appraised Value as determined by an Appraisal dated not more than
twelve months prior to the date of substitution) not higher than the then
current Loan-to-Value Ratio of the Deleted Mortgage Loan; (vii) will comply with
all of the representations and warranties relating to Mortgage Loans set forth
in the related Mortgage Loan Purchase Agreement, as of the date of substitution;
(viii) has an Environmental Assessment relating to the related Mortgaged
Property 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 Rated Final Distribution Date, and provided, further,
that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless Rating Agency Confirmation is obtained. In the event that either one
mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is substituted for one or more Deleted Mortgage Loans,
then (a) the principal balance referred to in clause (i) above shall be
determined on the basis of aggregate principal balances and (b) the rates
referred to in clauses (ii) and (iii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis. Whenever a Qualifying Substitute Mortgage Loan is substituted for
a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in May 15, 2033.
"Rating Agency": Each of Standard & Poor's and FITCH IBCA.
"Rating Agency Confirmation": With respect to any matter and any Rating
Agency, where required under this Agreement, confirmation in writing by such
Rating Agency that a proposed action, failure to act, or other event specified
herein will not in and of itself result in the withdrawal, downgrade or
qualification of the rating assigned by such Rating Agency to any Class of
Certificates then rated by such Rating Agency. For all purposes of this
Agreement, the placement by a Rating Agency of any Class of Certificates on
"negative credit watch" shall constitute a qualification of such Rating Agency's
rating of such Certificates.
"Realized Loss": With respect to each defaulted Mortgage Loan as to which a
Final Recovery Determination has been made, or with respect to any REO Loan as
to which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the Due
Date immediately preceding the date the Final Recovery
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Determination was made, plus (ii) all accrued but unpaid interest on such
Mortgage Loan or REO Loan, as the case may be (without taking into account the
amounts described in subclause (iv) of this sentence), at the related Mortgage
Rate to but not including the Due Date in the Collection Period (or, in the case
of a Late Due Date Mortgage Loan, the Due Date in the Collection Period
immediately following the Collection Period) in which the Final Recovery
Determination was made, plus (iii) any related unreimbursed Servicing Advances
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (iv) all payments and proceeds, if any,
received in respect of such Mortgage Loan or REO Loan, as the case may be,
during the Collection Period in which such Final Recovery Determination was made
(net of any related Liquidation Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest (other than Excess Interest) owed
thereunder was forgiven in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20, the amount of such principal or interest so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced for any period in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Monthly Payment due
thereon. Each such Realized Loss shall be deemed to have been incurred on the
Due Date for each affected Monthly Payment.
"Record Date": With respect to any Distribution Date, the last Business Day
of the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Registered Certificates": The Class X, Class A-1, Class A-2, Class B,
Class C, Class D and Class E Certificates.
"Related Borrower Group": Any of the groups of Mortgage Loans having the
same or related Mortgagors as identified in Annex A to the Prospectus Supplement
dated February 2, 1999 under the column heading "Related Group."
"Release Date": As defined in Section 3.08(c).
"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
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election is to be made, consisting of: (i) the Mortgage Loans as from time to
time are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received or receivable after the Cut-off Date (other than (a)
Excess Interest and (b) payments of principal, interest and other amounts due
and payable on the Mortgage Loans on or before the Cut-off Date), together with
all documents delivered or caused to be delivered under the Mortgage Loan
Purchase Agreements with respect to the Mortgage Loans by the Mortgage Loan
Sellers; (ii) any REO Properties acquired in respect of the Mortgage Loans;
(iii) such funds or assets (other than Excess Interest) as from time to time are
deposited in the Distribution Account, the Certificate Account and the REO
Account (if established); and (iv) the rights of the Depositor under Sections 2,
4(a) and 6 of each Mortgage Loan Purchase Agreement and the rights of the
Depositor under Sections 2 and 4 of each Supplemental Agreement assigned by the
Depositor to the Trustee.
"REMIC I Regular Interest": With respect to each Mortgage Loan (and any
successor REO Loan), the separate non-certificated beneficial ownership interest
in REMIC I issued hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall accrue interest at the related REMIC I
Remittance Rate and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance (which shall equal the Cut-off Date Principal
Balance of the related Mortgage Loan). The designation for each REMIC I Regular
Interest shall be the loan number for the initial related Mortgage Loan set
forth in the Mortgage Loan Schedule. If a Replacement Mortgage Loan or Loans are
substituted for any Deleted Mortgage Loan, the REMIC I Regular Interest that
related to the Deleted Mortgage Loan shall thereafter relate to such Replacement
Mortgage Loan(s).
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest for
any Distribution Date, a rate per annum equal to the Net Mortgage Rate in effect
for the related Mortgage Loan or REO Loan, as the case may be. If any Mortgage
Loan included in the Trust Fund as of the Closing Date is replaced by a
Replacement Mortgage Loan or Loans, the REMIC I Remittance Rate for the related
REMIC I Regular Interest shall still be calculated in accordance with the
preceding sentence based on the Net Mortgage Rate for the Deleted Mortgage Loan.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC II Distribution Amount": As defined in Section 4.01(a).
"REMIC II Regular Interest": Any of the eleven (11) separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
designated as a "regular interest" in REMIC II and identified individually as
REMIC II Regular Interests LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH, LJ 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.
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Each REMIC II Regular Interest corresponds to a Class of Principal Balance
Certificates and a Class X Component as follows:
REMIC II Class of Principal Class X
Regular Interest Balance Certificates Component
- ---------------- -------------------- ---------
Class LA-1 Class A-1 Class LA-1 Component
Class LA-2 Class A-2 Class LA-2 Component
Class LB Class B Class LB Component
Class LC Class C Class LC Component
Class LD Class D Class LD Component
Class LE Class E Class LE Component
Class LF Class F Class LF Component
Class LG Class G Class LG Component
Class LH Class H Class LH Component
Class LJ Class J Class LJ Component
Class LK Class K Class LK Component
"REMIC II Remittance Rate": With respect to each REMIC II Regular Interest,
for any Distribution Date, the weighted average of the respective REMIC I
Remittance Rates for all REMIC I Regular Interests for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances of
the related REMIC I Regular Interests immediately prior to such Distribution
Date).
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC III Certificate": Any Certificate, other than a Class R-I or Class
R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than a
Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final Treasury regulations (and, to the extent not inconsistent
with such temporary and final regulations, proposed regulations) and any
published rulings, notices and announcements, promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
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(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in buildings
of a similar class in the same geographic market as such REO Property
within the meaning of Treasury Regulations Section 1.856-4(b)(1) (whether
or not such charges are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": A segregated account or accounts created and maintained by
the Special Servicer pursuant to Section 3.16(b) on behalf of the Trustee in
trust for the Certificateholders, which shall be entitled "GMAC Commercial
Mortgage Corporation, as Special Servicer, in trust for registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 1999-C1".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to the applicable Assumed
Monthly Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan, including, without limitation, with respect to the
calculation of the Mortgage Rate in effect from time to 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
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REO Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed
Monthly Payments and other amounts due and owing in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition shall be deemed to
continue to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer or the Trustee in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unreimbursed Advances, together
with any Advance Interest accrued and payable in respect of such Advances, shall
continue to be payable or reimbursable to the Master Servicer, the Special
Servicer or the Trustee, as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf and in the name of the Trustee for the benefit of the Certificateholders
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the ownership,
operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form of
Exhibit H attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the immediately preceding Determination Date, (i) the Acquisition
Date of such REO Property, (ii) the amount of income collected with respect to
such REO Property (net of related expenses) and other amounts, if any, received
on such REO Property during the Collection Period ending on such Determination
Date and (iii) the value of the REO Property based on the most recent Appraisal
or other valuation thereof available to the Master Servicer as of such date of
determination (including any valuation prepared internally by the Special
Servicer).
"REO Tax": As defined in Section 3.17(a)(i).
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan that
is substituted for one or more Deleted Mortgage Loans.
"Request for Release": A release signed by a Servicing Officer, in the form
of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(d).
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any cash amounts or
instruments convertible into cash delivered by the related Mortgagor to be held
in escrow by or on behalf of the mortgagee representing reserves for items such
as repairs, replacements, capital 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.
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"Responsible Officer": When used with respect to the initial Trustee, any
officer of its Asset-Backed Securities Trust Services Group with direct
responsibility for the transaction contemplated by this Agreement and with
respect to any successor Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or assistant trust officer, or any assistant controller in its corporate trust
department or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"Revised Rate": With respect to each ARD Loan, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for such ARD
Loan, as calculated and as set forth in the related Mortgage Note or Mortgage
and further modification by the Master Servicer pursuant to Section 3.19(h) or
(k) (relating to certain Mortgage Loans modified within 90 days of the Start-up
Day).
"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 or Class A-2 Certificate.
"Servicer Watch List": A report or reports setting forth, among other
things, certain Mortgage Loans that (i) have experienced a decrease of at least
10% in debt service coverage from the previous reporting period (unless the
Master Servicer shall have reasonably determined that such decrease is due to
the seasonal nature or use of the related Mortgaged Property), (ii) have
experienced a loss of or bankruptcy of the largest tenant (to the extent the
Servicer has actual knowledge of such loss or bankruptcy) or (iii) are within
six months of maturity.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Master Servicer, the Special Servicer or,
if applicable, the Trustee in connection with the servicing and administering of
(a) a Mortgage Loan in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default is imminent or (b) an
REO Property, including, but not limited to, the cost of (i) compliance with the
obligations of the Master Servicer and/or the Special Servicer set forth in
Section 3.03(c) and 3.09(c), (ii) the preservation, restoration and protection
of a Mortgaged Property, (iii) obtaining any Insurance Proceeds or any
Liquidation Proceeds in respect of any Mortgage Loan or REO Property, (iv) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures, and (v) the operation, management, maintenance and
liquidation of any REO
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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 and the Trustee Fee.
"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 (1) through (8) of the
definition of "Specially Serviced Mortgage Loan".
"Special Servicer": GMACCM, or any successor special servicer appointed as
herein provided.
"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 (and each related
Cross-Collateralized Mortgage Loan) as to which any of the following events has
occurred:
(1) the related Mortgagor has failed to make when due any Balloon Payment,
which failure has continued unremedied for 30 days; or
(2) the related Mortgagor has failed to make when due any Monthly Payment
(other than a Balloon Payment) or any other payment required under the
related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(3) the Master Servicer has determined in its good faith and reasonable
judgment, that a default in the making of a Monthly Payment or any other
payment required under the related Mortgage Note or the related Mortgage is
likely to occur within 30 days and is
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likely to remain unremedied for at least 60 days or, in the case of a
Balloon Payment, for at least 30 days; or
(4) there shall have occurred a default, other than as described in clause
(1) or (2) above, that materially impairs the value of the related
Mortgaged Property as security for the Mortgage Loan or otherwise
materially and adversely affects the interests of Certificateholders, which
default has continued unremedied for the applicable grace period under the
terms of the Mortgage Loan (or, if no grace period is specified, 60 days);
or
(5) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the related Mortgagor and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or
(6) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(7) the related Mortgagor shall have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(8) the Master Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property or Properties become REO Property or
Properties, or at such time as such of the following as are applicable occur
with respect to the circumstances identified above that caused the Mortgage Loan
to be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists with respect to the particular
Mortgage Loan or any related Cross-Collateralized Mortgage Loan):
(w) with respect to the circumstances described in clauses (1) and (2)
above, the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special Servicer pursuant
to Section 3.20);
(x) with respect to the circumstances described in clauses (3), (5),
(6) and (7) above, such circumstances cease to exist in the good faith and
reasonable judgment
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of the Special Servicer;
(y) with respect to the circumstances described in clause (4) above,
such default is cured; and
(z) with respect to the circumstances described in clause (8) above,
such proceedings are terminated.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "Standard & Poor's" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer, and the Special Servicer,
and specific ratings of Standard & Poor's Rating 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 or, in the case of any ARD Loan, the
Anticipated Repayment Date for such Mortgage Loan.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
related REO Loan), the Cut-off Date Principal Balance of such Mortgage Loan (or
in the case of a Replacement Mortgage Loan, as of the related date of
substitution), as reduced on each Distribution Date (to not less than zero) by
(i) all payments (or Delinquency Advances in lieu thereof) of, and all other
collections allocated as provided in Section 1.02 to, principal of or with
respect to such Mortgage Loan (or related REO Loan) that are (or, if they had
not been applied to cover any Additional Trust Fund Expense, would have been)
distributed to Certificateholders on such Distribution Date, and (ii) the
principal portion of any Realized Loss incurred in respect of such Mortgage Loan
(or related REO Loan) during the related Collection Period. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or 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": 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
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Deleted Mortgage Loan(s) exceeds the initial Stated Principal Balance or
aggregate Stated Principal Balance, as the case may be, of such Replacement
Mortgage Loan(s).
"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.
"Supplemental Agreement": Each of (i) the Supplemental Agreement dated as
of February 9, 1999 between GMACCM and Restructured Asset Certificates with
Enhanced Returns, Series 1998-ML Trust and (ii) the Supplemental Agreement dated
as of February 9, 1999 between GMACCM and German American Capital Corporation,
in each case, as amended, restated or otherwise supplemented from time to time.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I, REMIC II and REMIC III due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, or
Applicable State Law.
"Tenant": With respect to each Credit Lease Loan, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, the Excess Interest and all of the assets of
REMIC I, REMIC II and REMIC III.
"Trustee": Norwest Bank Minnesota, National Association, in its capacity as
Trustee under this Agreement, its successor in interest, or any successor
trustee appointed as herein provided.
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"Trustee Fee": With respect to any Distribution Date and each Mortgage Loan
and REO Loan, an amount equal to one-twelfth of the product of the Trustee Fee
Rate and the aggregate Stated Principal Balance of such Mortgage Loan or REO
Loan immediately following the prior Distribution Date.
"Trustee Fee Rate": 0.00130%.
"UCC": The Uniform Commercial Code of any applicable jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on the
basis of a 360 day year consisting of twelve 30-day months) at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. With
respect to any REMIC II Regular Interest, for any Distribution Date, one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) at the REMIC II Remittance Rate applicable to such REMIC II Regular
Interest for such Distribution Date, accrued on the Uncertificated Principal
Balance of such REMIC II Regular Interest outstanding immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any REMIC I
Regular Interest or REMIC II Regular Interest for any Distribution Date shall be
deemed to accrue during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
and the denominator of which is the aggregate Uncertificated Accrued Interest in
respect of all the REMIC I Regular Interests for such Distribution Date. With
respect to any REMIC II Regular Interest for any Distribution Date, an amount
equal to: (a) the Uncertificated Accrued Interest in respect of such REMIC II
Regular Interest for such Distribution Date; reduced (to not less than zero) by
(b) the portion, if any, of the Net Aggregate Prepayment Interest Shortfall, if
any, for such Distribution Date allocated to such REMIC II Regular Interest
which shall be allocated in the same manner as such Net Aggregate Prepayment
Interest Shortfall is allocated amongst the corresponding REMIC III Regular
Certificates.
"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance of
the related Mortgage Loan. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be reduced by all
distributions of principal deemed to have been made thereon on such Distribution
Date
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pursuant to Section 4.01(a) and, if and to the extent appropriate, shall be
further reduced on such Distribution Date as provided in Section 4.04(a). As of
the Closing Date, the Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each such REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(b) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(b).
"Underwriter": Each of Goldman, Sachs & Co., Deutsche Bank Securities Inc.
and Donaldson, Lufkin & Jenrette 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 (except, in the
case of a partnership, to the extent provided in Treasury regulations), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
"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-2, Class K-1,
Class J, Class H, Class G, Class F, Class E, Class D, Class C, Class B and Class
A Certificates (pro rata between the Class A-1 and Class A-2 Certificates), in
that order, for purposes of calculating Voting Rights.
"Weighted Average Net Mortgage Rate": With respect to any Distribution
Date, the REMIC II Remittance Rate for each REMIC II Regular Interest for such
Determination Date.
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"Withheld Amount": With respect to (a) each Interest Reserve Loan and (b)
each Distribution Date occurring in (i) January of each calendar year that is
not a leap year and (ii) February of each calendar year, an amount equal to one
day's interest at the related Mortgage Rate (less any Servicing Fee payable
therefrom) on the respective Stated Principal Balance as of the Due Date in the
month in which such Distribution Date occurs, to the extent that a Monthly
Payment or Delinquency Advance is made in respect thereof. The term "Withheld
Amount" shall also include, with respect to the Distribution Date in March 1999,
the initial deposit made by the Depositor to the Interest Reserve Account
pursuant to Section 3.04(c).
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.00%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each such Mortgage Loan. All amounts collected in respect of any Mortgage
Loan (whether or not such Mortgage Loan is a Cross-Collateralized Mortgage Loan)
in the form of payments from Mortgagors, Liquidation Proceeds or Insurance
Proceeds shall be applied to amounts due and owing under the related Mortgage
Note and Mortgage (including, without limitation, for principal and accrued and
unpaid interest) in accordance with the express provisions of the related
Mortgage Note and Mortgage and, in the absence of such express provisions, shall
be applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Penalty Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any other amounts (other than Excess Interest) then due
and owing under such Mortgage Loan; ninth, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and tenth, if such Mortgage Loan is an ARD Loan, as a
recovery of any Excess Interest then due and owing on such Mortgage Loan.
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(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related unreimbursed Servicing Advances; second, as a recovery of accrued and
unpaid interest on the related REO Loan at the related Mortgage Rate to but not
including the Due Date in the month of receipt; third, as a recovery of
principal of the related REO Loan to the extent of its entire unpaid principal
balance; and fourth, as a recovery of any other amounts deemed to be due and
owing in respect of the related REO Loan.
(c) The 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.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Establishment of Trust; Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby establish a trust, appoint the Trustee to serve as trustee of such
trust and assign to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor, including
any security interest therein for the benefit of the Depositor, in, to and under
(i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections
2, 4(a), 6 and 13 of each Mortgage Loan Purchase Agreement and Sections 2, 4 and
6 of each Supplemental Agreement and (iii) all other assets included or to be
included in REMIC I. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans (other than
payments of principal 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 (with a copy to
the Master Servicer), on or before the Closing Date, the Mortgage File for each
of such Mortgage Loan Seller's Mortgage Loans so assigned. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note, the Mortgage Loan Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed. If the related
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(2), (4), (11) and (12) of the definition of "Mortgage File", with evidence of
recording or filing, as the case may be, thereon, because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded document
has been lost or returned from the recording or filing office and
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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 and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to or at the direction of the Trustee within 180 days of
the Closing Date (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably withheld so long
as the related Mortgage Loan Seller has provided the Trustee with evidence of
such recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy). If the related Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (9) of the definition of
"Mortgage File" solely because such policy has not yet been issued, the delivery
requirements of this Section 2.01(b) shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the related Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan, and the related Mortgage Loan Seller shall deliver to the
Trustee or such Custodian, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any group of related Cross-Collateralized Mortgage Loans only one
original of any document referred to in the definition of "Mortgage File"
covering all the Mortgage Loans in such group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. Neither the Trustee nor any Custodian shall in any
way be liable for any failure by the Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b).
If any of the endorsements referred to in clause (1) of the definition of
"Mortgage File", or any of the assignments referred to in clauses (3), (5) and
(7) of the definition of "Mortgage File", are delivered to the Trustee in blank,
the Trustee shall be responsible for 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 (3)
and (5) of the definition of "Mortgage File" and each UCC-2 and UCC-3 referred
to in clause (11)(B) of the definition of "Mortgage File"; provided, however,
that each Mortgage Loan Seller shall have the right to direct the Trustee, in
writing, to cause the aforementioned
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recording and filing requirements to be completed (within the specified time
period) by a Person other than the Trustee, in which case the Trustee shall (i)
promptly deliver the referenced documents to such Person for recording and
filing and (ii) notify the related Mortgage Loan Seller with respect to each
Mortgage Loan for which the related assignment or file copy of any UCC-2 and
UCC-3 has not been received within the time period specified in Section 2.02(b).
Each such assignment shall reflect that it should be returned by the public
recording office to the Trustee or its designee following recording, and each
such UCC-2 and UCC-3 shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing. Promptly following receipt, the
Trustee shall, at the expense of the respective Mortgage Loan Seller, deliver a
copy of any such document or instrument to the Master Servicer. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Trustee shall direct the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement
promptly to prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate.
(d) All documents and records in the Depositor's or any Mortgage Loan
Seller's possession relating to the Mortgage Loans that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer on or before the Closing Date and shall be held
by the Master Servicer (or a Sub-Servicer retained thereby) on behalf of the
Trustee in trust for the benefit of the Certificateholders. If the Sub-Servicer
shall hold any original documents and records delivered to it pursuant to this
clause (d) then the Sub-Servicer shall deliver copies thereof to the Master
Servicer.
(e) In connection with the Depositor's assignment pursuant to subsection
(a) above, the Depositor shall deliver, and hereby represents and warrants that
it has delivered, to the Trustee and the Master Servicer, on or before the
Closing Date, a fully executed original counterpart of each Mortgage Loan
Purchase Agreement, 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 (1), (2), (3), (9) and (12) of the definition
of "Mortgage File", of a fully executed original counterpart of each Mortgage
Loan Purchase Agreement and of all other assets included in REMIC I and
delivered to it, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and the other documents delivered or caused to be delivered by the Mortgage Loan
Sellers constituting the Mortgage Files, and that it holds and will hold such
other assets included in REMIC I, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(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
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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 (1), (2), (3), (9) and (12) of the definition of "Mortgage
File" are in its possession or the related Mortgage Loan Seller has otherwise
satisfied the delivery requirements in accordance with Section 2.01(b) and (ii)
all documents delivered or caused to be delivered by the related Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan.
(c) The Trustee or a Custodian on its behalf shall review each of the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Depositor, 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 (1), (2), (9) and
(12) of the definition of "Mortgage File" are in its possession or the related
Mortgage Loan Seller has otherwise satisfied the delivery requirements in
accordance with Section 2.01(b), (ii) it or a Custodian on its behalf has
received either a recorded original of each of the assignments specified in
clauses (3) and, insofar as an unrecorded original thereof had been delivered or
caused to be delivered by the related Mortgage Loan Seller, (5) of the
definition of "Mortgage File" or a copy of such recorded original certified by
the applicable public recording office to be true and complete and (iii) all
Mortgage Loan documents received by it or any Custodian have been reviewed by it
or by such Custodian on its behalf and appear regular on their face and relate
to such Mortgage Loan.
(d) It is acknowledged that neither the Trustee nor any Custodian is under
any duty or obligation (i) to determine whether any of the documents specified
in clauses (4) - (8), (10), (11), (13), (14) and (15) 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. 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
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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.
SECTION 2.03 Mortgage Loan Sellers' Repurchase of Mortgage Loans for
Defects in Mortgage Files and Breaches of Representations
and Warranties.
(a) If the Trustee discovers or receives notice of a Defect in any Mortgage
File or a breach of any representation or warranty set forth in or made pursuant
to Section 4(a) of each Mortgage Loan Purchase Agreement or Section 2(a) of
either Supplemental Agreement (a "Breach"), which Defect or Breach, as the case
may be, materially and adversely affects the value of any Mortgage Loan or the
interests of the Certificateholders therein, or if the Trustee discovers or
receives notice of any event that would give rise to the repurchase of a
Mortgage Loan pursuant to Section 6(b) of any Mortgage Loan Purchase Agreement
or Section 4(b) of either Supplemental Agreement, the Trustee shall give prompt
written notice of such Defect, Breach or event, as the case may be, to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies and
the related Mortgage Loan Seller (and GMACCM, in the case of such a Defect,
Breach or event under a Supplemental Agreement) and shall request that the
related Mortgage Loan Seller (or GMACCM, in the case of such a Defect, Breach or
event under the Supplemental Agreement), within the time period provided for in
the related Mortgage Loan Purchase Agreement or Supplemental Agreement, as
applicable, cure such Defect, Breach or event, as the case may be, in all
material respects or repurchase the affected Mortgage Loan at the applicable
Purchase Price in conformity with the related Mortgage Loan Purchase Agreement
or Supplemental Agreement, as applicable; provided, however, that in lieu of
effecting any such repurchase, a Mortgage Loan Seller (or GMACCM, in the case of
such a Defect, Breach or event under the Supplemental Agreement) will be
permitted until the second anniversary of the Closing Date 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 or Supplemental Agreement, as
applicable, and this Agreement; provided, further, that if such Breach would
cause the Mortgage Loan to be other than a "qualified mortgage" under Section
860G(a)(3) of the Code, such Breach shall be cured or the related Mortgage Loan
shall be repurchased or replaced with a Qualifying Substitute Mortgage Loan
within 90 days of discovery.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee shall
direct the related Mortgage Loan Seller (or GMACCM, in the case of such a
Defect, Breach or event under the Supplemental Agreement) to deliver to the
Trustee for such Qualifying Substitute Mortgage Loan or Loans (with a copy to
the Master Servicer), the related Mortgage File(s) with the related Mortgage
Note(s) endorsed as required by clause (1) of the definition of "Mortgage File".
No substitution may be made in any calendar month after the Determination Date
for such month. Monthly Payments due with respect to Qualifying Substitute
Mortgage Loans in the month of substitution shall not be part of the Trust Fund
and will be retained by Master Servicer and remitted by the Master Servicer to
the related Mortgage Loan Seller (or GMACCM, in the case of such a Defect,
Breach or event under the Supplemental Agreement) on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due on the related Deleted
Mortgage Loan for such month and thereafter the related Mortgage Loan Seller (or
GMACCM, in the case of such a Defect, Breach
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or event under the Supplemental Agreement) shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
In any month in which the related Mortgage Loan Seller (or GMACCM under a
Supplemental Agreement) substitutes one or more Qualifying Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine
the applicable Substitution Shortfall Amount. The Trustee shall direct the
related Mortgage Loan Seller (or GMACCM, as applicable) to deposit cash equal to
such amount into the Distribution Account concurrently with the delivery of the
Mortgage File(s) for the Qualifying Substitute Mortgage Loan(s), without any
reimbursement thereof. The Trustee shall also direct the related Mortgage Loan
Seller (or GMACCM, as applicable) to give written notice to the Trustee and the
Master Servicer of such deposit, accompanied by an Officers' Certificate as to
the calculation of the applicable Substitution Shortfall Amount. The Trustee
shall direct the related Mortgage Loan Seller (or GMACCM, as applicable) to
amend the Mortgage 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
(or GMACCM, as applicable), upon delivery to each of the Trustee, the Master
Servicer and the Special Servicer of a trust receipt executed by the related
Mortgage Loan Seller (or GMACCM, as applicable), all portions of the Mortgage
File and other documents pertaining to such Mortgage Loan possessed by it, and
each document that constitutes a part of the related Mortgage File that was
endorsed or assigned to the Trustee shall be endorsed or assigned, as the case
may be, to the related Mortgage Loan Seller (or GMACCM, as applicable) in the
same manner as provided in Section 2 of each Mortgage Loan Purchase Agreement.
Additionally, in connection with any repurchase of or substitution for a
Mortgage Loan pursuant to this Section 2.03, the Master Servicer shall release
or cause to be released to the related Mortgage Loan Seller (or GMACCM, as
applicable) any Reserve Funds or Escrow Payments with respect to the related
Mortgage Loan. If the affected Mortgage Loan is to be repurchased, the Trustee
shall designate the Certificate Account as the account to which funds in the
amount of the Purchase Price are to be wired.
(c) Section 6 of the related Mortgage Loan Purchase Agreement and Section 4
of each Supplemental Agreement provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Defect in a Mortgage File or any Breach of any representation or
warranty set forth in or required to be made pursuant to Section 4(a) of such
Mortgage Loan Purchase Agreement or Section 2(a) of such Supplemental Agreement
or any of the circumstances described in Section 6(b) of such Mortgage Loan
Purchase Agreement or in Section 4(b) of such Supplemental Agreement.
(d) The Trustee shall, for the benefit of the Certificateholders, enforce
the obligations of each Mortgage Loan Seller under Section 6 of the related
Mortgage Loan Purchase Agreement and the obligations of GMACCM under Section 4
of each Supplemental Agreement.
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Such enforcement, including, without limitation, the legal prosecution of
claims, shall be carried out in such form, to such extent and at such time as
the Trustee would require were it, in its individual capacity, the owner of the
affected Mortgage Loan(s). The Trustee shall be reimbursed for the reasonable
costs of such enforcement, together with interest thereon at the Reimbursement
Rate: first, from a specific recovery of costs, expenses or attorneys' fees
against the related Mortgage Loan Seller (or GMACCM, in the case of enforcement
under a Supplemental Agreement); second, pursuant to Section 3.05(a)(ix) out of
the related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of such enforcement action it
is determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(x) out of general collections on
the Mortgage Loans on deposit in the Certificate Account.
SECTION 2.04 Issuance of Class R-I Certificates; Creation of REMIC I
Regular Interests.
Concurrently with the assignment to the Trustee of the assets included in
REMIC I, and in exchange therefor, at the direction of the Depositor, the REMIC
I Regular Interests have been issued hereunder and the Trustee has executed, and
caused the Certificate Registrar to authenticate and deliver, to or upon the
order of the Depositor, the Class R-I Certificates in authorized denominations.
The interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II to receive distributions
from the proceeds of REMIC I in respect of the Class R-I Certificates and the
REMIC I Regular Interests, respectively, and all ownership interests of the
Class R-I Certificateholders and REMIC II in and to such distributions, shall be
as set forth in this Agreement.
SECTION 2.05 Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC I Regular Interests to the
Trustee for the benefit of the Class R-II Certificateholders and REMIC III as
holder of the REMIC II Regular Interests. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present and
future Class R-II Certificateholders and REMIC III as the holder of the REMIC II
Regular Interests.
SECTION 2.06 Issuance of Class R-II Certificates; Creation of REMIC II
Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, and caused the Certificate 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
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from the proceeds of REMIC II in respect of the Class R-II Certificates and the
REMIC II Regular Interests, respectively, and all ownership interests of the
Class R-II Certificateholders and REMIC III in and to such distributions, shall
be as set forth in this Agreement.
SECTION 2.07 Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Depositor in and to the REMIC II Regular Interests to the
Trustee for the benefit of the REMIC III Certificateholders. The Trustee
acknowledges the assignment to it of the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future REMIC III Certificateholders.
SECTION 2.08 Issuance of REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II Regular
Interests, and in exchange therefor, at the direction of the Depositor, the
Trustee has executed, and caused the Certificate Registrar to authenticate and
deliver, to or upon the order of the Depositor, the REMIC III Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the respective Classes of REMIC III Certificateholders to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of the respective Classes of REMIC
III Certificateholders in and to such distributions, shall be as set forth in
this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01 Servicing and Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (i) with the same care, skill
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (ii) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage 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
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of anticipated collections that will be distributable to Certificateholders to
be performed at the related Net Mortgage Rate); and (iii) without regard to (A)
any relationship that the Master Servicer or the Special Servicer, as the case
may be, or any Affiliate thereof may have with the related Mortgagor, (B) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or by any Affiliate thereof, (C) the Master Servicer's
obligation to make Advances, (D) the Special Servicer's obligation to make (or
to direct the Master Servicer to make) Servicing Advances, (E) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction and (F) the obligation of GMACCM, as a Mortgage Loan
Seller, to repurchase Mortgage Loans pursuant to Section 6(b) of the Mortgage
Loan Purchase Agreement or Section 4(b) of either Supplemental Agreement (the
conditions set forth in the immediately foregoing clauses (i), (ii) and (iii),
the "Servicing Standard"). Without limiting the generality of the foregoing,
each of the Master Servicer and the Special Servicer, in its own name, in
connection with its servicing and administrative duties hereunder is hereby
authorized and empowered by the Trustee to exercise efforts consistent with the
foregoing standard and to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
subject to Section 3.20, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File; and any and all instruments of satisfaction or cancellation, or of full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties. Each of the Master Servicer and the
Special Servicer is also authorized to approve a request by a Mortgagor under a
Mortgage Loan that it is obligated to service and administer pursuant to this
Agreement, for an easement, consent to alteration or demolition, and for other
similar matters, provided that the Master Servicer or the Special Servicer, as
the case may be, determines, exercising its good faith business judgment and in
accordance with the Servicing Standard, that such approval will not affect the
security for, or the timely and full collectability of, the related Mortgage
Loan. Subject to Section 3.10, the Trustee shall furnish, or cause to be
furnished, to the Master Servicer and the Special Servicer any powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer or the Special Servicer, as the case may be, to carry out its servicing
and administrative duties hereunder; provided, however, that the Trustee shall
not be held liable, and shall be indemnified by the Master Servicer or the
Special Servicer, as applicable, for any negligence with respect to, or misuse
of, any such power of attorney by the Master Servicer or the Special Servicer,
as the case may be.
(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
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no responsibility for the performance by the Special Servicer of its duties
under this Agreement, and the Special Servicer shall have no responsibility for
the performance of the Master Servicer under this Agreement.
(d) Subject to Section 3.01(a), each of the Master Servicer and Special
Servicer shall service and administer each Mortgage Loan that is a
Cross-Collateralized Mortgage Loan as a single Mortgage Loan as and when it
deems such treatment necessary and appropriate.
SECTION 3.02 Collection of Mortgage Loan Payments.
The Master Servicer (or the Special Servicer with respect to the Specially
Serviced Mortgage Loans) shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the terms
and conditions of the Mortgage Loans, follow such collection procedures as are
consistent with the Servicing Standard; provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the Master
Servicer or the Special Servicer of the collectability of the Mortgage Loans.
Consistent with the foregoing, the Master Servicer may in its discretion waive
any Penalty Charge in connection with any delinquent payment on a Mortgage Loan
(other than a Specially Serviced Mortgage Loan) and the Special Servicer may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Specially Serviced Mortgage Loan.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts and Reserve Accounts.
(a) Each of the Master Servicer (or the Special Servicer with respect to
the Specially Serviced Mortgage Loans) shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments shall be
deposited and retained. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only to: (i)
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) reimburse the Trustee, the Master Servicer and the Special
Servicer, in that order, as applicable, for any unreimbursed Servicing Advances
made thereby to cover any of the items described in the immediately preceding
clause (i); (iii) refund to the related Mortgagor any sums as may be determined
to be overages; (iv) pay interest, if required and as described below, to the
related Mortgagor on balances in the Servicing Account (or, if and to the extent
not payable to the related Mortgagor, to pay such interest to the Master
Servicer or Special Servicer, as applicable); (v) disburse Insurance Proceeds if
required to be applied to the repair or restoration of the related Mortgaged
Property; or (vi) clear and terminate the Servicing Account at the termination
of this Agreement in accordance with Section 9.01. As part of its servicing
duties, the Master Servicer and the Special Servicer shall pay or cause to be
paid to the Mortgagors interest on funds in Servicing Accounts maintained
thereby, to the extent required by law or the terms of the related Mortgage
Loan. The Servicing Accounts shall not be considered part of the segregated pool
of assets constituting REMIC I, REMIC II, REMIC III or the Grantor Trust.
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(b) Each of the Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to the
Specially Serviced Mortgage Loans) shall (i) maintain accurate records with
respect to each related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof, and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) for Mortgage Loans
which require the related Mortgagor to escrow for the payment of such items and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose Escrow Payments as allowed under the terms of
the related Mortgage Loan. To the extent that a Mortgage Loan does not require a
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, the Master Servicer
(or the Special Servicer with respect to the Specially Serviced Mortgaged Loans)
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to comply with the requirements of the related Mortgage for
payments in respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer (at the
direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) shall advance with respect to each related Mortgaged Property all such
funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items that are or may become a lien
thereon, (ii) ground rents (if applicable), and (iii) premiums on Insurance
Policies, in each instance if and to the extent Escrow Payments collected from
the related Mortgagor are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis, and provided that the
particular advance would not, if made, constitute a Nonrecoverable Servicing
Advance. All such Servicing Advances shall be reimbursable in the first instance
from related collections from the Mortgagors, and further as provided in Section
3.05. No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments, ground rents (if
applicable) and other similar items on or in respect of the Mortgaged Properties
shall, for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
(d) The Master Servicer (or the Special Servicer with respect to Specially
Serviced Mortgage Loans) shall, establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), into which all Reserve Funds, if any,
shall be deposited and retained. Withdrawals of amounts so deposited may be made
to pay for, or to reimburse the related Mortgagor in connection with, the
related repairs, environmental remediation, replacements and/or capital
improvements at the related Mortgaged Property if such repairs, environmental
remediation, replacements and/or capital improvements have been completed, and
such withdrawals are made, in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds. Subject to the terms of the related
Mortgage Note and Mortgage, all Reserve Accounts shall be Eligible Accounts. As
part of its servicing duties, the Master Servicer and the Special Servicer shall
pay or cause to be paid to the Mortgagors interest on funds in the Reserve
Accounts maintained thereby, to the extent required by law or the terms of the
related Mortgage
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Loan. The Reserve Accounts shall not be considered part of the segregated pool
of assets comprising REMIC I, REMIC II, REMIC III or the Grantor Trust.
SECTION 3.04 Certificate Account, Distribution Account and Interest
Reserve Account.
(a) The Master Servicer shall establish and maintain a Certificate Account
in which the Master Servicer shall deposit or cause to be deposited on a daily
basis, except as otherwise specifically provided herein, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans due
and payable on or before the Cut-off Date), and payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal, including Principal Prepayments,
on the Mortgage Loans;
(ii) all payments on account of interest (including, without limitation,
Default Interest and Excess Interest) on the Mortgage Loans, late payment
charges and Prepayment Premiums;
(iii) any amounts received from the Special Servicer which are required to
be transferred from the REO Account pursuant to Section 3.16(c) and amounts of
interest and investment income earned in respect of amounts relating to the
Trust Fund held in any Lock-Box Account or Cash Collateral Account, if any, and
only to the extent not required to be paid to the applicable Mortgagor under the
terms of the related Mortgage Loan documents or applicable law;
(iv) all Insurance Proceeds and Liquidation Proceeds received in respect of
any Mortgage Loan or REO Property (other than Liquidation Proceeds that are
received in connection with the Master Servicer's or the Depositor's purchase of
all the Mortgage Loans and any REO Properties in the Trust Fund and that are to
be deposited in the Distribution Account pursuant to Section 9.01);
(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, Reserve Funds, charges for
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beneficiary statements or demands, assumption fees, amounts collected for
mortgagor checks returned for insufficient funds, ancillary fees and any other
amounts that the Master Servicer and the Special Servicer are entitled to as
additional servicing compensation pursuant to Section 3.11 need not be deposited
by the Master Servicer in the Certificate Account. If the Master Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate Account,
any provision herein to the contrary notwithstanding. The Master Servicer shall
promptly deliver to the Special Servicer as additional servicing compensation in
accordance with Section 3.11(d), 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 (a)(v), (b)(iii), (b)(iv) or (b)(vi) of the definition thereof)
for the related Distribution Date then on deposit in the Certificate Account.
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Trustee for deposit in the Distribution Account:
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(i) any Delinquency Advances required to be made by the Master Servicer in
accordance with Section 4.03 (in each case, net of the portion thereof that
represents Master Servicing Fees and/or Special Servicing Fees, which is to be
deposited in the Certificate Account);
(ii) any Compensating Interest Payments required to be made by the Master
Servicer pursuant to Section 3.19;
(iii) any Liquidation Proceeds paid by the Master Servicer or the Depositor
in connection with the purchase of all of the Mortgage Loans and any REO
Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that portion
thereof required to be deposited in the Certificate Account pursuant to Section
9.01); and
(iv) any other amounts required to be so delivered for deposit in the
Distribution Account pursuant to any provision of this Agreement.
The Trustee shall, upon receipt, deposit in the Distribution Account any
and all amounts received by the Trustee that are required by the terms of this
Agreement to be deposited therein. If, as of 3:00 p.m., New York City time, on
any Master Servicer Remittance Date or on such other date as any amount referred
to in the foregoing clauses (i) through (iv) is required to be delivered
hereunder, the Master Servicer shall not have delivered to the Trustee for
deposit in the Distribution Account the relevant portion of the Available
Distribution Amount or any of the amounts referred to in the foregoing clauses
(i) through (iv), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy no. (215) 328-3478 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone no. (215)
328-1790 (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 by the Trustee in
Permitted Investments and the Trustee shall be required to deposit an amount
equal to the Net Investment Shortfall, if any, in such account, all as provided
in accordance with the provisions of Section 3.06. 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.
(c) The Trustee shall establish and maintain the Interest Reserve Account
in trust for the benefit of the Certificateholders. The Interest Reserve Account
shall be maintained as a segregated account, separate and apart from trust funds
for mortgage pass-through certificates of other series administered by the
Trustee and other accounts of the Trustee. Funds in the Interest Reserve Account
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06 and the Trustee shall be required to deposit an amount equal to the
Net Investment Shortfall, if any, in such account, all as provided in accordance
with the provisions of Section 3.06.
On each Master Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall
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calculate the Withheld Amount with respect to each Interest Reserve Loan. On
each such Master Servicer Remittance Date, the Trustee shall withdraw from the
Distribution Account and deposit in the Interest Reserve Account an amount equal
to the aggregate of the Withheld Amounts calculated in accordance with the
previous sentence. If the Trustee shall deposit in the Interest Reserve Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Interest Reserve Account, any provision herein to the
contrary notwithstanding. On or prior to the Master Servicer Remittance Date in
March of each calendar year, the Trustee shall transfer to the Distribution
Account the aggregate of all Withheld Amounts on deposit in the Interest Reserve
Account. On the Closing Date, the Depositor shall make an initial deposit in the
amount of $462,933 to the Interest Reserve Account, which deposit shall be
treated as the "Withheld Amounts" for purposes of the Distribution Date
occurring in March 1999.
SECTION 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account and the Interest Reserve Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Distribution Account the
amounts required to be remitted pursuant to the second paragraph of Section
3.04(b) or that may be applied to make Delinquency Advances pursuant to Section
4.03(a);
(ii) to pay itself unpaid Servicing Fees payable to itself earned thereby
in respect of each Mortgage Loan and REO Loan, the Master Servicer's rights to
payment pursuant to this clause (ii) being limited to amounts received or
advanced on or in respect of such Mortgage Loan or such REO Loan that are
allocable as a recovery or advance of interest thereon;
(iii) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Special Servicing Fees
in respect of each Specially Serviced Mortgage Loan and REO Loan;
(iv) to pay to the Special Servicer earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled pursuant to, and from the sources
contemplated by, Section 3.11(c);
(v) to reimburse the Trustee and itself, in that order, as applicable, for
unreimbursed Delinquency Advances made thereby, the Master Servicer's or the
Trustee's respective rights to be reimbursed pursuant to this clause (v) being
limited to amounts received that represent Late Collections of interest on and
principal of the particular Mortgage Loans and REO Loans with respect to which
such Delinquency Advances were made (in each case, net of related Workout Fees);
(vi) to reimburse the Trustee, itself and the Special Servicer, in that
order, as applicable, for unreimbursed Servicing Advances made thereby, the
Master Servicer's, the Special Servicer's or the Trustee's respective rights to
be reimbursed pursuant to this clause (vi) with respect to any Mortgage Loan or
REO Property being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance Proceeds and REO Revenues;
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(vii) to reimburse the Trustee, itself and the Special Servicer, in that
order, as applicable, out of general collections on the Mortgage Loans and REO
Properties, for Nonrecoverable Advances made thereby;
(viii) to pay the Trustee, itself or the Special Servicer, in that order as
the case may be, any related Advance Interest accrued and payable on any
unreimbursed Advance in accordance with Section 3.11(f) and 4.03(d), first out
of Penalty Charges received on the Mortgage Loan or REO Loan as to which such
Advance was made and then, at or following such time as it reimburses the
Trustee, itself and the Special Servicer, in that order, as applicable, for such
Advance pursuant to clause (v), (vi) or (vii) above or Section 3.03, out of
general collections on the Mortgage Loans and REO Properties;
(ix) to reimburse itself (if it is not the affected Mortgage Loan Seller)
or the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to a
repurchase obligation of a Mortgage Loan Seller under Section 6 of the related
Mortgage Loan Purchase Agreement (or Section 4 of either Supplemental
Agreement), including, without limitation, any expenses arising out of the
enforcement of the repurchase obligation, together with interest thereon at the
Reimbursement Rate, each such Person's right to reimbursement pursuant to this
clause (ix) with respect to any Mortgage Loan being limited to that portion of
the Purchase Price paid for such Mortgage Loan that represents such expense in
accordance with clause (c) of the definition of Purchase Price;
(x) in accordance with Section 2.03(d), to reimburse the Trustee, out of
general collections on the Mortgage Loans and REO Properties for any
unreimbursed expense reasonably incurred by the Trustee in connection with the
enforcement of a Mortgage Loan Seller's obligations under Section 6(a) of the
related Mortgage Loan Purchase Agreement (or Section 4 of either Supplemental
Agreement), together with interest thereon at the Reimbursement Rate, but only
to the extent that such expenses are not reimbursable pursuant to clause (ix)
above or otherwise;
(xi) to pay out of general collections on the Mortgage Loans and REO
Properties, for costs and expenses incurred by the Trust Fund pursuant to
Section 3.09(c) and to pay Liquidation Expenses out of related Liquidation
Proceeds pursuant to Section 3.09;
(xii) to pay itself, as additional servicing compensation in accordance
with Section 3.11(b), (A) interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Certificate Account, any Lock-Box
Account and Cash Collateral Account as provided in Section 3.06(b) (but only to
the extent of the Net Investment Earnings with respect to the Certificate
Account, any Lock-Box Account and Cash Collateral Account for any Collection
Period), (B) Prepayment Interest Excesses and Balloon Payment Interest Excess
received on the Mortgage Loans and (C) Penalty Charges received on Mortgage
Loans that are not Specially Serviced Mortgage Loans (but only to the extent not
otherwise allocable to cover Advance Interest in respect of the related Mortgage
Loan);
(xiii) to pay to the Special Servicer, as additional servicing
compensation, all Penalty Charges received on any Specially Serviced Mortgage
Loan (but only to the extent not
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otherwise allocable to pay Advance Interest in respect of the related Specially
Serviced Mortgage Loan);
(xiv) to pay itself, the Depositor, or any of their respective directors,
officers, employees and agents, as the case may be, out of general collections
on the Mortgage Loans and REO Properties, any amounts payable to any such Person
pursuant to Section 6.03;
(xv) to pay, out of general collections on the Mortgage Loans and REO
Properties, for (A) the cost of the Opinions of Counsel contemplated by Sections
3.09(b)(ii) and 3.16(a), (B) the cost of the advice of counsel contemplated by
Section 3.17(a), (C) the cost of any Opinion of Counsel contemplated by Section
11.01(a) in connection with an amendment to this Agreement 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);
(xvi) to pay itself, the Special Servicer, any Mortgage Loan Seller, GMACCM
or the Majority Certificateholder of the Controlling Class, as the case may be,
with respect to each Mortgage Loan, if any, previously purchased by such Person
pursuant to or as contemplated by this Agreement, all amounts received on such
Mortgage Loan subsequent to the date of purchase;
(xvii) to withdraw funds deposited into the Certificate Account in error;
and
(xviii) to clear and terminate the Certificate Account at the termination
of this Agreement pursuant to Section 9.01.
For each Mortgage Loan, the Master Servicer shall keep and maintain
separate accounting records, on a loan-by-loan basis (and for each REO Loan, on
a property-by-property basis) when appropriate, for the purpose of justifying
any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes:
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(i) to make distributions to Certificateholders on each Distribution Date
pursuant to Section 4.01 and to deposit the Withheld Amounts in the Interest
Reserve Account pursuant to Section 3.04(c);
(ii) to pay itself interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Distribution Account as provided
in Section 3.06(b) (but only to the extent of the Net Investment Earnings with
respect to the Distribution Account for any Collection Period);
(iii) to pay itself unpaid Trustee Fees pursuant to Section 8.05(a);
(iv) to pay itself or any of its directors, officers, employees and agents,
as the case may be, any amounts payable or reimbursable to any such Person
pursuant to Section 8.05(b);
(v) to pay for (A) the cost of the Opinion of Counsel contemplated by
Section 11.01(a) or (c) in connection with any amendment to this Agreement
requested by the Trustee, which amendment is in furtherance of the rights and
interests of Certificateholders, (B) the cost of the Opinion of Counsel
contemplated by Section 11.02(a) in connection with any recordation of this
Agreement and (C) to the extent payable out of the Trust Fund, the cost of the
Opinion of Counsel contemplated by Section 10.01(f);
(vi) to (A) pay any and all federal, state and local taxes imposed on REMIC
I, REMIC II or REMIC III or on the assets or transactions of any such REMIC,
together with all incidental costs and expenses, and any and all reasonable
expenses relating to tax audits, if and to the extent that either (1) none of
the Trustee, the Master Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(g) or (2) any such Person that may be so liable has
failed to make the required payment, and (B) reimburse the Trustee for
reasonable expenses incurred by and reimbursable to it by the Trust Fund
pursuant to Section 10.01(c);
(vii) to withdraw funds deposited into the Distribution Account in error;
and
(viii) to clear and terminate the Distribution Account at the termination
of this Agreement pursuant to Section 9.01.
(c) The Trustee may, from time to time, make withdrawals from the Interest
Reserve Account to pay itself interest and investment income earned in respect
of amounts relating to the Trust Fund held in the Interest Reserve Account (but
only to the extent of Net Investment Earnings with respect to the Interest
Reserve Account for any Collection Period).
SECTION 3.06 Investment of Funds in the Certificate Account, the
Distribution Account, the Interest Reserve Account and the
REO Account.
(a) (i) The Master Servicer may direct any depository institution
maintaining the Certificate Account, any Lock-Box Account or any Cash Collateral
Account to invest, (ii) the Special Servicer may direct any depository
institution maintaining the REO Account to invest, or if it is a depository
institution, may itself invest, and (iii) the Trustee may direct the depository
institution maintaining the Distribution Account or the Interest Reserve Account
to invest, or if it
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is such depository institution, may itself invest, the funds held therein in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a Person other
than the depository institution maintaining such account is the obligor thereon,
and (ii) no later than the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Certificate Account, any Lock-Box Account and any
Cash Collateral Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account) on behalf of the Trustee, and the
Trustee (with respect to Permitted Investments of amounts in the Distribution
Account and the Interest Reserve Account), shall (and Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. In the event amounts on deposit in an Investment Account
are at any time invested in a Permitted Investment payable on demand, the Master
Servicer (in the case of the Certificate Account, any Lock-Box Account or any
Cash Collateral Account), the Special Servicer (in the case of the REO Account)
and the Trustee (in the case of the Distribution Account and the Interest
Reserve Account) shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds in
the Certificate Account, and to the extent the Master Servicer directs the
investment of funds in any Lock-Box Account or any Cash Collateral Account,
interest and investment income realized on funds deposited in each such
Investment Account, to the extent of the Net Investment Earnings, if any, with
respect to such account for each Collection Period, shall be for
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the sole and exclusive benefit of the Master Servicer and shall be subject to
its withdrawal, or withdrawal at its direction, in accordance with Section
3.05(a). Interest and investment income realized on funds deposited in the
Distribution Account and the Interest Reserve Account, to the extent of Net
Investment Earnings, if any, with respect to such account for each Collection
Period, shall be for the sole and exclusive benefit of the Trustee and shall be
subject to its withdrawal in accordance with Section 3.05(b) or (c), as the case
may be. Whether or not the Special Servicer directs the investment of funds in
the REO Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in the Certificate Account, and to the
extent the Master Servicer has discretion to direct the investment of funds in
any Lock-Box Account or any Cash Collateral Account for its sole and exclusive
benefit, the Master Servicer shall deposit therein, no later than the end of the
Collection Period during which such loss was incurred, without right of
reimbursement, the amount of the Net Investment Loss, if any, with respect to
such account for such Collection Period. If any loss shall be incurred in
respect of any Permitted Investment on deposit in the Distribution Account or
the Interest Reserve Account, the Trustee shall immediately deposit therein,
without right of reimbursement, the amount of the Net Investment Loss, if any,
with respect to such account. If any loss shall be incurred in respect of any
Permitted Investment on deposit in the REO Account, the Special Servicer shall
promptly deposit therein from its own funds, without right of reimbursement, no
later than the end of the Collection Period during which such loss was incurred,
the amount of the Net Investment Loss, if any, for such Collection Period.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) Each of the Master Servicer (in the case of Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each
Mortgagor to maintain in respect of the related Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if any
Mortgage permits the holder thereof to dictate to the Mortgagor the insurance
coverage to be maintained on such Mortgaged Property, the Master Servicer or the
Special Servicer, as appropriate, shall impose such insurance requirements as
are consistent with the Servicing Standard. If a Mortgagor fails to maintain
such insurance, the Master Servicer (at the direction of the Special Servicer in
the case of a Specially Serviced Loan) shall (to the extent available at
commercially reasonable terms) obtain such insurance (which may be through a
master or single interest policy) and the cost (including any deductible
relating to such insurance) of such insurance (or in the case of a master or
single interest policy, the incremental cost (including any deductible relating
to such insurance) of such insurance relating to the specific Mortgaged
Property), shall be a Servicing Advance and shall be recoverable by the Master
Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is
located in an area identified in the Flood Hazard Boundary Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards or it becomes located
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in such area by virtue of remapping conducted by such agency (and flood
insurance has been made available), the Master Servicer (or in the case of a
Specially Serviced Loan, the Special Servicer) shall, if and to the extent that
the Mortgage Loan requires the Mortgagor or permits the mortgagee to require the
Mortgagor to do so, use reasonable efforts to cause the related Mortgagor to
maintain a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in the maximum amount of
insurance coverage available under the National Flood Insurance Act or 1968, the
Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act
of 1994, as amended, unless otherwise specified by the related Mortgage Loan. If
(i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such
insurance (or becomes obligated by virtue of the related Mortgaged Property
becoming located in such area by virtue of such remapping) or (ii) the terms of
the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such
insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the
Special Servicer), shall promptly notify the Mortgagor of its obligation to
obtain such insurance. If the Mortgagor fails to obtain such flood insurance
within 120 days of such notification, the Master Servicer (or in the case of a
Specially Serviced Loan, the Special Servicer) shall obtain such insurance, the
cost of which shall be a Servicing Advance and shall be recoverable by the
Master Servicer or Special Servicer pursuant to Section 3.05(a); provided that
the Master Servicer or Special Servicer shall not be required to incur any such
cost if such Advance would constitute a Nonrecoverable Servicing Advance.
Subject to Section 3.17(a), the Special Servicer shall also use reasonable
efforts to cause to be maintained for each REO Property (to the extent available
at commercially reasonable terms) no less insurance coverage than was previously
required of the Mortgagor under the related Mortgage or as is consistent with
the Servicing Standard. All such insurance policies shall contain a "standard"
mortgagee clause, with loss payable to the Master Servicer (in the case of
Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on
behalf of the Trustee, and shall be issued by an insurer authorized under
applicable law to issue such insurance. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with applicable law, the terms of the related Mortgage Loan documents
and the Servicing Standard) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the outstanding principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit,
but shall be recoverable by the Master Servicer as a Servicing Advance pursuant
to Section 3.05(a).
(b) (i) If the Master Servicer or the Special Servicer obtains and
maintains a blanket policy insuring against hazard losses on all of the
Mortgaged Properties and/or REO Properties for which it is responsible to cause
the maintenance of insurance hereunder, then, to the extent such policy provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on such Mortgaged Properties and/or REO Properties. Such policy may
contain a deductible clause (not
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in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on a Mortgaged Property or an REO Property a hazard insurance policy complying
with the requirements of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such policy, promptly deposit into the
Certificate Account (or into the Servicing Account if insurance proceeds are to
be applied to the repair or restoration of the applicable Mortgaged Property or
disbursed to the related Mortgagor) from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. The
Master Servicer and the Special Servicer each agrees to prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy maintained by it in a timely fashion in accordance with the terms
of such policy.
(ii) If the Master Servicer or the Special Servicer, as applicable, causes
any Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, which provides protection equivalent to the individual
policies otherwise required, the Master Servicer or Special Servicer shall
conclusively be deemed to have satisfied its respective obligations to cause
hazard insurance to be maintained on such Mortgaged Properties and/or REO
Properties. Such policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, shall in the event that
(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 and naming
the Trustee as an additional insured. The amount of coverage shall be at least
equal to the coverage that would be required by FNMA or FHLMC, whichever is
greater, with respect to the Master Servicer or Special Servicer, as the case
may be, if the Master Servicer or Special Servicer, as the case may be, were
servicing and administering the Mortgage Loans and/or REO Properties for which
it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer
or the Special Servicer under a policy or bond obtained by an Affiliate of such
Person and providing the coverage required by this Section 3.07(c) shall satisfy
the requirements of this Section 3.07(c).
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(d) All insurance coverage required to be maintained by the Master Servicer
or Special Servicer, as applicable, under this Section 3.07 shall be obtained
from Qualified Insurers having a claims paying ability rating (or the
obligations of which are guaranteed or backed by a company having such claims
paying ability rating or insurance financial strength rating, as applicable) not
less than (x) two increments (but not less than BBB) below the rating of the
highest rated Certificate from Standard & Poor's and (y) if rated by FITCH IBCA,
"A" by FITCH IBCA (or, if not rated by FITCH IBCA, rated A-IX or better by A.M.
Best); provided, however, that the requirements of clauses (x) and (y) shall not
be applicable with respect to Standard & Poor's or FITCH IBCA, as applicable, if
the related Rating Agency shall have confirmed in writing that an insurance
company with a lower claims paying ability rating shall not result, in and of
itself, in a downgrade, qualification 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)(iv), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard. In the event that
the 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
and entering into such assumption and modification agreement will not be a
significant modification of the Mortgage Loan for purposes of the REMIC
Provisions). The 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. Subject to
Section 3.20(a), if the Master
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Servicer or Special Servicer intends or is required to permit the transfer of
any Mortgaged Property and enter into an assumption agreement or a substitution
of liability agreement, as the case may be, in accordance with the foregoing,
the Master Servicer or the Special Servicer, as the case may be, prior to
entering into such agreement, shall submit to (A) FITCH IBCA, in the case of any
Mortgage Loan that has, or any Mortgage Loan that is part of a Related Borrower
Group that has, one of the then-ten highest outstanding principal balances in
the Mortgage Pool; and (B) Standard & Poor's, in the case of any Mortgage Loan
that has an outstanding principal balance in excess of the lesser of (1)
$20,000,000 or (2) 1.5% of the then outstanding principal balance of the
Mortgage Pool, a copy of such documentation and any information with respect to
such action as the Master Servicer or Special Servicer, as applicable, deems
appropriate or as such Rating Agency may reasonably request, and shall request
that such Rating Agency deliver to the Master Servicer or Special Servicer, as
applicable, Rating Agency Confirmation with respect to the execution of such
agreement within five (5) Business Days of receipt of a copy of such
documentation and any information such Rating Agency so reasonably requests;
provided, however, if the Master Servicer or Special Servicer shall not have
received such written confirmation from FITCH IBCA within five (5) Business Days
of such Rating Agency's receipt of a copy of such documentation and such
information, such written confirmation shall be deemed to have been delivered to
the Master Servicer or Special Servicer by FITCH IBCA.
(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 the Special Servicer, as
the case may be, prior to waiving any such right, shall submit to (A) FITCH IBCA
(but only in the case of any Mortgage Loan that has, or any Mortgage Loan that
is part of a Related Borrower Group that has, one of the then-ten highest
outstanding principal balances in the Mortgage Pool) and (B) Standard & Poor's
(in all cases), a copy of the documentation under which any such lien would
arise together with such other information with respect to such proposed waiver
as the Master Servicer or Special Servicer, as applicable, deems appropriate or
as such Rating Agency may reasonably request, and shall request that such Rating
Agency deliver to the Master Servicer or Special Servicer, as applicable,
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Rating Agency Confirmation with respect to such proposed waiver within five (5)
Business Days of receipt of a copy of such documentation and any information
such Rating Agency so reasonably requests; provided, however, if the Master
Servicer or Special Servicer shall not have received such written confirmation
from FITCH IBCA within five (5) Business Days of such Rating Agency's receipt of
a copy of such documentation and such information, such written confirmation
shall be deemed to have been delivered to the Master Servicer or Special
Servicer by FITCH IBCA.
(c) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through a Defeasance Option or with respect to the application of
amounts held in any earnout or other reserve accounts, the Master Servicer
shall, to the extent consistent with and permitted by the applicable Mortgage
Loan documents, permit (or, if the terms of such Mortgage Loan permit the lender
to require defeasance, the Master Servicer shall require) the exercise of such
Defeasance Option on any Due Date occurring more than two years after the
Startup Day (the "Release Date") subject to the following conditions:
(i) No event of default exists under the related Mortgage Note;
(ii) The Mortgagor pays on such Release Date (A) all interest accrued and
unpaid on the Principal Balance of the Mortgage Note to and including the
Release Date; (B) all other sums, excluding scheduled interest or principal
payments due under the Mortgage Note and (C) any costs and expenses incurred in
connection with such release;
(iii) The Mortgagor has delivered Defeasance Collateral providing payments
on or prior to all successive scheduled payment dates from the Release Date to
the related Maturity Date, and in an amount equal to or greater than the
scheduled payments due on such dates under the Mortgage Loan;
(iv) The Mortgagor shall have delivered a security agreement granting the
Trust Fund a first priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel from the
related Mortgagor (which shall be an expense of the related Mortgagor) to the
effect that the Trust Fund has a first priority security interest in the
Defeasance Collateral and that the assignment thereof is valid and enforceable;
(vi) The Master Servicer shall have obtained at the related Mortgagor's
expense a certificate from an Independent certified public accountant certifying
that the Defeasance Collateral complies with the requirements of the related
Mortgage Note;
(vii) 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 from the related Mortgagor to the effect that such release
will not cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a
REMIC at any time that any Certificates are outstanding or cause a tax to be
imposed on the Trust Fund under the REMIC Provisions;
(viii) The Borrower shall have provided evidence to the Master Servicer
demonstrating that the lien of the related Mortgage is being released to
facilitate the disposition
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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; and
(ix) If required by the terms of such Mortgage Loan, the Master Servicer
shall have received Rating Agency Confirmation from each of FITCH IBCA and
Standard & Poor's with respect to the exercise of such Defeasance Option.
(d) Nothing in this Section 3.08 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(e) Except as otherwise permitted by Section 3.20, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan in connection with the taking of, or the failure to take,
any action pursuant to this Section 3.08.
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
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Mortgaged Property, the Special Servicer shall make such selection in a manner
consistent with the Servicing Standard. Nothing contained in this Section 3.09
shall be construed so as to require the Special Servicer, on behalf of the Trust
Fund, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Special Servicer in its sole judgment taking into account the
factors described in Section 3.18(e) and the results of any Appraisal obtained
pursuant to this Agreement, all such bids to be made in a manner consistent with
the Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, the Master Servicer or the
Special Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property (the cost of which Appraisal shall be
covered by, and reimbursable as, an Additional Trust Fund Expense).
(b) The Special Servicer shall not acquire any personal property pursuant
to this Section 3.09 (with the exception of cash or cash equivalents pledged as
collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the meaning
of Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel (the
cost of which may be withdrawn from the Certificate Account pursuant to Section
3.05(a)) to the effect that the holding of such personal property by the Trust
Fund will not (subject to Section 10.01(f)) cause the imposition of a tax on the
Trust Fund under the REMIC Provisions or cause any of REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, initiate foreclosure
proceedings, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, have a receiver of rents appointed with respect to any Mortgaged
Property, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously received an Environmental
Assessment in respect of such Mortgaged Property prepared within the twelve
months preceding such determination by a Person who regularly conducts
Environmental Assessments and the Special Servicer, based 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
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(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials for
which investigations, testing, monitoring, containment, clean-up or remediation
could be required under any applicable environmental laws and regulations or, if
such circumstances or conditions are present for which any such action could be
required, that acquiring such Mortgaged Property and taking such actions with
respect to such Mortgaged Property is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than not acquiring such
Mortgaged Property and not taking such actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence, may be withdrawn from the Certificate
Account by the Master Servicer at the direction of the Special Servicer as an
expense of the Trust Fund pursuant to Section 3.05(a); and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the expense
of the Trust Fund, perform such additional environmental testing as are
consistent with the Servicing Standard to determine whether the conditions
described in clauses (i) and (ii) of the preceding sentence have been satisfied.
(d) If the environmental testing contemplated by subsection (c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a Defaulted Mortgage Loan, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund (other than proceeding to acquire title to the Mortgaged Property) and is
hereby authorized at such time as it deems appropriate to release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports monthly to the
Master Servicer, (who shall forward such reports to the Trustee, who shall
forward such reports to the Certificateholders) regarding any actions taken by
the Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan as to which the environmental testing contemplated in subsection
(c) above has revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied, in each case
until the earliest to occur of satisfaction of both such conditions, removal of
the related Mortgage Loan from the Trust Fund and release of the lien of the
related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall report to the Internal Revenue Service and
the related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned or
foreclosed, information returns with respect to the receipt of mortgage
interests received in a trade or business and the information returns relating
to cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050J, 6050H and 6050P, respectively, of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050J, 6050H and 6050P of the Code. The Special
Servicer shall deliver a copy of any such report upon request to the Trustee.
(g) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of the maintenance of an action to
obtain a deficiency
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judgment if the state in which the Mortgaged Property is located and the terms
of the Mortgage Loan permit such an action.
(h) The Special Servicer shall maintain accurate records of each Final
Recovery Determination in respect of a Defaulted Mortgage Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate delivered to the Trustee no later than the 10th
Business Day following such Final Recovery Determination.
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or the Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or the Special Servicer, as the case may be, will immediately notify the Trustee
and request delivery of the related Mortgage File. Any such notice and request
shall be in the form of a Request for Release signed by a Servicing Officer and
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited. Within seven Business Days (or within such shorter period as release
can reasonably be accomplished if the Master Servicer or the Special Servicer
notifies the Trustee of an exigency) of receipt of such notice and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or the Special Servicer, whichever
requested it. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) From time to time as is appropriate for servicing or foreclosure of any
Mortgage Loan, the Master Servicer or the Special Servicer may deliver to the
Trustee a Request for Release signed by a Servicing Officer thereof. Upon
receipt of the foregoing, the Trustee shall deliver or cause the related
Custodian to deliver, the Mortgage File or any document therein to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as delivery
can reasonably be accomplished if the Special Servicer notifies the Trustee of
an exigency) of receipt thereof, the Trustee shall execute and deliver to the
Special Servicer any court pleadings, requests for trustee's sale or other
documents necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce 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
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pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11 Servicing Compensation; Nonrecoverable Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan and
REO Loan. As to each Mortgage Loan and REO Loan, the Servicing Fee shall accrue
from time to time at the Servicing Fee Rate and shall be computed on the same
basis and the same principal amount respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to any Mortgage Loan or REO Loan shall
cease to accrue if a Liquidation Event occurs in respect thereof. The Servicing
Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest
on each Mortgage Loan, REO Revenues allocable as interest on each REO Loan and
the interest portion of Delinquency Advances on each Mortgage Loan and REO Loan.
The Master Servicer shall be entitled to recover unpaid Servicing Fees in
respect of any Mortgage Loan or REO Loan out of that portion of related
Insurance Proceeds or Liquidation Proceeds allocable as recoveries of interest,
to the extent permitted by Section 3.05(a). The right to receive the Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement.
(b) Additional servicing compensation in the form of assumption fees,
modification fees, 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 not allocable to pay
Advance Interest collected on the Mortgage Loans; (ii) interest or other income
earned on deposits in the Investment Accounts (other than the REO Account), in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to each such Investment Account for each
Collection Period), and (iii) to the extent not required to be paid to any
Mortgagor under applicable law or under the related Mortgage, any interest or
other income earned on deposits in the Servicing Accounts and Reserve Accounts
maintained thereby. The Master Servicer shall be required to pay out of its own
funds all overhead and general and administrative expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of Sub-Servicers
retained by it and the premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such expenses are not
payable directly out of the Certificate Account, and the Master Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
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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 same basis and the
same principal amount respecting which any related interest payment due on such
Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to each Specially Serviced
Mortgage Loan and each REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof. As to each Specially Serviced
Mortgage Loan and each REO Loan, earned but unpaid Special Servicing Fees shall
be payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest and principal received on such 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 by the Master Servicer or the Depositor pursuant to
Section 9.01). As to each such Specially Serviced Mortgage Loan or REO Property,
the Liquidation Fee shall be payable from, and shall be calculated by
application of the Liquidation Fee Rate to, such full or discounted payoff
and/or such Liquidation Proceeds. No Liquidation Fee will be payable with
respect to any Specially Serviced Mortgage Loan solely by virtue of such
Mortgage Loan becoming a Corrected Mortgage Loan. Notwithstanding anything
herein to the contrary, no Liquidation Fee will be payable from, or based upon
the receipt of, Liquidation Proceeds collected as a result of any purchase of a
Specially Serviced Mortgage Loan or REO Property described in the parenthetical
to the first sentence of this paragraph; provided, however, that if any such
Liquidation Proceeds are received with respect to any Corrected Mortgaged Loan,
and the Special Servicer is properly entitled to a Workout Fee therefrom, such
Workout Fee will be payable based on and from the portion of such Liquidation
Proceeds that constitute principal and/or interest.
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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 (to the extent not allocable to pay Advance
Interest) collected on the Specially Serviced Mortgage Loans and REO Loans. The
Special Servicer shall be required to pay out of its own funds all overhead and
general and administrative expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any Sub-Servicers retained by it and the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of the Certificate Account or the REO Account, and the Special Servicer
shall not be entitled to reimbursement except as expressly provided in this
Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall, to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure by the
Master Servicer or the Special Servicer to make such Advance (subject to Section
3.11(g) below), make such Advance.
(f) The Master Servicer, the Special Servicer and the Trustee shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each Servicing Advance made thereby for so long
as such Servicing Advance is outstanding, payable, first, out of Penalty Charges
received on the Mortgage Loan or REO Loan as to which such Servicing Advance was
made and, then, once such Servicing Advance has been reimbursed pursuant to
Section 3.05, out of general collections on the Mortgage Loans and REO
Properties.
(g) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer or the Trustee shall be required to make
any Servicing Advance that it determines in its reasonable, good faith judgment
would constitute a Nonrecoverable
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Servicing Advance; provided, however, that the Special Servicer may make an
Emergency Advance notwithstanding that, at the time such Advance is made, the
Special Servicer may not have adequate information available in order to make a
determination whether or not such advance would, if made, be a Nonrecoverable
Servicing Advance. In addition, Nonrecoverable Servicing Advances (including any
Emergency Advances made pursuant to the proviso of the preceding sentence which
are ultimately determined to be Nonrecoverable Servicing Advances) shall be
reimbursable pursuant to Section 3.05 out of general collections on the Mortgage
Loans and REO Properties on deposit in the Certificate Account. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee, that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be evidenced by an Officer's Certificate delivered promptly to
the Trustee (or, if applicable, retained thereby) and the Depositor, setting
forth the basis for such determination, together with (if such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy of
an Appraisal of the related Mortgaged Property or REO Property, as the case may
be, 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 or the Trustee, as the case may be, may, subject to its reasonable and
good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust Fund. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed) a physical
inspection of each Mortgaged Property (other than Mortgaged Properties
constituting collateral for Specially Serviced Mortgaged Loans) at such times
and in such manner as are consistent with the Servicing Standard, but in any
event at least once every two years (or, if the related Mortgage Loan has a
current balance of greater than $2,000,000, at least once every year except, in
the case of a Credit Lease Loan, at least once every three years). 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. In the event the published rating for any Tenant or Guarantor is
downgraded by any of Standard & Poor's or FITCH IBCA by one or more rating
increments (e.g. AA to A) and no inspection has been performed due to a ratings
downgrade in the preceding twelve months for the related Mortgaged Property,
then in each such instance, the Master Servicer or
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Special Servicer, as applicable, shall cause all Mortgaged Properties leased to
such Tenant to be inspected as soon as reasonably practical and, thereafter, in
accordance with the first sentence of this clause (a).
(b) The Special Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property constituting collateral for a
Specially Serviced Mortgage Loan at such times and in such manner as are
consistent with the Servicing Standard. If any Mortgage Loan becomes a Specially
Serviced Mortgage Loan, then as soon as practicable (and in any event within 90
days thereafter) the Special Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property constituting collateral for such
Mortgage Loan. The Special Servicer shall prepare (or cause to be prepared) a
written report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property evident from such inspection that the Special Servicer deems material,
(ii) any sale, transfer or abandonment of the Mortgaged Property evident from
such inspection, (iii) any adverse change in the condition or value of the
Mortgaged Property evident from such inspection that the Special Servicer deems
material, or (iv) any waste committed on the Mortgaged Property evident from
such inspection. The Special Servicer, upon request, shall deliver to the
Trustee and the Master Servicer a copy of each such written report.
(c) The Master Servicer (or, in the case of Specially Serviced Mortgage
Loans, the Special Servicer) shall make reasonable efforts to collect promptly
from each Mortgagor (other than a Mortgagor on a Credit Lease Loan) quarterly
and annual operating statements and rent rolls of the related Mortgaged
Property. In addition, the Special Servicer shall make reasonable efforts to
obtain quarterly and annual operating statements and rent rolls with respect to
each REO Property. The Master Servicer and Special Servicer, upon request, shall
each deliver copies of the collected items to the other such party and the
Trustee in each case within 10 days of its receipt of such request.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to the
Trustee, with a copy to the Depositor, on or before April 30th of each year,
beginning in 2000, an Officer's Certificate stating, as to the signer thereof,
that (i) a review of the activities of the Master Servicer or the Special
Servicer, as the case may be, during the preceding calendar year and of its
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, the Master
Servicer or the Special Servicer, as the case may be, has fulfilled in all
material respects its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding qualification, or challenging the status,
of the Trust Fund as a REMIC or of the Grantor Trust as a "grantor trust" under
the Grantor Trust Provisions from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof. A copy of such Officer's Certificate may be obtained by
Certificateholders upon written request to the Trustee pursuant to Section 8.12
hereof.
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SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30th of each year, beginning in 2000, 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.
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 or its nominee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
attempt to sell any REO Property prior to the close of the third taxable year of
the Trust Fund following the taxable year in which the Trust Fund acquires
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ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) is granted an extension of time (an "REO
Extension") by the Internal Revenue Service to sell such REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee and the
Special Servicer, to the effect that the holding by the Trust Fund of such REO
Property subsequent to the close of such period will not (subject to Section
10.01(f)) result in the imposition of taxes on "prohibited transactions" of
REMIC I, REMIC II or REMIC III as defined in Section 860F of the Code or cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC (for federal (or
any applicable state or local) income tax purposes) at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such longer liquidation period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(b) The Special Servicer shall cause all funds collected and received in
connection with any REO Property to be held separate and apart from its own
funds and general assets. If any REO Acquisition shall occur, the Special
Servicer shall establish and maintain (or cause to be established and
maintained) one or more accounts (collectively, the "REO Account"), to be held
on behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property. The
REO Account shall be an Eligible Account and may consist of one account for some
or all of the REO Properties. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, within two Business Days of receipt, all REO
Revenues, Liquidation Proceeds (net of all Liquidation Expenses paid therefrom)
and Insurance Proceeds received in respect of an REO Property. The Special
Servicer is authorized to pay out of related Liquidation Proceeds any
Liquidation Expenses incurred in respect of an REO Property and outstanding at
the time such proceeds are received. Funds in the REO Account may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from the REO Account to pay itself, as
additional servicing compensation in accordance with Section 3.11(d), interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the REO Account for any Collection Period). The Special
Servicer shall give notice to the Trustee and the Master Servicer of the
location of any REO Account when first established and of the new location of
such REO Account prior to any change thereof.
(c) The Special Servicer shall cause all funds necessary for the proper
operation, management, maintenance, disposition and liquidation of any REO
Property to be withdrawn from the REO Account, but only to the extent of amounts
on deposit in the REO Account relating to such REO Property. Within one Business
Day following the end of each Collection Period, the Special Servicer shall
withdraw from the REO Account and deposit into the Certificate Account or
deliver to the Master Servicer (which shall deposit such amounts into the
Certificate Account) the aggregate of all amounts received in respect of each
REO Property during such Collection Period, net of any withdrawals made out of
such amounts pursuant to
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Section 3.16 (b) or this Section 3.16(c); provided that the Special Servicer may
retain in the REO Account such portion of proceeds and collections as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management, maintenance and disposition of the related REO Property (including
without limitation the creation of a reasonable reserve for repairs,
replacements and necessary capital improvements and other related expenses),
such reserve not to exceed an amount sufficient to cover such items to be
incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17 Management of REO Property; Independent Contractors.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
Defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review, in its good faith and reasonable judgment,
that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within the
meaning of the REMIC Provisions or would be subject to the tax imposed on
"prohibited transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may be Directly
Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property could
result in income from such property that would be subject to an REO Tax, but
that a lease of such property to another party to operate such property, or the
performance of some services by an Independent Contractor with respect to such
property, or another method of operating such property would not result in
income subject to an REO Tax, then the Special Servicer may (provided, that in
the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and so
lease or operate such REO Property; or
(iii) Directly Operating such property as REO Property could result in
income subject to an REO Tax and, in the good faith and reasonable judgment of
the Special Servicer, that no commercially feasible means exists to operate such
property as REO Property without the Trust Fund incurring or possibly incurring
an REO Tax on income from such property, the Special Servicer shall deliver to
the Trustee, in writing, a proposed plan (the "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
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be required to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the Trustee, the
Special Servicer shall either (A) implement the Proposed Plan (after acquiring
the respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an REO Tax
on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer as to which means would (to the
extent commercially feasible) maximize the net after-tax REO Revenues received
by the Trust Fund with respect to such property without materially and adversely
affecting the Special Servicer's ability to sell such REO Property in accordance
with this Agreement and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. Both the Special Servicer and the
Trustee may consult with counsel knowledgeable in such matters at the expense of
the Trust Fund in connection with determinations required under this Section
3.17(a). Neither the Special Servicer nor the Trustee shall be liable to the
Certificateholders, the Trust Fund, the other parties hereto or each other for
errors in judgment made in good faith in the reasonable exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a) or, to the extent it relates to federal income tax consequences for the
Trust Fund, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended
to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the
terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as permitted by Section 3.17(a), result in the receipt by the Trust Fund
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (as determined by the Special Servicer in its
good faith and reasonable judgment) and, consistent therewith, shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to each REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO Property
that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain such REO Property.
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To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the prior sentence with
respect to such REO Property, the Special Servicer shall advance such amount as
is necessary for such purposes (which advances shall be Servicing Advances)
unless (as evidenced by an Officer's Certificate delivered to the Trustee) such
advances would, if made, constitute Nonrecoverable Servicing Advances; provided,
however, that the Special Servicer shall make any such Servicing Advance if it
is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings and such advance will be deemed to constitute a
recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be inconsistent
herewith and shall reflect an agreement reached at arm's length;
(ii) the fees of such Independent Contractor (which shall be an expense of
the Trust Fund) shall be reasonable and customary in light of the nature and
locality of the REO Property;
(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
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writing, the Master Servicer and the Trustee, and the Trustee shall so notify,
in writing, within 10 days after receipt of its notice, the Holders of the
Controlling Class. The Majority Certificateholder of the Controlling Class may
at its (or their) option purchase from the Trust Fund, at a price equal to the
Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price for any
Defaulted Mortgage Loan purchased hereunder shall be deposited into the
Certificate Account, and the Trustee, upon receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Majority Certificateholder of the
Controlling Class (or any designee thereof) the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Majority
Certificateholder of the Controlling Class (or any designee thereof) ownership
of such Defaulted Mortgage Loan. In connection with any such purchase, the
Special Servicer shall deliver the related Credit File to such
Certificateholder(s).
(c) If the Majority Certificateholder of the Controlling Class has not
purchased any Defaulted Mortgage Loan within 15 days of its having received
notice in respect thereof pursuant to the immediately preceding subsection (b),
either the Special Servicer or, subject to the Special Servicer's prior rights
in such regard, the Master Servicer may at its option, 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.
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
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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.
(f) Subject to subsections (a) through (e) above, the Special Servicer
shall act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
offerors, and may retain, fees that approximate the Special Servicer's actual
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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 or the Trustee shall have any liability to any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only (unless, as evidenced by an Opinion of Counsel, a sale for other
consideration will not cause an Adverse REMIC Event).
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
the Special Servicer shall not be obligated to accept the highest cash offer if
the Special Servicer determines, in its reasonable and good faith judgment, that
rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in its
reasonable and good faith judgment, that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations or the
terms offered by the prospective buyer making the lower offer are more
favorable).
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) In connection with each Adjustable Rate Mortgage Loan (and, if and to
the extent applicable, any successor REO Loan), the Master Servicer shall
calculate adjustments in the Mortgage Rate and the Monthly Payment and shall
notify the Mortgagor of such adjustments, all in accordance with the Mortgage
Note and applicable law. In the event the Index for any Adjustable Rate Mortgage
Loan (or successor REO Loan) is not published or is otherwise unavailable, the
Master Servicer shall select a comparable alternative index with respect to such
Mortgage Loan (or successor REO Loan) over which it has no direct control, which
is readily verifiable and which is acceptable under the terms of the related
Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall each
deliver to the other and to the Trustee (for inclusion in the Mortgage File)
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property.
(c) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated,
subject to the second following paragraph, to reimburse the Special Servicer for
any Servicing Advances made by but not previously reimbursed to the Special
Servicer, and to pay the Special Servicer interest thereon at the Reimbursement
Rate from the date made to, but not including, the date of reimbursement. Such
reimbursement and any accompanying payment of Advance Interest shall
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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. If the Special Servicer makes any Servicing
Advances in accordance with the terms of this Agreement, the Special Servicer
shall notify the Master Servicer in writing within one Business Day of any such
Servicing Advance.
Notwithstanding the foregoing provisions of this Section 3.19(c), the
Master Servicer shall not be required to make at the Special Servicer's
direction, or to reimburse the Special Servicer for, any Servicing Advance if
the Master Servicer determines in its reasonable, good faith judgment that the
Servicing Advance which the Special Servicer is directing the Master Servicer to
make or to reimburse to the Special Servicer hereunder either (y) although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance, or (z) the making of
such advance was or would be in violation of the Servicing Standard or the terms
and conditions of this Agreement. The Master Servicer shall notify the Special
Servicer in writing of such determination. Such notice shall not obligate the
Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan becomes a
Modified Mortgage Loan, (ii) the 90th day following the occurrence of any
uncured delinquency in Monthly Payments with respect to any Mortgage Loan, (iii)
the date on which a receiver is appointed and continues in such capacity in
respect of the Mortgaged Property securing any Mortgage Loan and (iv) the date
on which the Mortgaged Property securing any Mortgage Loan becomes an REO
Property (each such Mortgage Loan and any related REO Loan, a "Required
Appraisal Loan"), the Special Servicer, shall request and, within 30 days of the
occurrence of such event (or such longer period as the Special Servicer is (as
certified thereby to the Trustee in writing) diligently and in good faith
proceeding to obtain such) obtain an Appraisal of the related
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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 sum of (A) the lesser of (i)
the aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Loans (other than Late
Due Date Mortgage Loans) during the most recently ended Collection Period, and
(ii) the aggregate Master Servicing Fees received by the Master Servicer during
such Collection Period and (B) the aggregate of all Extraordinary Prepayment
Interest Shortfalls, if any, incurred in connection with Principal Prepayments
received in respect of Late Due Date Mortgage Loans during the most recently
ended Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all
Monthly Payments and any other sums due, in accordance with the terms of the
related ARD Loan.
(h) Subject to Section 3.20(a)(iv), with respect to all ARD Loans, the
Master Servicer and the Special Servicer shall not take any enforcement action
with respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than request for
collection, until the maturity date of the related Mortgage Loan. The foregoing
shall not limit the Servicer and Special Servicer's obligation to establish or
direct the related Mortgagor to establish a Lock-Box Account pursuant to Section
3.24. The Master Servicer shall, within 90 days of the Startup Day provide a
legally effective waiver to any such Mortgagor such that the Revised Rate for
such Mortgage Loan shall not exceed the related initial Mortgage Rate plus
2.00%.
(i) The Master Servicer shall be entitled to waive the application of any
provision in any ARD Loan that requires that the property manager of the related
Mortgaged Property be discharged if such Mortgage Loan is not paid in full on
its Anticipated Repayment Date.
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SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may agree to any
modification, waiver or amendment of any term of, forgive interest on and
principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder, without the consent of the Trustee or any
Certificateholder, subject, however, to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 3.02 and 3.08, the Master Servicer
(in such capacity) shall not agree to any modification, waiver or amendment of
any term of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would (A) affect the amount or timing of
any related payment of principal, interest or other amount payable thereunder,
(B) affect the obligation of the related Mortgagor to pay any Prepayment Premium
or permit a Principal Prepayment during any period when the terms of the
Mortgage Loan prohibit the making of Principal Prepayments or, (C) in the Master
Servicer's good faith and reasonable judgment, materially impair the security
for such Mortgage Loan or reduce the likelihood of timely payment of amounts due
thereon; the Special Servicer (in such capacity) may, however, agree to any
modification, waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, a Specially Serviced
Mortgage Loan that would have any such effect, but only if, in the Special
Servicer's reasonable and good faith judgment, a material default on such
Mortgage Loan has occurred or a default in respect of payment on such Mortgage
Loan is reasonably foreseeable, and such modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis, than would liquidation;
(ii) any such action taken by the Special Servicer shall be accompanied by
an Officer's Certificate to such effect and to which is attached the present
value calculation which establishes the basis for such determination, a copy of
which shall be delivered to the Trustee for delivery to the Rating Agencies;
(iii) neither the Master Servicer nor the Special Servicer may extend the
Stated Maturity Date of any Mortgage Loan beyond the date that is two years
prior to the Rated Final Distribution Date and, in the case of any Mortgage Loan
that is secured solely by a Ground Lease, the Master Servicer or the Special
Servicer, as the case may be, shall give due consideration to the remaining term
of such Ground Lease prior to extending the Stated Maturity Date of the Mortgage
Loan;
(iv) neither the Master Servicer nor the Special Servicer shall make or
permit any modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) or clause (h) of Section 3.19 with
respect to, any Mortgage Loan that would (A) cause REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC under the Code or (subject to Section
10.01(f)) result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day of any such REMIC under the REMIC
Provisions or (B) cause any Mortgage Loan to cease to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (neither the Master
Servicer nor the Special Servicer shall be liable for judgments as regards
decisions made under this subsection which were made
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in good faith and, unless it would constitute bad faith or negligence to do so,
each of the Master Servicer and the Special Servicer may rely on opinions of
counsel in making such decisions);
(v) neither the Master Servicer nor the Special Servicer shall permit any
Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan,
which collateral constitutes real property, unless the Master Servicer or the
Special Servicer, as the case may be, shall have first determined, in its
reasonable and good faith judgment, based upon an Environmental Assessment
performed within the twelve months prior to such determination (and such
additional environmental testing as the Master Servicer or Special Servicer, as
the case may be, deems necessary and appropriate) prepared by an Independent
Person who regularly conducts Environmental Assessments (and such additional
environmental testing), at the expense of the Mortgagor, that such additional or
substitute collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present with
respect to such new collateral relating to the use, management or disposal of
any Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any then applicable
environmental laws and/or regulations; 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 Sections 3.08 and 3.09(d) and except in the case of a release where
(A) the use of the collateral to be released will not, in the Master Servicer's
or Special Servicer's, as the case may be, good faith and reasonable judgment,
materially and adversely affect the Net Operating Income being generated by or
the use of the related Mortgaged Property, (B) there is a corresponding
principal paydown of such Mortgage Loan in an amount at least equal to, or a
delivery of substitute collateral with an appraised value at least equal to, the
appraised value of the collateral to be released, (C) the remaining Mortgaged
Property and any substitute collateral is, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment, adequate
security for the remaining Mortgage Loan and (D) such release and/or
substitution would not, in and of itself, result in the downgrade, qualification
(including by placement on "negative credit watch") 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 that is solely within the control of the related Mortgagor, and (y)
notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor
the Special Servicer shall be required to oppose the confirmation of a plan in
any bankruptcy or similar proceeding involving a Mortgagor if in their
reasonable and good faith judgment such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar. Neither the Master
Servicer nor the Special Servicer may extend the Maturity Date on any Mortgage
Loan except pursuant to this Section 3.20(a) or as otherwise required under the
related loan documents.
(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
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reasonably likely to produce a greater recovery to Certificateholders on a
present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Master Servicer or Special Servicer and the Master
Servicer or Special Servicer was not negligent in ascertaining the pertinent
facts.
(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 (other
than a waiver of Penalty Charges) or amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to the Trustee or the related Custodian
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment, promptly (and in
any event within 10 Business Days) following the execution thereof.
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall promptly give notice thereof, and deliver
the related Servicing File, to the Special Servicer and shall use reasonable
efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event. The
Special Servicer may, as to any delinquent Mortgage Loan, prior to the
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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.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements for the servicing and administration of all or a part
of the Mortgage Loans for which it is responsible hereunder, provided that, in
each case, the Sub-Servicing Agreement: (i) is not inconsistent with this
Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer (whichever retained it) under Section 3.07
hereof; (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer be the Master Servicer or
Special Servicer, as applicable, hereunder (including, without limitation, by
reason of an Event of Default or their termination hereunder), the Trustee, its
designee or any successor Master Servicer or Special Servicer may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement; (iii) in the case of a Sub-Servicing
Agreement entered into by the Master Servicer, expressly or effectively provides
that (if the
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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; (iv)
requires that the Master Servicer consent to any modification to the terms of a
Mortgage Loan pursuant to Section 3.20; 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. Termination penalties or fees incurred under
any such Sub-Servicing Agreement shall not be an obligation of, or expense
chargeable to, the Certificateholders or the Trust Fund. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Servicing Advances and
Delinquency Advances shall be deemed to have been advanced by the Master
Servicer or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer or the Special Servicer, as the case may be, and, for so long as they
are outstanding, such Advances shall accrue interest in accordance with Section
3.11(f) or Section 4.03(d), as applicable, such interest to be allocable between
the Master Servicer or the Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when the Sub-Servicer receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master Servicer and
the Special Servicer, for the benefit of the Trustee and the Certificateholders,
shall (at no expense to the Trustee, the Certificateholders or the Trust Fund)
monitor the performance and enforce the obligations of each Sub-Servicer
retained by it under the related Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time by the Master Servicer and the Special Servicer
in accordance with the Servicing Standard.
(d) In the event the Trustee, its designee or any successor Master Servicer
or Special Servicer assumes the rights and obligations of the Master Servicer or
the Special Servicer under any Sub-Servicing Agreement, the Master Servicer or
the Special Servicer, as the case may be, at its expense shall, upon request of
the Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
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(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 confirmation of the Rating
Agencies. The Trustee shall, promptly after receiving any such notice, so notify
the Rating Agencies. The designated Person shall become the Special Servicer as
of the date the Trustee shall have received: (i) written confirmation from the
Rating Agencies stating that if the designated Person were to serve as Special
Servicer hereunder, none of the then-current ratings of the outstanding Classes
of the Certificates would be qualified (including by placement on "negative
credit watch"), downgraded or withdrawn; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer or the Holders that made the
designation) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 3.23 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, and (ii) it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such resignation. Such resigning Special
Servicer shall cooperate with the Trustee 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 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.
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(b) For any Mortgage Loan that provides that a Lock-Box Account or Cash
Collateral Account will be established upon the occurrence of certain events
specified in such Mortgage Loan, the Master Servicer (or, with respect to any
Specially Serviced Loan, the Special Servicer) shall use reasonable efforts to
establish or cause to be established such Lock-Box Account upon the occurrence
of such events unless the Master Servicer (or the Special Servicer, as
applicable) determines, in accordance with the Servicing Standards, that such
Lock-Box Account should not be established. Notwithstanding the foregoing, the
Master Servicer (or the Special Servicer, as applicable) shall use reasonable
efforts to establish or cause to be established a Lock-Box Account for each ARD
Loan no later than its Anticipated Repayment Date.
SECTION 3.25 Representations and Warranties of the Master Servicer and
the Special Servicer.
GMACCM, in its capacity as both Master Servicer and Special Servicer
hereunder hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the Certificateholders, and to the Depositor, as of the Closing
Date, that:
(i) GMACCM is a corporation, duly organized, validly existing and in good
standing under the laws of the State of California, and GMACCM is in compliance
with the laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by GMACCM, and the
performance and compliance with the terms of this Agreement by GMACCM, will not
violate GMACCM's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other instrument to which
it is a party or which is applicable to it or any of its assets.
(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.
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(vi) No litigation is pending or, to the best of GMACCM's knowledge,
threatened against GMACCM the outcome of which, in GMACCM's good faith and
reasonable judgment, could reasonably be expected to prohibit GMACCM from
entering into this Agreement or materially and adversely affect the ability of
GMACCM to perform its obligations under this Agreement.
(vii) GMACCM has errors and omissions insurance coverage which is in full
force and effect and complies with the requirements of Section 3.07 hereof.
(viii) No consent, approval, authorization or order, registration or filing
with or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by GMACCM with this Agreement, or the consummation by GMACCM of any
transaction contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as have been
obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on the performance by GMACCM under this Agreement.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
AND RELATED MATTERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to apply the
Available Distribution Amount for such date for the following purposes and in
the following order of priority:
(i) to pay interest to REMIC II in respect of the various REMIC I Regular
Interests, up to an amount equal to, and pro rata in accordance with, all
Uncertificated Distributable Interest for each such REMIC I Regular Interest for
such Distribution Date and, to the extent not previously deemed paid, for all
prior Distribution Dates;
(ii) to pay principal to REMIC II in respect of the various REMIC I Regular
Interests, up to an amount equal to, and pro rata in accordance with, in the
case of each such REMIC I Regular Interest for such Distribution Date, the
excess, if any, of the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to such Distribution Date, over the
Stated Principal Balance of the related Mortgage Loan, REO Loan or, if
applicable, Replacement Mortgage Loan(s), as the case may be, that will be
outstanding immediately following such Distribution Date; and
(iii) to reimburse REMIC II for any Realized Losses and Additional Trust
Fund Expenses previously deemed allocated to the various REMIC I Regular
Interests, up to an amount equal to, and pro rata in accordance with, the Loss
Reimbursement Amount for each such REMIC I Regular Interest immediately prior to
such Distribution Date.
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On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-I Certificates, in accordance with Section 4.01(c), that portion, if
any, of the Available Distribution Amount for such date that has not otherwise
been deemed paid to REMIC II in respect of the REMIC I Regular Interests
pursuant to the foregoing provisions of this Section 4.01(a) (such portion, the
"Class R-I Distribution Amount" for such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply amounts
relating to each Prepayment Premium then on deposit in the Distribution Account
and received during or prior to the related Collection Period, to pay additional
interest to REMIC II in respect of the REMIC I Regular Interest that relates to
the Mortgage Loan or REO Loan, as the case may be, as to which such Prepayment
Premium was received.
All amounts (other than additional interest in the form of amounts relating
to Prepayment Premiums) deemed paid to REMIC II in respect of the REMIC I
Regular Interests pursuant to this Section 4.01(a) on any Distribution Date is
hereinafter referred to as the "REMIC II Distribution Amount" for such date.
(b) On each Distribution Date, the Trustee shall be deemed to apply the
REMIC II Distribution Amount for such date for the following purposes and in the
following order of priority:
(i) to pay interest to REMIC III in respect of all REMIC II Regular
Interests up to an amount equal to all Uncertificated Distributable Interest in
respect of such REMIC II Regular Interests for such Distribution Date and, to
the extent not previously deemed paid, for all prior Distribution Dates with
such payments allocated among the REMIC II Regular Interests such that remaining
amounts, if any, of unpaid interest on each such REMIC II Regular Interest will
equate to the remaining unpaid accrued interest on the corresponding Class of
Principal Balance Certificates or Class X Component outstanding after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below;
(ii) to pay principal to REMIC III in respect of all REMIC II Regular
Interests apportioned as payment of Uncertificated Principal Balance among REMIC
II Regular Interests such that the remaining Uncertificated Principal Balance of
each such class will equal the then outstanding Class Principal Balance of the
corresponding Principal Balance Certificate after all subsequent adjustments
made on such Distribution Date under Section 4.01(c) below (other than payments
thereunder in reimbursement of any Realized Losses and Additional Trust Fund
Expenses); and
(iii) to reimburse REMIC III for any Realized Losses and Additional Trust
Fund Expenses previously deemed allocated to REMIC II Regular Interests,
apportioned among the REMIC II Regular Interests consistent with the
reimbursement payments made on the corresponding Classes of Principal Balance
Certificates on such Distribution Date under Section 4.01(c) below.
On each Distribution Date, the Trustee shall 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
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respect of the REMIC II Regular Interests pursuant to the foregoing provisions
of this Section 4.01(b) (such portion, the "Class R-II Distribution Amount" for
such Distribution Date).
On each Distribution Date, the Trustee shall be deemed to apply all amounts
relating to Prepayment Premiums then on deposit in the Distribution Account and
received during or prior to the related Collection Period, to pay additional
interest to REMIC III in respect of REMIC II Regular Interests allocable among
the REMIC II Regular Interests in an amount with respect to each REMIC II
Regular Interest equal to the amount allocable to the corresponding Class of
Principal Balance Certificates and Class X Component outstanding after all
subsequent adjustments made on such Distribution Date under Section 4.01(c)
below.
(c) On each Distribution Date, following the deemed payments to REMIC III
in respect of the REMIC II Regular Interests on such date pursuant to Section
4.01(b), the Trustee shall withdraw from the Distribution Account the Available
Distribution Amount for such Distribution Date and shall apply such amount for
the following purposes and in the following order of priority:
(i) to pay interest to the Holders of the respective Classes of Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each such Class of Certificates
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to pay principal first to the Holders of the Class A-1 Certificates
and second to the Holders of the Class A-2 Certificates, in each case, up to an
amount equal to the lesser of (1) the then outstanding Class Principal Balance
of such Class of Certificates and (2) the remaining portion, if any, of such
Principal Distribution Amount;
(iii) to reimburse the Holders of the respective Classes of Class A
Certificates, up to an amount equal to and pro rata as among such Classes in
accordance with, the respective amounts of Realized Losses and Additional Trust
Fund Expenses, if any, previously deemed allocated to such Classes of
Certificates and for which no reimbursement has previously been paid; and
(iv) to make payments on the Subordinated Certificates pursuant to the
following paragraph;
provided that, on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinated Certificates has been reduced to zero,
and in any event on the Final Distribution Date, the payments of principal to be
made pursuant to clause (ii) above, will be so made to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to, and pro
rata as among such Classes in accordance with, the respective then outstanding
Class Principal Balances of such Classes of Certificates. References to
"remaining Principal Distribution Amount" shall be to the Principal Distribution
Amount net of any distributions of principal made in respect thereof to the
Holders of each Class of Class A Certificates that, pursuant to clause (ii)
above, have a prior right to payment with respect thereto.
On each Distribution Date, following the foregoing series of payments on
the Senior Certificates, the Trustee shall apply the remaining portion, if any,
of the Available
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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;
(viii) if the Class Principal Balances of the Class A, Class B and Class C
Certificates have been reduced to zero, to pay principal to the Holders of the
Class D Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(ix) to reimburse the Holders of the Class D Certificates, up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(x) to pay interest to the Holders of the Class E Certificates, up to an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
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(xi) if the Class Principal Balances of the Class A, Class B, Class C and
Class D Certificates have been reduced to zero, to pay principal to the Holders
of the Class E Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B) the
remaining Principal Distribution Amount for such Distribution Date;
(xii) to reimburse the Holders of the Class E Certificates, up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii) to pay interest to the Holders of the Class F Certificates, up to an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A, Class B, Class C,
Class D and Class E Certificates have been reduced to zero, to pay principal to
the Holders of the Class F Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Principal Distribution Amount for such Distribution Date;
(xv) to reimburse the Holders of the Class F Certificates, up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xvi) to pay interest to the Holders of the Class G Certificates, up to an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E and Class F Certificates have been reduced to zero, to pay
principal to the Holders of the Class G Certificates, up to an amount equal to
the lesser of (A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to reimburse the Holders of the Class G Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xix) to pay interest to the Holders of the Class H Certificates, up to an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E, Class F and Class G Certificates have been reduced to zero, to
pay principal to the Holders of the Class H Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance of such Class
of Certificates and (B) the remaining Principal Distribution Amount for such
Distribution Date;
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(xxi) to reimburse the Holders of the Class H Certificates, up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii) to pay interest to the Holders of the Class J Certificates, up to an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates have been reduced to
zero, to pay principal to the Holders of the Class J Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class Principal Balance
of such Class of Certificates and (B) the remaining Principal Distribution
Amount for such Distribution Date;
(xxiv) to reimburse the Holders of the Class J Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxv) to pay interest to the Holders of the Class K-1 Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of the
Class K-1 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-1 Certificates,
up to an amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class K-1 Certificates and (B) the remaining Principal
Distribution Amount for such Distribution Dates;
(xxvii) to reimburse the Holders of the Class K-1 Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class K-1 Certificates and for which no
reimbursement has previously been received;
(xxviii) to pay interest to the Holders of the Class K-2 Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of such
Class K-2 Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K-1 Certificates
have been reduced to zero, to pay principal to the Holders of the Class K-2
Certificates, up to an amount equal to the lesser of (A) the then outstanding
Class Principal Balance of such Class K-2 Certificates and (B) the remaining
Principal Distribution Amount for such Distribution Dates;
(xxx) to reimburse the Holders of the Class K-2 Certificates, up to an
amount equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Class K-2 Certificates and for which no
reimbursement has previously been received;
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(xxxi) 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;
(xxxii) 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
(xxxiii) to pay to the Holders of the Class R-III Certificates the balance,
if any, of the Available Distribution Amount for such Distribution Date;
provided that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi) and (xxix) above with respect to any Class of Principal Balance
Certificates, will be so made to the Holders thereof, up to an amount equal to
the entire then outstanding Class Principal Balance of such Class of
Certificates. References to "remaining Principal Distribution Amount" in any of
clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix)
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 and Class E
Certificates up to an amount equal to, in the case of each such Class, the
product of (a) such Prepayment Premiums, (b) the applicable Discount Rate
Fraction and (c) the Principal Allocation Fraction of such Class; and
(ii) then, to the Holders of the Class X Certificates.
All of the foregoing distributions to be made from the Distribution Account
on any Distribution Date with respect to the REMIC III Certificates shall be
deemed made from the payments deemed made to REMIC II in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section 4.01(b).
On each Distribution Date, the Trustee shall withdraw from the Distribution
Account, as Grantor Trust Assets, any amounts that represent Excess Interest
actually collected on the ARD Loans and any related REO Loans during the related
Collection Period and shall distribute with respect to their interests in the
Grantor Trust, such amounts to the holders of the Class K-1 Certificates,
without regard to whether any such Class is entitled to distributions of
interest or principal on such Distribution Date (whether by reason of its Class
Principal Balance having been reduced to zero, by reason of it not yet being
entitled to distributions of principal, or for any other reason).
(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
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respective Percentage Interests. Except as otherwise provided in the last
paragraph of Section 4.01(c) or as provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates) or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Any
distribution that is to be made with respect to a Certificate in reimbursement
of a Realized Loss or Additional Trust Fund Expense previously allocated
thereto, which reimbursement is to occur after the date on which such
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Certificateholder that surrendered
such Certificate as such address last appeared in the Certificate Registrar or
to any other address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer or the Special
Servicer shall have any responsibility therefor except as otherwise provided by
this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Certificates shall not constitute distributions of principal and shall not
result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the
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Trustee shall, as soon as practicable in the month in which such Distribution
Date occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to such
Class of Certificates will be made on such Distribution Date but only upon
presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after the
applicable Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates, shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute all unclaimed
funds and other assets which remain subject hereto in accordance with applicable
laws.
(h) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. All amounts withheld shall be deemed to have been paid to
such Certificateholders.
SECTION 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) Subject to Section 8.02(v), based on information received from the
Master Servicer, on each Distribution Date, the Trustee shall provide or make
available as provided herein to all of the Holders of each Class of Certificates
(and, in the case of a Class of
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Book-Entry Certificates, to each Person that provides the Trustee with an
Investor Certification), to the parties hereto and to the Rating Agencies
written reports, including reports in substantially the form attached hereto as
Exhibit G (the "Distribution Date Statement"), setting forth, among other
things, the following information:
(i) the amount of distributions, if any, made on such Distribution Date to
the holders of each Class of Principal Balance Certificates and applied to
reduce the respective Class Principal Balances thereof;
(ii) the amount of distributions, if any, made on such Distribution Date to
the Holders of each Class of REMIC III Regular Certificates allocable to (A)
Distributable Certificate Interest, (B) Prepayment Premiums and (C) Excess
Interest;
(iii) the amount of any distributions made on such Distribution Date to the
Holders of each Class of Residual Certificates;
(iv) the aggregate amount of outstanding Delinquency Advances as of the end
of the prior calendar month;
(v) the aggregate amount of Servicing Fees retained by or paid to the
Master Servicer and the Special Servicer in respect of the related Collection
Period;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
immediately before and after such Distribution Date and the percentage of the
Cut-off Date Principal Balance of the Mortgage Pool which remains outstanding
immediately after such Distribution Date;
(vii) the number, aggregate principal balance, weighted average remaining
term to maturity and weighted average Mortgage Rate of the outstanding Mortgage
Loans in the Mortgage Pool at the close of business on the related Determination
Date;
(viii) as of the Determination Date, the number and aggregate unpaid
principal balance of Mortgage Loans in the Mortgage Pool (A) delinquent one
month, (B) delinquent two months, (C) delinquent three or more months, (D) that
are Specially Serviced Mortgage Loans but are not delinquent or (E) as to which
foreclosure proceedings have been commenced;
(ix) with respect to any Mortgage Loan as to which the related Mortgaged
Property became an REO Property during the related Collection Period, the Stated
Principal Balance and unpaid principal balance of such Mortgage Loan as of the
date such Mortgaged Property became an REO Property; (x) as to any Mortgage Loan
repurchased or otherwise liquidated or disposed of during the related Collection
Period, the loan number thereof and the amount of any Liquidation Proceeds
and/or other amounts, if any, received thereon during the related Collection
Period and the portion thereof included in the Available Distribution Amount for
such Distribution Date;
(xi) with respect to any REO Property included in the Trust Fund as of the
close of business on the last day of the related Collection Period, the loan
number of the related
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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;
(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;
(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 net amount of any Balloon Payment Interest Excesses and Balloon
Payment Interest Shortfalls for the related Collection Period;
(xxiii) the information with respect to the credit ratings of any Tenant or
Guarantor provided by the Master Servicer to the Trustee pursuant to Section
4.02(b) hereof on or prior to the third Business Day after the related
Determination Date; and
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(xxiv) 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, including the information and reports described
in clauses (1) through (6) of clause (b) below and the CSSA Periodic Loan File
delivered for each Distribution Date. In addition, the Trustee shall make
available to each Certificateholder, to each Person that provides the Trustee
with an Investor Certification, to each party hereto, 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 Date Statement available
through its fax-on-demand service to Certificateholders and Certificate Owners
calling (301) 815-6610 and (y) certain information regarding the Mortgage Loans
available in electronic format through its dial up bulletin board service, to
Certificateholders and Certificate Owners dialing telephone number (301)
815-6620. Additionally, upon approval of the Depositor, certain information
regarding the Mortgage Loans will be made accessible at the website maintained
by the Trustee at "www.ctslink.com/cmbs". Such information shall be accessible
only with the use of a password provided by the Trustee to each Person that
provides the Trustee with an Investor Certification; provided, however, that the
Rating Agencies and the other parties to this Agreement shall not be required to
provide such certification; and provided, further, that the Depositor may
instruct the Trustee at any time not to require the use of a password or the
receipt of a certification. The Trustee makes no representations or warranties
as to the accuracy or completeness of such information and assumes no
responsibility therefor. In addition, the Trustee may disclaim responsibility
for any information distributed by the Trustee for which it is not the original
source. In connection with providing access to the Trustee's internet website or
electronic bulletin board, the Trustee may require registration and acceptance
of a disclaimer. The Trustee shall not be liable for the dissemination of
information in accordance with this Agreement. At any time, the Trustee may
provide such information through means other than (and in lieu of) its
fax-on-demand service, dial up bulletin board service or website provided that
(i) GMACCM shall have consented to such alternative means and (ii)
Certificateholders shall have received notice of such alternative means. The
provisions in this Section shall not limit the Master Servicer's ability to make
accessible certain information regarding the Mortgage Loans at a website
maintained by the Master Servicer.
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Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Certificate a statement containing the information as to the
applicable Class set forth in clauses (i), (ii) and (iii) of the description of
Distribution Date Statements above aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder,
together with such other information as the Trustee determines to be necessary
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
Upon filing with the Internal Revenue Service, the Trustee shall furnish to
the Holders of the Residual Certificates the Form 1066 and shall furnish their
respective Schedules Q thereto at the times required by the Code or the Internal
Revenue Service, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee to the
Certificateholders in this Section 4.02 (and any other terms of this Agreement
requiring or calling for delivery or reporting of information by the Trustee to
Certificateholders and Certificate Owners) shall not limit the Trustee in
furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund
as may be provided to it by the Depositor, the Master Servicer or the Special
Servicer or gathered by it in any investigation or other manner from time to
time, provided that (A) while there exists any Event of Default, any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (B) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its sole
discretion (together with any warnings as to the confidential nature and/or the
uses of such information as it may, in its sole discretion, determine
appropriate), (C) the Trustee may notify Certificateholders and Certificate
Owners of the availability of any such 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
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distribute any Additional Information to any Person in any instance, and the
Trustee shall neither have any liability for furnishing nor for refraining from
furnishing Additional Information in any instance. The Trustee shall be entitled
(but not required) to request and receive direction from the Depositor as to the
manner of delivery of any such Additional Information, if and to the extent the
Trustee deems necessary or advisable, and to require that any consent, direction
or request given to it pursuant to this Section be made in writing.
Upon the authorization of the Depositor, the Trustee shall make available
to Bloomberg Financial Markets, L.P. ("Bloomberg") all the electronic reports
delivered or made available pursuant to this Section 4.02(a) to the
Certificateholders and Certificate Owners using a format and media mutually
acceptable to the Trustee and Bloomberg.
(b) No later than the Business Day prior to each Distribution Date, subject
to the last paragraph of this subsection (b), the Master Servicer shall deliver
or cause to be delivered to the Trustee (and, if the Master Servicer is not the
Special Servicer, the Trustee shall deliver to the Special Servicer) in
electronic form mutually acceptable to the Trustee and the Master Servicer the
following reports or information: (1) a Delinquent Loan Status Report, (2) an
REO Status Report, (3) a Historical Loan Modification Report, (4) a Historical
Loss Report, (5) the Servicer Watch List and (6) a single report (the
"Collection Report") setting forth, among other things, the information
specified in clauses (i) through (vi) below (the amounts and allocations of
payments, collections, fees and expenses with respect to Specially Serviced
Mortgage Loans and REO Properties to be based upon the report to be delivered by
the Special Servicer to the Master Servicer on the second Business Day after the
related Determination Date, in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the Certificate
Account to the Distribution Account in respect of such Distribution Date that is
allocable to principal on or in respect of the Mortgage Loans and any REO Loans,
separately identifying the aggregate amount of any Principal Prepayments
included therein, and (if different) the Principal Distribution Amount for the
immediately succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the Certificate
Account to the Distribution Account in respect of such Distribution Date that is
allocable to (A) interest on or in respect of the Mortgage Loans and any REO
Loans, (B) Prepayment Premiums and (C) Excess Interest;
(iii) the aggregate amount of any Delinquency Advances made pursuant to
Section 4.03 of this Agreement as of the end of the prior calendar month that
were included in amounts deposited in the Distribution Account;
(iv) the information required to be included in the Distribution Date
Statement for the next succeeding Distribution Date and described in clauses (v)
- - (xii) and (xviii) - (xxiii) of the description of the Distribution Date
Statement in Section 4.02(a);
(v) the loan number and the unpaid principal balance as of the close of
business on such Determination Date of each Specially Serviced Mortgage Loan and
each other Defaulted Mortgage Loan; and
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(vi) such other information on a Mortgage Loan-by-Mortgage Loan or REO
Property-by-REO Property basis as the Trustee or the Depositor shall reasonably
request in writing (including, without limitation, information with respect to
any modifications of any Mortgage Loan, any Mortgage Loans in default or
foreclosure, the operation and disposition of REO Property and the assumption of
any Mortgage Loan).
On the date on which the report described above is delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee 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.
No later than the Business Day prior to each Distribution Date, the Master
Servicer will deliver to the Trustee (by electronic means) a "Comparative
Financial Status Report" containing substantially the content set forth in
Exhibit I setting forth, among other things, the occupancy, revenue, net
operating income and debt service coverage ratio for each Mortgage Loan (other
than the Credit Lease Loans) or related Mortgaged Property as of the
Determination Date immediately preceding the preparation of such report for each
of the following three periods (but only to the extent the related borrower is
required by the Mortgage to deliver and does deliver, or otherwise agrees to
provide and does provide, such information): (a) the most current available
year-to-date; (b) each of the previous two full fiscal years stated separately
(to the extent such information is in the Master Servicer's possession); and (c)
the "base year" (representing the original analysis of information used as of
the Cut-Off Date).
No later than 12:00 noon, New York City time, on the second Business Day
prior to each Distribution Date, the Master Servicer will deliver to the Trustee
a CSSA Periodic Loan File setting forth certain information with respect to the
Mortgage Loans and Mortgaged Properties.
In addition, the Master Servicer is also required to perform with respect
to each Mortgaged Property and REO Property (except any Mortgaged Property
securing a Credit Lease Loan):
(i) Within 30 days after receipt of a quarterly operating statement,
if any, commencing with the calendar quarter ended March 31, 1999, an
"Operating Statement Analysis" containing revenue, expense, and net
operating income information substantially in accordance with Exhibit I
presenting the computation made in accordance with the methodology set
forth in Exhibit F (but only to the extent the related borrower is required
by the Mortgage to deliver and does deliver, or otherwise agrees to provide
and does provide, such information) for such Mortgaged Property or REO
Property as of the end of such calendar quarter. The Master Servicer will
deliver to the Trustee by electronic means the Operating Statement Analysis
upon request; and
(ii) Within 30 days after receipt by the Master Servicer of an annual
operating statement, an NOI adjustment analysis containing substantially
the content set forth in
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Exhibit I (the "NOI Adjustment Worksheet") (but only to the extent the
related borrower is required by the Mortgage to deliver and does deliver,
or otherwise agrees to provide and does provide, such information),
presenting the computation made in accordance with the methodology
described in Exhibit F to "normalize" the full year net operating income
and debt service coverage numbers used by the Master Servicer in preparing
the Comparative Financial Status Report above. The Master Servicer will
deliver to the Trustee by electronic means the "NOI Adjustment Worksheet"
upon request.
Upon request, the Trustee shall deliver or shall cause to be delivered to each
Certificateholder, to each party hereto, to any Underwriter, to the Rating
Agencies, and to each Person that provides the Trustee with an Investor
Certification a copy of the Operating Statement Analysis and NOI Adjustment
Worksheet most recently performed by the Master Servicer with respect to any
Mortgage Loan and delivered to the Trustee.
On the Business Day before each Distribution Date, the Master Servicer will
deliver to the Trustee with respect to each Tenant and any Guarantor as of a
date no earlier than three (3) Business Days prior to the related Determination
Date: (i) the publicly available corporate credit rating(s) (of the type set
forth in the Mortgage Loan Schedule) for such Tenant and any Guarantor as of
such date, (ii) the publicly available corporate credit rating(s) (of the type
set forth in the Mortgage Loan Schedule) included in the report prepared
pursuant to this Section 4.02(b) for the immediately preceding Distribution Date
(or in the case of the first Distribution Date, such ratings set forth in the
Mortgage Loan Schedule), and (iii) whether such Tenant or Guarantor has been
placed on credit watch by any Rating Agency.
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.
(d) Each of the Master Servicer and Special Servicer may make information
concerning the Mortgage Loans available on any website that it has established.
SECTION 4.03 Delinquency Advances.
(a) On each Delinquency Advance Date, the Master Servicer shall either (i)
deposit into the Certificate Account from its own funds an amount equal to the
aggregate amount of Delinquency Advances, if any, to be made in respect of the
related Distribution Date, (ii) apply amounts held in the Certificate Account
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make Delinquency Advances, or (iii) make Delinquency
Advances in the form of any combination of (i) and (ii) aggregating the total
amount of Delinquency Advances to be made; provided that, if Late Collections
(net of related Workout Fees) of the delinquent Monthly Payments for which
Delinquency Advances are to be made for the related Distribution Date, are on
deposit in the Certificate Account and available to make such Advances, the
Master Servicer shall utilize such Late Collections to make such Advances
pursuant to clause (ii) above. Any amounts held in the Certificate Account for
future distribution and so used to make Delinquency Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such Delinquency Advances were made). If, as of 3:00 p.m., New York
City
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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. (215) 328-3478
(or such alternative number provided by the Master Servicer to the Trustee in
writing) and by telephone at telephone no. (215) 328-1790 (Attention: Master
Servicing Manager) (or such alternative number provided by the Master Servicer
to the Trustee in writing) as soon as possible, but in any event before 5:00
p.m., New York City time, on such day. If after such notice the Trustee does not
receive the full amount of such Delinquency Advances by 11:00 a.m., New York
City time, on the Business Day immediately following such Master Servicer
Remittance Date, then the Trustee shall make the portion of such Delinquency
Advances that was required to be, but was not, made by the Master Servicer
pursuant to this Section 4.03(a).
(b) The aggregate amount of Delinquency Advances to be made by the Master
Servicer in respect of the Mortgage Loans (including, without limitation,
Assumed Monthly Payments for Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date shall
equal, subject to subsection (c) below, the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Workout Fees payable hereunder, that were due or deemed due, as the
case may be, in respect thereof on their respective Due Dates during the same
month as such Distribution Date and that were not paid by or on behalf of the
related Mortgagors or otherwise collected as of the close of business on the
later of the related Due Date or the last day of the related Collection Period;
provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then, in the event of subsequent delinquencies thereon,
the interest portion of the Delinquency Advance in respect of such Required
Appraisal Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such Delinquency Advance) to equal the product of (i) the amount of the interest
portion of such Delinquency Advance for such Required Appraisal Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is equal to the Stated
Principal Balance of such Required Appraisal Loan immediately prior to such
Distribution Date, net of the related Appraisal Reduction Amount, if any, and
the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no Delinquency Advance
shall be required to be made hereunder if such Delinquency Advance would, if
made, constitute a Nonrecoverable Delinquency Advance. In addition,
Nonrecoverable Delinquency Advances shall be reimbursable pursuant to Section
3.05(a) out of general collections on the Mortgage Loans and REO Properties on
deposit in the Certificate Account. The determination by the Master Servicer or,
if applicable, the Trustee, that it has made a Nonrecoverable Delinquency
Advance or that any proposed Delinquency Advance, if made, would constitute a
Nonrecoverable Delinquency Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed
Delinquency Advance to be made by the Master Servicer, no less than two Business
Days prior to the related Delinquency Advance Date) by the Master Servicer to
the Trustee (or, if applicable, retained thereby) and the Depositor,
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setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
and that supports such determination. If such an Appraisal shall not have been
required and performed pursuant to the terms of this Agreement, the Master
Servicer, the Special Servicer or the Trustee, as the case may be, may, subject
to its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust Fund. The Trustee shall be entitled
to rely on any determination of nonrecoverability that may have been made by the
Master Servicer or the Special Servicer with respect to a particular Delinquency
Advance, and the Master Servicer shall be entitled to rely on any determination
of nonrecoverability that may have been made by the Special Servicer with
respect to a particular Delinquency Advance.
(d) The Master Servicer and the Trustee shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each Delinquency Advance made thereby (out of its own funds) for so
long as such Delinquency Advance is outstanding (or, if any Delinquency Advance
is required to be made in respect of a delinquent Monthly Payment on any
Mortgage Loan prior to the end of the grace period for such Monthly Payment, for
so long as such Delinquency Advance is outstanding following the end of such
grace period), payable first, out of Penalty Charges received on the Mortgage
Loan or REO Loan as to which such Delinquency Advance was made and, then, once
such Delinquency Advance has been reimbursed, out of general collections on the
Mortgage Loans and REO Properties pursuant to Section 3.05(a).
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(a),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
Stated Principal Balance of the related Mortgage Loan or REO Loan or, if
applicable, Replacement Mortgage Loan(s), as the case may be, that will be
outstanding immediately following such Distribution Date. Such reductions shall
be deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
(b) On each Distribution Date, following the payments deemed to be made to
REMIC III in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(b), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of REMIC II Regular
Interests LA-1, LA-2, LB, LC, LD, LE, LF, LG, LH, LJ 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
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of Principal Balance Certificates outstanding after the subsequent adjustments
made on such Distribution Date under Section 4.04(c) below.
(c) On each Distribution Date, following the distributions to be made to
the Certificateholders on such date pursuant to Section 4.01(c), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Principal Balance Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balances of the Class K-2, Class K-1, Class J, Class H,
Class G, Class F, Class E, Class D, Class C and Class B Certificates shall be
reduced sequentially, in that order, in each case, until the first to occur of
such excess being reduced to zero or the related Class Principal Balance being
reduced to zero. If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of the second preceding sentence, then the respective Class
Principal Balances of the Class A-1 and Class A-2 Certificates shall be reduced,
pro rata in accordance with the relative sizes of the then outstanding Class
Principal Balances of such Classes of Certificates, until the first to occur of
such excess being reduced to zero or each such Class Principal Balance being
reduced to zero. Such reductions in the Class Principal Balances of the
respective Classes of Principal Balance Certificates shall be deemed to be
allocations of Realized Losses and Additional Trust Fund Expenses.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms annexed
hereto as Exhibits A-1 through A-15. (In the case of the Class K Certificates,
with the inclusion or exclusion of appropriate bracketed provisions contained in
Exhibit A-12 to reflect the applicable subclass designation.) 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 Non-Registered Certificates will be issued as Definitive
Certificates. The REMIC III Regular Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances or
Certificate Notional Amounts, as the case may be, as of the Closing Date of not
less than $25,000 in the case of the Class A-1, Class A-2, Class B, Class C,
Class D and Class E, $100,000 in the case of the Class F, Class G, Class H,
Class J and Class K, 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
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sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Master Servicer and the Special Servicer, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. If 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) (i)No transfer of any Non-Registered Certificate shall be made unless
such transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act, other than a transfer by the Depositor or
an Affiliate thereof, then the Trustee shall require, in order to assure
compliance with such laws, receipt by it and the Depositor of:
(A) 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
(B) in all other cases, (1) 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
(2) unless the Depositor directs otherwise, an Opinion of Counsel
satisfactory to the Trustee and the Depositor to the effect that such
transfer may
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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).
(ii) None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
(c) (i) No transfer of a Senior Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (1) such Plan
qualifies for the exemptive relief available under the terms of Prohibited
Transaction Exemption 94-29 (granted to certain affiliates of the Depositor) or
Prohibited Transaction Exemption 89-88, 90-83 or D-10433 granted to the
underwriters of the Certificates 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.
(ii) No transfer of a Non-Registered Certificate shall be made (A) to any
Plan or (B) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan, unless the prospective transferee provides
the Depositor, the Trustee and the Master Servicer with an opinion of counsel
satisfactory to the Depositor, the Trustee and the Master Servicer that such
transfer is permissible under applicable law, will not constitute or result in
any non-exempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Depositor, the Trustee or the Master Servicer to any
obligation in addition to those undertaken herein. In lieu of such opinion of
counsel, the prospective transferee of a Non-Registered Certificate that is not
a Residual Certificate may provide a certification of facts substantially to the
effect that the purchase of such Certificate by or on behalf of, or with "plan
assets" of, any Plan is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Depositor, the Trustee or the Master Servicer to
any obligation in addition to those undertaken herein, and the following
conditions are met: (a) the source of funds used to purchase such Certificate is
an "insurance company general account" (as such term is defined in United States
Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"))
and (b) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificates and the
condition set forth in Section I(a) of PTCE 95-60 will be satisfied throughout
the prospective transferees' holding of such Certificates. Any purchaser of
Book-Entry Certificates will be deemed to have represented by such purchase that
either (a) such purchaser is not a Plan and is not purchasing such Certificates
by or on behalf of, or with "plan
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assets" of, any Plan or (b) the purchase of any such Certificate by or on behalf
of, or with "plan assets" of, any Plan is permissible under applicable law, will
not result in any non-exempt prohibited transaction under ERISA or Section 4975
of the Code, and will not subject the Depositor, the Trustee or the Master
Servicer to any obligation in addition to those undertaken herein, and the
following conditions are met: (a) the source of funds used to purchase such
Certificate is an "insurance company general account" (as such term is defined
in PTCE 95-60) and (b) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied as of the date of the acquisition of such Certificates
and the condition set forth in Section I(a) of PTCE 95-60 will be satisfied
throughout the prospective transferees' holding of such Certificates. The
Trustee may require that any prospective transferee of a Subordinated
Certificate that is held as a Definitive Certificate provide such certifications
as the Trustee may deem desirable or necessary in order to establish that such
transferee or the Person in whose name such registration is requested is not a
Plan or a Person who is directly or indirectly purchasing such Certificate on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan. The Trustee shall not have any responsibility to monitor or restrict the
transfer of Ownership Interests in any Certificates that are in the form of a
Book-Entry Certificate.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(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
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knowledge that the proposed Transferee is not a Permitted Transferee or is
not a United States Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate unless it
provides to the Trustee a certificate substantially in the form attached
hereto as Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or
is not a United States Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d) or if any
Holder of a Residual Certificate shall lose its status as a Permitted Transferee
or a United States Person, then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. None of the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d), or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, and to the extent that the
retroactive restoration of the rights of the prior Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid, illegal
or unenforceable, 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
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and conditions of any sale under this clause (ii)(B) shall be determined in
the sole discretion of the Trustee, and the Trustee shall not be liable to
any Person having an Ownership Interest in a Residual Certificate as a
result of its exercise of such discretion.
(iii) The Trustee shall make available to the Internal Revenue Service and
those Persons specified by the REMIC Provisions, all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is not a Permitted Transferee,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the "excess inclusions" of such
Residual Certificate and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record holders at any
time any Person which is not a Permitted Transferee. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of the
Trustee for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
subsection (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Depositor the following:
(A) written notification from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to qualify, downgrade or withdraw its then-current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the Depositor, to the effect that such modification of,
addition to or elimination of such provisions will not cause any of REMIC
I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Certificate to a
Person which is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration
of transfer of any Certificate at the offices of the Certificate Registrar
maintained for such purpose, the Trustee shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class of a
like aggregate Percentage Interest.
(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
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exchange, the Trustee shall execute and the Certificate Registrar shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide the Master
Servicer, the Special Servicer and the Depositor with an updated copy of the
Certificate Register on or about January 1 and July 1 of each year, commencing
July 1, 1999.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Registered Certificates shall initially be issued as one
or more Certificates registered in the name of the Depository or its nominee
and, except as provided in subsection (c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in subsection (c) below, shall not be entitled to definitive, fully
registered Certificates ("Definitive Certificates") in respect of such Ownership
Interests. The Trustee shall not have any responsibility to monitor or restrict
the transfer of Ownership Interests in any Book-Entry Certificate. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate
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Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer and any other documents necessary to satisfy the
requirements of any applicable transfer restrictions, the Trustee shall execute,
and the Certificate Registrar shall authenticate and deliver, the applicable
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar shall be liable for any delay in
delivery of such instructions, and each may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of the Registered Certificates
held in book-entry form, the registered holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly, shall be
entitled directly to receive payments on, to exercise Voting Rights with respect
to, and to transfer and exchange such Definitive Certificates.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of the same Class and like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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SECTION 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder", and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any agent of any of them shall be affected by notice to the
contrary except as provided in Section 5.02(d).
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer and the Special Servicer; Assignment of
Rights and Delegation of Duties by the Master Servicer and
the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Master Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation, and each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer and the Special Servicer, shall be the
successor of the Depositor, the Master Servicer and the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided that (i) such Person is qualified to service
multifamily mortgage loans on behalf of FNMA or FHLMC and (ii) such merger,
consolidation or succession will not result in the downgrade, qualification or
withdrawal of the then-current ratings of the Classes of Certificates that have
been so rated (as evidenced by a letter to such effect from each Rating Agency).
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(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to
the contrary, the Master Servicer and the Special Servicer may assign all of its
rights and delegate all of its duties and obligations under this Agreement;
provided that the Person accepting such assignment or delegation shall be a
Person that is qualified to service multifamily mortgage loans on behalf of FNMA
or FHLMC, is reasonably satisfactory to the Trustee and the Depositor, is
willing to service the Mortgage Loans and executes and delivers to the Depositor
and the Trustee an agreement, in form and substance reasonably satisfactory to
the Depositor and the Trustee, which contains an assumption by such Person of
the due and punctual performance and observance of each covenant and condition
to be performed or observed by the Master Servicer or the Special Servicer, as
the case may be, under this Agreement; provided further that such assignment or
delegation will not result in the downgrade, qualification or withdrawal of the
then-current ratings of the Classes of Certificates that have been rated (as
evidenced by a 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.
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None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not incidental
to its respective duties under this Agreement and which in its opinion may
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans on deposit in the Certificate Account as
provided by Section 3.05(a).
SECTION 6.04 Depositor, Master Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Master Servicer or the Special Servicer shall resign from its respective
obligations and duties hereby imposed on it except upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of the Depositor, the Master Servicer
or the Special Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by the Master Servicer or
the Special Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the Master
Servicer or the Special Servicer, as the case may be, in accordance with Section
7.02.
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer or the Special Servicer hereunder or exercise the rights of the
Master Servicer or the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
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(i) (A) any failure by the Master Servicer to make a required deposit to
the Certificate Account which continues unremedied for one Business Day
following the date on which such deposit was first required to be made, or (B)
any failure by the Master Servicer to deposit into, or to remit to the Trustee
for deposit into, the Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New York
City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to remit to
the Master Servicer for deposit into, the Certificate Account any amount
required to be so deposited or remitted under this Agreement which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance was first required to be made; or
(iii) any failure by the Master Servicer or the Special Servicer to timely
make any Servicing Advance required to be made by it pursuant to this Agreement
which continues unremedied for a period ending on the earlier of (A) 15 days
following the date such Servicing Advance was first required to be made, and (B)
either, if applicable, (1) in the case of a Servicing Advance relating to the
payment of insurance premiums, the day on which such insurance coverage
terminates if such premiums are not paid or (2) in the case of a Servicing
Advance relating to the payment of real estate taxes, the date of the
commencement of a foreclosure action with respect to the failure to make such
payment; or
(iv) any failure on the part of the Master Servicer or the Special Servicer
duly to observe or perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer or the Special Servicer contained
in this Agreement which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as the
case may be, by the Trustee or the Depositor, or to the Master Servicer or the
Special Servicer, as the case may be by the Holders of Certificates entitled to
not less than 25% of the Voting Rights; provided, however, that if such covenant
or agreement is capable of being cured and the Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30 day period
shall be extended for an additional 30 days; or
(v) any breach on the part of the Master Servicer or the Special Servicer
of any representation or warranty contained in this Agreement which materially
and adversely affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer by the Trustee or the Depositor, or to
the Master Servicer or the Special Servicer, as the case may be by the Holders
of Certificates entitled to not less than 25% of the Voting Rights; provided,
however, if such breach is capable of being cured and the Master Servicer or
Special Servicer, as applicable, such 30 day period shall be extended for an
additional 30 days; or
(vi) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs,
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shall have been entered against the Master Servicer or the Special Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vii) the Master Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to all
or substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take any corporate action in furtherance
of the foregoing; or
(ix) the Trustee shall have received written notice from FITCH IBCA that
the continuation of the Master Servicer or the Special Servicer in such capacity
would result in the downgrade, qualification or withdrawal of any rating then
assigned by such Rating Agency to any Class of Certificates, or
(x) the Master Servicer or the Special Servicer is removed from Standard &
Poor's approved master servicer list or special servicer list, as the case may
be, and the ratings of any of the Certificates by Standard & Poor's are
downgraded, qualified or withdrawn (including, without limitation, placed on
"negative credit watch") in connection with such removal.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee shall
terminate, by notice in writing to the Defaulting Party, with a copy of such
notice to the Depositor (if the termination is effected by the Trustee) or to
the Trustee (if the termination is effected by the Depositor), all of the rights
and obligations of the Defaulting Party under this Agreement and in and to the
Mortgage Loans and the proceeds thereof (other than any rights of the Defaulting
Party as Certificateholder). From and after the receipt by the Defaulting Party
of such written notice, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agrees that if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee or any other Successor Master Servicer or
Special Servicer with all documents and records requested by it to enable it to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall
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cooperate with the Trustee or any other Successor Master Servicer or Special
Servicer in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee or any other Successor Master Servicer or Special Servicer for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Master Servicer or the Special Servicer to the
Certificate Account, the Distribution Account, the REO Account or any Servicing
Account or thereafter be received with respect to the Mortgage Loans or any REO
Property (provided, however, that the Master Servicer and the Special Servicer
each shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances made by it or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer resigns
pursuant to Section 6.04 or receives a notice of termination pursuant to Section
7.01, the Trustee shall be the successor in all respects to the Master Servicer
or the Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer or the Special Servicer, as the
case may be, by the terms and provisions hereof, including, without limitation,
the Master Servicer's obligation to make Delinquency Advances; provided that any
failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's failure to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the Master Servicer or the Special Servicer or for any losses
incurred by the Master Servicer or the Special Servicer pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to the
applicable Master Servicing Fee and Special Servicing Fee and all funds relating
to the Mortgage Loans which the Master Servicer or the Special Servicer would
have been entitled to charge to the Certificate Account or the Distribution
Account if the Master Servicer or the Special Servicer had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee or if the Trustee is not approved as a master servicer or special
servicer, as the case may be, by each Rating Agency, promptly appoint any FNMA
or FHLMC-approved mortgage loan servicing institution that has a net worth of
not less than $10,000,000 and is otherwise acceptable to each Rating Agency (as
evidenced by 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
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Master Servicer or the Special Servicer, as the case may be, hereunder, the
Trustee shall act in such capacity as hereinabove provided. In connection with
any such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans or otherwise as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. The Depositor, the Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% of the Voting
Rights allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i) or (ii) of Section 7.01 may be waived only by all of
the Certificateholders of the affected Classes. Upon any such waiver of an Event
of Default, such Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee (other than as successor Master Servicer or Special Servicer) shall
exercise such of the rights and powers vested in it by this Agreement, and use
the
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same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs. Any permissive
right of the Trustee contained in this Agreement shall not be construed as a
duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer or any other person and accepted by the Trustee
in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of
all such Events of Default which may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond
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or other paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance therewith and the expense of such consultation
with counsel shall be reimbursable under Section 8.05(b) hereof;
(iii) The Trustee shall not be under any obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been cured,
to exercise such of the rights and powers vested in it by this Agreement, and to
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
50% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) The Trustee may 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
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received by the Trustee at the Corporate Trust Office, and such notice
references the Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission of the
Master Servicer or the Special Servicer (unless the Trustee is acting as Master
Servicer or the Special Servicer, as the case may be) or of the Depositor or any
other person.
SECTION 8.03 Trustee not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
representations and warranties of, and the other statements attributed to the
Trustee in Sections 2.02, 2.05, 2.07 and 8.13 and the signature of the Trustee
set forth on each outstanding Certificate, shall be taken as the statements of
the Depositor, the Master Servicer or the Special Servicer, as the case may be,
and the Trustee assumes no responsibility for correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (except to
the extent set forth in Section 8.13) or of any Certificate (other than as to
the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, may become the owner
or pledgee of Certificates with the same rights it would have if it was not
Trustee.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) Monthly, the Trustee shall be entitled to withdraw the Trustee Fee from
the Distribution Account pursuant to Section 3.05(b) for all services rendered
by it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee. On or
prior to the Distribution Date in each month, the Trustee shall be entitled to
withdraw and pay itself from amounts then on deposit in the Distribution Account
an amount equal to the then unpaid Trustee Fees.
(b) The Trustee and any of its directors, officers, employees or agents
shall be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Distribution Account from time to time) against any
loss, liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, any act or
omission of the Trustee relating to the exercise and performance of any of the
powers and duties of the Trustee hereunder; provided that neither the Trustee
nor any of the other above
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specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee in the normal course of the Trustee's
performing its routine duties in accordance with any of the provisions hereof,
(iii) any expense or liability specifically required to be borne thereby
pursuant to the terms hereof, or (iv) any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of the
Trustee's obligations and duties hereunder, or by reason of reckless disregard
of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a corporation
organized and doing business under the laws of the United States of America or
any State thereof or the District of Columbia, authorized under such laws to
exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority. If such association or corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such association or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The long-term unsecured debt obligations of the Trustee
shall at all times be rated not less than "AA" by Standard & Poor's and "AA" by
FITCH IBCA (or, if not rated by FITCH IBCA, otherwise acceptable to FITCH IBCA
as would not result in a qualification, downgrade or withdrawal of the rating
assigned by FITCH IBCA to any Class of Certificates) or such other rating as
shall not result in the qualification, downgrade or withdrawal of any of the
ratings then assigned to the respective Classes of Certificates, as confirmed in
writing by each Rating Agency. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them or the
Trustee appoints a fiscal agent, and if in light of such agreement or such
appointment, the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates,
then upon the execution and delivery of such agreement or the effectiveness of
such appointment, the Trustee shall not be required to resign, and may continue
in such capacity, for so long as none of the ratings assigned by the Rating
Agencies to the Certificates is adversely affected thereby. The corporation or
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Master Servicer, the Special Servicer and their
respective Affiliates.
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SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Master
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08. Upon any succession of the Trustee under this
Agreement, the predecessor Trustee shall be entitled to the payment of
compensation and reimbursement for services rendered and expenses incurred
(including without limitation unreimbursed Advances and interest thereon made
thereby) accrued or payable up to and including the effective date of such
termination, at such times and from such sources as if the predecessor Trustee
had not resigned or been removed.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor
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trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the successor trustee shall mail notice of such appointment
to the Depositor and the Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within fifteen days after the receipt
by it of a request to do so, or in case an Event of Default in respect of the
Master Servicer shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
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(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall itself (or together with an affiliate
guaranteeing its financial performance) have a combined capital and surplus of
at least $15,000,000, shall have long-term unsecured debt obligation ratings
from FITCH IBCA of at least "BBB" or be otherwise acceptable to FITCH IBCA,
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File, shall maintain and keep in full force and effect throughout the
term of this Agreement a fidelity bond and an errors and omissions insurance
policy covering its officers and employees and other persons acting on its
behalf in connection with its activities under the Agreement in the amount of
coverage customary for custodians acting in such capacity, and shall not be the
Depositor, a Mortgage Loan Seller or any Affiliate of the Depositor or a
Mortgage Loan Seller. Each Custodian shall be subject to the same obligations
and standard of care as would be imposed on the Trustee hereunder in connection
with the retention of Mortgage Files directly by the Trustee.
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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 of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its offices primarily responsible for administering
the Trust Fund (or at the Primary Servicing Office of the Master Servicer) and
shall, upon reasonable advance notice, make available during normal business
hours for review by any Holder, Certificate Owner or prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder, Certificate Owner or prospective transferee of a
Non-Registered Certificate or interest therein, any private placement memorandum
or other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Trustee; and (ii) in all cases, (A) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (B) all reports required to be delivered
to Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (C) all Officer's Certificates delivered to the Trustee since the
Closing Date pursuant to Section 3.13, (D) all accountants' reports delivered to
the Trustee since the Closing Date pursuant to Section 3.14, (E) the most recent
inspection report prepared by the Master Servicer or Special Servicer and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12, (F) as to each Mortgage Loan pursuant to which the related
Mortgagor is required to deliver such items or the Master Servicer or Special
Servicer has otherwise acquired such items, the most recent annual operating
statement and rent roll of the related Mortgaged Property and financial
statements of the related Mortgagor collected by the Master Servicer or the
Special Servicer and delivered to the Trustee pursuant to Section 3.12(b), (G)
any and all notices and reports delivered to the Trustee with respect to any
Mortgaged Property securing a defaulted Mortgage Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (H) the respective Mortgage
Files, including, without limitation, any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.20
(but only for so long as the affected Mortgage Loan is part of the Trust Fund)
and (I) any and all Officer's Certificates and other evidence delivered to or
retained by the Trustee to support the Master Servicer's, Special Servicer's, or
Trustee's determination that any Advance was or, if made, would be a
Nonrecoverable Advance. Copies of any and all of the foregoing items will be
available from the Trustee upon written request; however, the Trustee shall be
permitted to require from the requesting Certificateholder payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
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In connection with providing access to or copies of the items described in
the preceding paragraph, the Trustee may require (a) in the case of Certificate
Owners, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, a written confirmation executed by the requesting Person,
in form reasonably satisfactory to the Trustee, generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest therein,
is requesting the information solely for use in evaluating a possible investment
in Certificates and will otherwise keep such information confidential. All
Certificateholders, by the acceptance of their Certificates, shall be deemed to
have agreed to keep such information confidential. Notwithstanding the foregoing
provisions of this Section 8.12(a), the Trustee shall have no responsibility for
the accuracy, completeness or sufficiency for any purpose of any information so
made available or furnished by it pursuant to this Section 8.12(a).
(b) The Trustee shall provide or cause to be provided to the Depositor, the
Master Servicer, and the Special Servicer, and to the Office of Thrift
Supervision, the Federal Deposit Insurance Corporation, and any other federal or
state banking or insurance regulatory authority that may exercise authority over
any Certificateholder, access to the Mortgage Files and any other documentation
regarding the Mortgage Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee designated by it.
SECTION 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer, for
its own benefit and the benefit of the Certificateholders, and to the Special
Servicer and the Depositor, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the Trustee, and the
performance and compliance with the terms of this Agreement by the Trustee, will
not violate the Trustee's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of its
assets.
(iii) This Agreement, assuming due authorization, execution and delivery by
the Special Servicer, the Master Servicer and the Depositor, constitutes a
valid, legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditor's rights generally, and general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
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(iv) The Trustee is not in default with respect to any order or decree of
any court, or any order, regulation or demand of any federal, state, municipal
or governmental agency having jurisdiction, which default, in the Trustee's good
faith and reasonable judgment, is likely to affect materially and adversely the
ability of the Trustee to perform its obligations or the financial condition or
operations of the Trustee or its properties.
(v) No litigation is pending or, to the best of the Trustee's knowledge,
threatened against the Trustee which would prohibit the Trustee from entering
into this Agreement or, in the Trustee's good faith and reasonable judgment, is
likely to materially and adversely affect the ability of the Trustee to perform
its obligations under this Agreement.
(vi) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by the Trustee with this Agreement, or the consummation by the
Trustee of any transaction contemplated hereby, other than (1) such consents,
approvals, authorization, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on performance by the Trustee under this Agreement.
SECTION 8.14 Filings with the Securities and Exchange Commission.
Based on information furnished to it by the Master Servicer and the
Depositor (in an 80 column unformatted electronic format acceptable to the
Trustee), the Trustee will prepare and file with the Securities and Exchange
Commission on Form 8-K (including 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, 2000 (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.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee to
provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase
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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,
living on the date hereof.
The Master Servicer or the Depositor each may, at its option, elect to
purchase all of the Mortgage Loans and each REO Property remaining in the Trust
Fund as contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Master Servicer or the
Depositor may so elect to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I only if the aggregate Stated Principal Balance of
the Mortgage Loans and any REO Loans remaining in the Trust Fund at the time of
such election is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. Such option shall be
exercisable by each such Person in the priority in which such Person is listed
in the immediately foregoing sentence. In the event that the Master Servicer or
the Depositor purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I in accordance with the preceding sentence, the Master
Servicer 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 second paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, the Trustee shall release or cause to
be released to the Master Servicer or the Depositor, as applicable, the Mortgage
Files for the remaining Mortgage Loans and any Reserve Funds and Escrow Payments
in any Reserve Accounts or Servicing Account, as applicable, and shall execute
all assignments, endorsements and other instruments furnished to it by the
Master Servicer 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.
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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
to which the Certificates so presented and surrendered belong. Amounts on
deposit in the Distribution Account as of the final Distribution Date (exclusive
of any portion of such amounts payable or reimbursable to any Person pursuant to
clauses (ii)-(vii) of Section 3.05(b)) shall be allocated for the purposes, in
the amounts and in accordance with the priority set forth in Section 4.01. Any
funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner, and shall be disposed
of in accordance with the last paragraph of Section 4.01(g).
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or the Depositor purchases all of the
Mortgage Loans and each REO Property remaining in REMIC I as provided in Section
9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III) shall
be terminated in accordance with the following additional requirements, unless
the Master Servicer or the Depositor, as the case may be, obtains at its own
expense and delivers to the Trustee an Opinion of Counsel, addressed to the
Depositor, the Master Servicer and the Trustee, to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 9.02 will not
(subject to Section 10.01(f)) result in the imposition of taxes on "prohibited
transactions" of REMIC I, REMIC II or REMIC III as defined in Section 860F of
the Code or cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to the final Tax Return for each of REMIC I,
REMIC II and REMIC III pursuant to Treasury regulation Section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder;
(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
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REMIC I to the Master Servicer or the Depositor, as applicable, for cash;
and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the related Class of Residual
Certificates all cash on hand in the related REMIC (other than cash
retained to meet claims), and REMIC I, REMIC II and REMIC III shall
terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the Trustee to adopt a plan of complete liquidation of REMIC I,
REMIC II and REMIC III, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trustee shall make an election to treat each of REMIC I, REMIC II
and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-I Certificates are hereby designated as the sole class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The REMIC II Regular Interests are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The REMIC III Regular Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) and the Class
R-III Certificates will be the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. The Master Servicer,
the Special Servicer and the Trustee shall not (to the extent within the control
of each) permit the creation of any "interests" (within the meaning of Section
860G of the Code) in REMIC I, REMIC II or REMIC III other than the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(c) The Trustee, as agent for the tax matters person of each of REMIC I,
REMIC II and REMIC III, shall (i) act on behalf of the REMIC in relation to any
tax matter or controversy involving the Trust Fund and (ii) represent the Trust
Fund in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of 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
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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 the Grantor Trust and each REMIC created hereunder. The expenses of
preparing such returns shall be borne by the Trustee without any right of
reimbursement therefor.
(e) The Trustee shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of such Residual Certificate to any Person who is not a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III.
(f) The Trustee shall take such actions and shall cause each REMIC created
hereunder to take such actions as are reasonably within the Trustee's control
and the scope of its duties more specifically set forth herein as shall be
necessary to maintain the status thereof as a REMIC under the REMIC Provisions.
The Trustee shall not knowingly or intentionally take any action, cause REMIC I,
REMIC II or REMIC III to take any action or fail to take (or fail to cause to be
taken) any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) adversely affect the status of REMIC I,
REMIC II or REMIC III as a REMIC or (ii) result (subject to the following
sentence) in the imposition of a tax upon REMIC I, REMIC II or REMIC III
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee receives an Opinion of Counsel (at the expense of the party
seeking to take such action or, if such party fails to pay such expense, and the
Trustee determines that taking such action is in the best interest of REMIC I,
REMIC II or REMIC III and the Certificateholders, at the expense of the Trust
Fund, but in no event at the expense of the Trustee) to the effect that the
contemplated action will not, with respect to any REMIC created hereunder
adversely affect such status or, unless the Master Servicer, the Trustee, or the
Special Servicer, as applicable (or other Person acceptable to the Trustee),
determine that the monetary exposure to REMIC I, REMIC II and REMIC III is not
material and in its or their sole discretion to indemnify, to the extent
reasonably acceptable to the Trustee, the Trust Fund against the imposition of
such tax. Wherever in this Agreement a contemplated action may not be taken
because the timing of such action might result in the imposition of a tax on the
Trust Fund, or may only be taken pursuant to an Opinion of Counsel
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that such action would not impose a tax on the Trust Fund, such action may
nonetheless be taken provided that the indemnity given in the preceding sentence
with respect to any taxes that might be imposed on the Trust Fund has been given
and that all other preconditions to the taking of such action have been
satisfied. The Trustee shall not take or fail to take any action (whether or not
authorized hereunder) as to which the Master Servicer has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior to taking any
action with respect to the Trust Fund or its assets, or causing the Trust Fund
to take any action, which is not expressly permitted under the terms of this
Agreement, each of the parties hereto will consult with the Trustee or its
designee, in writing, with respect to whether such action could cause an Adverse
REMIC Event to occur with respect to REMIC I, REMIC II or REMIC III, and such
party shall not take any such action, or cause REMIC I, REMIC II or REMIC III to
take any such action, as to which the Trustee has advised it in writing that an
Adverse REMIC Event could occur. The Trustee may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not expressly permitted by this Agreement. At all times as may
be required by the Code, the Trustee will to the extent within its control and
the scope of its duties as specifically set forth herein, maintain substantially
all of the assets of REMIC I as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of
REMIC I, REMIC II or REMIC III as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of REMIC I, REMIC II or REMIC III as
defined in Section 860G(c) of the Code, or on any contributions to REMIC I,
REMIC II or REMIC III after the Startup Day therefor pursuant to Section 860G(d)
of the Code, or any other tax is imposed by the Code or any applicable
provisions of state or local laws, such tax shall be charged (i) to the Trustee,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) to any other party hereto, if such tax
arises out of or results from a breach by such party of any of its obligations
under this Agreement, or (iii) otherwise (including, without limitation, in the
case of any tax permitted to be incurred pursuant to Section 3.17(a)) against
amounts on deposit in the Distribution Account as provided by Section 3.05(b).
(h) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I, REMIC II and REMIC III on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Trust Fund unless the Trustee shall have received
an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject such REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(j) None of the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which REMIC I, REMIC II or
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REMIC III will receive a fee or other compensation for services nor (to the
extent within its control) permit REMIC I, REMIC II or REMIC III to receive any
income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare and
file with the Internal Revenue Service Form 8811, "Information Return for Real
Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for each of REMIC I, REMIC II and REMIC III.
(l) None of the Trustee, the Master Servicer, or the Special Servicer shall
sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC
I, REMIC II or REMIC III, (iii) the termination of the Trust Fund pursuant to
Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to or
as contemplated by Section 2.03 or 3.18 of this Agreement) or acquire any assets
for the Trust Fund or sell or dispose of any investments in the Certificate
Account, the Distribution Account, or the REO Account for gain, or accept any
contributions to the Trust Fund after the Closing Date, unless it has received
an Opinion of Counsel that such sale, disposition, substitution or acquisition
will not (a) affect adversely the status of REMIC I, REMIC II or REMIC III as a
REMIC or, (b) subject to Section 10.01(f), cause REMIC I, REMIC II or REMIC III
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.02 Depositor, Master Servicer, Special Servicer, Trustee to
Cooperate.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within ten days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Depositor shall each
furnish such reports, certifications and information, and access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the Trustee in order to enable it
to perform its duties hereunder.
SECTION 10.03 Grantor Trust Administration.
(a) The Trustee shall treat the Grantor Trust, for tax return preparation
purposes, as a grantor trust under the Code and, if necessary, under applicable
state law and will file appropriate federal or state Tax Returns for each
taxable year ending on or after the last day of the calendar year in which the
Certificates are issued.
(b) The Trustee shall pay out of its own funds any and all routine tax
administration expenses of the Trust Fund incurred with respect to the Grantor
Trust (but not including any professional fees or expenses related to audits or
any administrative or judicial proceedings with respect to the Trust Fund that
involve the Internal Revenue Service or state tax
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authorities which extraordinary expenses shall be payable or reimbursable to the
Trustee from the Trust Fund unless otherwise provided in Section 10.02(e) or
10.02(f)).
(c) The Trustee shall prepare, sign and file when due all of the Tax
Returns in respect of the Grantor Trust. The expenses of preparing and filing
such returns shall be borne by the Trustee without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the
Trustee or its designee such information with respect to the Grantor Trust as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the
Trustee's request therefor, shall provide in writing to the Trustee such
information as is reasonably requested by the Trustee for tax purposes, and the
Trustee's duty to perform its reporting and other tax compliance obligations
under this Section 10.02 shall be subject to the condition that it receives from
the Depositor such information possessed by the Depositor that is necessary to
permit the Trustee to perform such obligations.
(d) The Trustee shall perform on behalf of the Grantor Trust all reporting
and other tax compliance duties that are required in respect thereof under the
Code, the Grantor Trust Provisions or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority.
(e) The Trustee shall perform its duties hereunder so as to maintain the
status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions (and the Master Servicer and the Special Servicer shall assist the
Trustee to the extent reasonably requested by the Trustee and to the extent of
information within the Trustee's, the Master Servicer's or the Special
Servicer's possession or control). None of the Trustee, Master Servicer, the
Special Servicer shall knowingly take (or cause the Grantor Trust to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
adversely affect the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions (any such adverse effect on grantor trust status, an
"Adverse Grantor Trust Event"), unless the Trustee has obtained or received an
Opinion of Counsel (at the expense of the party requesting such action or at the
expense of the Trust Fund if the Trustee seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Trustee has advised
it in writing that the Trustee has received or obtained an Opinion of Counsel to
the effect that an Adverse Grantor Trust Event could result from such action or
failure to act. In addition, prior to taking any action with respect to the
Grantor Trust, or causing the Trust Fund to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Trustee or its designee, in writing,
with respect to whether such action could cause an Adverse Grantor Trust Event
to occur. Neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the Trustee. The Trustee may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund or the Trustee.
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(f) If any tax is imposed on the Grantor Trust, such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees) shall be charged to and paid by: (i) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Section 10.02; (ii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.02; or (iv) the portion of the Trust Fund constituting the Grantor
Trust in all other instances.
(g) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to the Grantor Trust on a calendar year and on an accrual
basis.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties hereto,
without the consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may
be inconsistent with any other provisions herein or therein or to correct any
error,
(iii) to modify, eliminate or add to any of its provisions to such extent
as shall be necessary or desirable to maintain the qualification of REMIC I,
REMIC II or REMIC III as a REMIC at all times that any Certificate is
outstanding or to avoid or minimize the risk of the imposition of any tax on
REMIC I, REMIC II or REMIC III pursuant to the Code that would be a claim
against the Trust Fund, provided that the Trustee has received an Opinion of
Counsel to the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and (B) such action will not adversely affect in any material respect
the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate
Account or the Distribution Account or to change the name in which the
Certificate Account is maintained, provided that (A) the Delinquency Advance
Date or the Master Servicer Remittance Date shall in no event be later than the
related Distribution Date, (B) such change shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder and (C) such change shall not result in the downgrade,
qualification or withdrawal of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(d) or any
other provision hereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," provided that such change
shall not, as evidenced by an Opinion of
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Counsel, cause either the Trust Fund or any of the Certificateholders (other
than the transferor) to be subject to a federal tax caused by a transfer to a
Person that is not a United States Person and a Permitted Transferee, or
(vi) to modify, eliminate or add any provision to this Agreement to provide
for a book-entry registration system for the Private Certificates, or
(vii) to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be materially inconsistent with the
provisions of this Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding; or
(iii) modify the definition of "Servicing Standard" without the
consent of the Holders of all Certificates then outstanding.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion or
Opinions of Counsel to the effect that (i) such amendment is permitted pursuant
to the terms of this Agreement and (ii) such amendment or the exercise of any
power granted to the Master Servicer, the Special Servicer, the Depositor, the
Trustee or any other specified person in accordance with such amendment will not
result in the imposition of a tax on REMIC I, REMIC II or REMIC III pursuant to
the REMIC Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify
as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee shall
furnish a statement describing the amendment to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
156
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(f) The Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a) or (c) shall be borne by the Person seeking the related amendment,
except that if the Master Servicer or the Trustee requests any amendment of this
Agreement in furtherance of the rights and interests of Certificateholders, the
cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (c) shall be payable out of the Certificate Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust Fund on direction by the Trustee,
such direction to be given by the Trustee only upon the Trustee's receipt of an
Opinion of Counsel to be obtained by the party requesting such recordation (the
cost of which may be paid out of the Certificate Account) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court 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
157
<PAGE>
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: EVP
Servicing, telecopy number: (215) 328-3478 (with copies to General Counsel
(telecopy number: (215) 328-3620) and to the Master Servicing Manager, 150 South
Wacker, 28th Floor, Chicago, Illinois 60606, telecopy number (312) 845-8617));
(iii) in the case of the Trustee, the Corporate Trust Office; (iv) in the case
of the Special Servicer, 550 California Street, San Francisco, California 94101,
telecopy number (415) 391-2949, Attention: CMBS Portfolio Manager (with a copy
to General Counsel); (v) in the case of the Rating Agencies, (A) Standard &
Poor's Rating Services, 26 Broadway, New
158
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York, New York 10004, Attention: Commercial Mortgage Surveillance Manager,
telecopy number: (212) 208-0053 and (B) FITCH IBCA, Inc., One State Street
Plaza, New York, New York 10004, Attention: Commercial Mortgage Surveillance
Dept., telecopy number: (212) 635-0295; and (vi) in the case of the
Underwriters, (A) Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004,
Attention Rolf Edwards telecopy number: (212) 346-3594 (B) Deutsche Bank
Securities Inc., 31 West 52nd Street, New York, NY 10019, Attention Greg Hartch
telecopy number: (212) 469-4579 and (C) Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, NY 10172, Attention Mark Brown telecopy
number: (212) 892-3895 or as to each such Person such other address as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans (including all Replacement
Mortgage Loans), all principal and interest received or receivable with respect
to the Mortgage Loans (other than principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate Account
and the Distribution Account and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to 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
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in preparing and filing such continuation statements. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable Uniform Commercial Code.
SECTION 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and permitted assigns
and all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.09 Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide notice or
a copy of the listed item to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation, termination or merger of the Master Servicer,
the Special Servicer or the Trustee;
(iv) any change in the location of the Distribution Account;
(v) a copy of the notice given pursuant to Section 2.03(a) and the
repurchase of Mortgage Loans by a Mortgage Loan Seller pursuant to Section
6 of the Mortgage Loan Purchase Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) Each of the Master Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14.
(c) To the extent it is not already required to do so under Section 4.02
hereof, the Trustee shall promptly furnish to each Rating Agency copies of each
report prepared and/or delivered by it pursuant to Section 4.02 hereof.
160
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(d) Each of the Master Servicer, the Special Servicer and the Trustee shall
provide such additional information to each Rating Agency upon request is in its
possession or reasonably available to it.
161
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized, in each case as
of the day and year first above written.
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.,
Depositor
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
By: /s/ Jack A. Aini
----------------------------------------
Name: Jack A. Aini
Title: Vice President
162
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 9th day of February, 1999, before me, a notary public in and for
said State, personally appeared David Lazarus known to me to be a Vice President
of GMAC COMMERCIAL MORTGAGE SECURITIES, INC., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Anita Chiu
-----------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 9th day of February, 1999, before me, a notary public in and for
said State, personally appeared David Lazarus known to me to be a Vice President
of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Anita Chiu
-----------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of February, 1999, before me, a notary public in and for
said State, personally appeared Jack A. Aini known to me to be an Vice President
of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association
duly organized, validly existing and in good standing under the United States of
America that executed the within instrument, and also known to me to be the
person who executed it on behalf of such nationally chartered bank, and
acknowledged to me that such nationally chartered bank executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Anita Chiu
-----------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS X CERTIFICATE
CLASS X MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Notional Amount of this Class X
Variable Certificate as of the Issue Date: $__________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class X Certificates
February 1, 1999 as of the Issue Date: $1,334,328,273
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Loans as of their respective Cut-off Dates, after
deducting payments of principal due on or before
Issue Date: February 9, 1999 such date, whether or not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [CUSIP No. 361849 ER 9/
ISIN No. US361849ER97]
Certificate No. X-
</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 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,
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
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.
A-1-1
<PAGE>
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $27 OF OID PER
$1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 9.99%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $.07 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
AGREEMENT ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Class X Certificate (obtained by dividing the
notional principal amount of this Class X Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Class X Certificates (their "Class Notional Amount") as of the Issue Date)
in that certain beneficial ownership interest evidenced by all the Class X
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (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 1999-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.
A-1-2
<PAGE>
The Class X Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class X
Certificates are exchangeable for new Class X Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class X Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of 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 Section 4975 of 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: (1) such Plan qualifies for the
exemptive relief available under the terms of Prohibited Transaction Exemption
94-29 (granted to GMAC and certain of its affiliates) or Prohibited Transaction
Exemption 89-88, 90-83 or D-10433 granted to the underwriters of the
Certificates 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.
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
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any
A-1-3
<PAGE>
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-1-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
________________________________________________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to_____________)
and all applicable statements and notices should be mailed to __________________
_______________________________________________________________________________.
This information is provided by __________________________________________,
the assignee named above, or ____________________________________, as its agent.
A-1-6
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class A-1
5.830% per annum Certificate as of the Issue Date: $__________
Date of Pooling and Servicing Agreement: February Certificate Principal Balance of all the Class A-1
1, 1999 Certificates as of the Issue Date: $240,000,000
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [CUSIP No. 361849 ES 7/
ISIN No. US361849ES70]
Certificate No. A-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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
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.
A-2-1
<PAGE>
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 "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (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 1999-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.
A-2-2
<PAGE>
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-1
Certificates are exchangeable for new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of 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 Section 4975 of 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: (1) such Plan qualifies for the
exemptive relief available under the terms of Prohibited Transaction Exemption
94-29 (granted to GMAC and certain of its affiliates) or Prohibited Transaction
Exemption 89-88, 90-83 or D-10433 granted to the underwriters of the
Certificates 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.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made
A-2-3
<PAGE>
upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-2-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to __________________
_______________________________________________________________________________.
This information is provided by _____________, the assignee named above, or
________________________________________, as its agent.
A-2-6
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class A-2
Lesser of 6.175% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Certificate Principal Balance of all the Class A-2
Date of Pooling and Servicing Agreement: Certificates as of the Issue Date: $680,686,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [CUSIP No. 361849 ET 5/
GMAC Commercial Mortgage Corporation ISIN No. US361849ET53]
Certificate No. A-2-
</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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
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.
A-3-1
<PAGE>
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 "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class A-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1999-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.
A-3-2
<PAGE>
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of 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 Section 4975 of 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: (1) such Plan qualifies for the
exemptive relief available under the terms of Prohibited Transaction Exemption
94-29 (granted to GMAC and certain of its affiliates) or Prohibited Transaction
Exemption 89-88, 90-83 or D-10433 granted to the underwriters of the
Certificates 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.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made
A-3-3
<PAGE>
upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-3-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _____________________, the assignee named
above, or ____________________________, as its agent.
A-3-6
<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
CLASS B MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class B
Lesser of 6.295% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Class Principal Balance of all the Class B Certificates
Date of Pooling and Servicing Agreement: as of the Issue Date: $66,716,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [CUSIP No. 361849 EU 2/
GMAC Commercial Mortgage Corporation ISIN No. US361849EU27]
Certificate No. B-
</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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2 AND CLASS X
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN AGREEMENT
REFERRED TO HEREIN.
A-4-1
<PAGE>
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1 AND CLASS A-2 CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING
THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C,
CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J 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 B Certificate (obtained by dividing the
principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class B Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class B Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-4-2
<PAGE>
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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class B Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Any purchaser of a Class B Certificate will be deemed to have represented
by such purchase that either (a) such purchaser is not an employee benefit plan
or other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan") and is not purchasing such
Certificate by or on behalf of, or with "plan assets" of, any Plan or (b) the
purchase of any such Certificate by or on behalf of, or with "plan assets" of,
any Plan is permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and will not
subject the Depositor, the Trustee, or the Servicer to any obligation in
addition to those undertaken in the Agreement, and the following conditions are
met: (a) the source of funds used to purchase such Certificate is an "insurance
company general account" (as such term is defined in PTCE 95-60) and (b) the
conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as
of the date of the acquisition of such Certificate and the condition set forth
in Section I(a) of PTCE 95-60 will be satisfied throughout the prospective
transferees' holding of such Certificate. The Trustee may require that any
prospective transferee of a Class B Certificate that is held as a Definitive
Certificate, provide such certifications as the Trustee may deem desirable or
necessary in order to establish that such transferee or the Person in whose name
such registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor,
A-4-3
<PAGE>
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-4-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or __________________________, as its agent.
A-4-6
<PAGE>
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
CLASS C MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class C
Lesser of 6.590% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Class Principal Balance of all the Class C Certificates
Date of Pooling and Servicing Agreement: as of the Issue Date: $66,717,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [CUSIP No. 361849 EV 0/
GMAC Commercial Mortgage Corporation ISIN No. US361849EV00]
Certificate No. C-
</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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X AND CLASS B
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
A-5-1
<PAGE>
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2 AND CLASS B CERTIFICATES OF THE SAME SERIES. IN ADDITION,
FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J 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 C Certificate (obtained by dividing the
principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the
A-5-2
<PAGE>
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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class C Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Any purchaser of a Class C Certificate will be deemed to have represented
by such purchase that either (a) such purchaser is not an employee benefit plan
or other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan") and is not purchasing such
Certificate by or on behalf of, or with "plan assets" of, any Plan or (b) the
purchase of any such Certificate by or on behalf of, or with "plan assets" of,
any Plan is permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and will not
subject the Depositor, the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, and the following conditions are met: (a)
the source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in PTCE 95-60) and (b) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date
of the acquisition of such Certificate and the condition set forth in Section
I(a) of PTCE 95-60 will be satisfied throughout the prospective transferees'
holding of such Certificate. The Trustee may require that any prospective
transferee of a Class C Certificate that is held as a Definitive Certificate,
provide such certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee or the Person in whose name such
registration is requested is not a Plan or a Person who is directly or
indirectly purchasing such Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor,
A-5-3
<PAGE>
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-5-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-5-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-5-6
<PAGE>
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
CLASS D MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class D
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $__________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D Certificates
February 1, 1999 as of the Issue Date: $86,731,000
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [CUSIP No. 361849 EW 8/
ISIN No. US361849EW82]
Certificate No. D-
</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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B
AND CLASS C CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN
THE AGREEMENT REFERRED TO HEREIN.
A-6-1
<PAGE>
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $720 OF OID PER
$1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 7.32%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $1.19 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL
BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J 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 D Certificate (obtained by dividing the
principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (as to the Class D
Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class D
A-6-2
<PAGE>
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on any Class D Certificate will be made
by the Trustee by wire transfer in immediately available funds to the account of
the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five Business Days prior to the Record
Date for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class D Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Any purchaser of a Class D Certificate will be deemed to have represented
by such purchase that either (a) such purchaser is not an employee benefit plan
or other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan") and is not purchasing such
Certificate by or on behalf of, or with "plan assets" of, any Plan or (b) the
purchase of any such Certificate by or on behalf of, or with "plan assets" of,
any Plan is permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and will not
subject the Depositor, the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, and the following conditions are met: (a)
the source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in PTCE 95-60) and (b) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date
of the acquisition of such Certificate and the condition set forth in Section
I(a) of PTCE 95-60 will be satisfied throughout the prospective transferees'
holding of such Certificate. The Trustee may require that any prospective
transferee of a Class D Certificate that is held as a Definitive Certificate,
provide such certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee
A-6-3
<PAGE>
or the Person in whose name such registration is requested is not a Plan or a
Person who is directly or indirectly purchasing such Certificate on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
D Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-6-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-6-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by __________________________, the assignee
named above, or __________________________, as its agent.
A-6-6
<PAGE>
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
CLASS E MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class E
Weighted Average Net Mortgage Rate Certificate as of the Issue Date: $__________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class E Certificates
February 1, 1999 as of the Issue Date: $20,015,000
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [CUSIP No. 361849 EX 6/
ISIN No. US361849EX65]
Certificate No. E-
</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 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,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
A-7-1
<PAGE>
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $798 OF OID PER
$1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 8.29%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $1.26 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J 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, and Norwest Bank Minnesota, National
Association, 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 (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
A-7-2
<PAGE>
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class E Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well), or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class E Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Any purchaser of a Class E Certificate will be deemed to have represented
by such purchase that either (a) such purchaser is not an employee benefit plan
or other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
ERISA or Section 4975 of the Code (each, a "Plan") and is not purchasing such
Certificate by or on behalf of, or with "plan assets" of, any Plan or (b) the
purchase of any such Certificate by or on behalf of, or with "plan assets" of,
any Plan is permissible under applicable law, will not result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code, and will not
subject the Depositor, the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, and the following conditions are met: (a)
the source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in PTCE 95-60) and (b) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date
of the acquisition of such Certificate and the condition set forth in Section
I(a) of PTCE 95-60 will be satisfied throughout the prospective transferees'
holding of such Certificate. The Trustee may require that any prospective
transferee of a Class E Certificate that is held as a Definitive Certificate,
provide such certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee
A-7-3
<PAGE>
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, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-7-4
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-7-5
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-7-6
<PAGE>
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
CLASS F MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class F
Lesser of 6.020% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Class Principal Balance of all the Class F Certificates
Date of Pooling and Servicing Agreement: as of the Issue Date: $83,396,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [144A CUSIP No. 361849 EY4/
GMAC Commercial Mortgage Corporation IAI CUSIP No. 361849 FH0]
Certificate No. F-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
A-8-1
<PAGE>
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $976 OF OID PER
$1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 10.43%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $1.23 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE
SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCES OF THE CLASS G, CLASS H, CLASS J 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 ________________________ is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (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
A-8-2
<PAGE>
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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class F Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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 F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under
A-8-3
<PAGE>
the Agreement to permit the transfer of any Class F Certificate without
registration or qualification. Any Class F Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class F Certificate agrees
to, indemnify the Depositor, the Trustee and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of a Class F Certificate or any interest therein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or Section 4975 of the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class F Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, unless the prospective transferee provides
the Trustee, the Master Servicer and the Depositor with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the Trustee,
the Master Servicer and the Depositor that such transfer is permissible under
applicable law, will not constitute or result in a violation of Section 406 of
ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement. In lieu of such opinion of counsel, the prospective transferee
of a Class F Certificate may provide a certification of facts substantially to
the effect that the purchase of such Certificate by or on behalf of, or with
assets of, any Plan is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Depositor, the Trustee or the Master Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds used to purchase such
Certificate is an "insurance company general account" (as such term is defined
in United States Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60) and (b) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied as of the date of the acquisition of such Certificate
and the condition set forth in Section I(a) of PTCE 95-60 will be satisfied
throughout the prospective transferees' holding of such Certificate.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
F Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any
A-8-4
<PAGE>
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-8-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-8-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-8-7
<PAGE>
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
CLASS G MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate:
Lesser of 6.020% per annum or the Weighted
Average Net Mortgage Rate Certificate Principal Balance of this Class G
Certificate as of the Issue Date: $__________
Date of Pooling and Servicing Agreement:
February 1, 1999 Class Principal Balance of all the Class G Certificates
as of the Issue Date: $13,343,000
Cut-off Date: With respect to any Mortgage Loan, the
Due Date for such Mortgage Loan in February 1999 Aggregate unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Issue Date: February 9, 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
First Distribution Date: March 15, 1999
Trustee: Norwest Bank Minnesota, National
Master Servicer and Special Servicer: Association
GMAC Commercial Mortgage Corporation
[144A CUSIP No. 361849 EZ1/
Certificate No. G- IAI CUSIP No. 361849 FJ6]
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF THE SAME SERIES, AS AND TO
THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
A-9-1
<PAGE>
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $1,243 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
11.27% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.18 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS H, CLASS J 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 _________________________ is the registered owner of
the Percentage Interest evidenced by this Class G Certificate (obtained by
dividing the principal balance of this Class G Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class G Certificates (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (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
A-9-2
<PAGE>
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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class G
Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class G Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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 G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under
A-9-3
<PAGE>
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 Section 4975 of 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 is permissible under
applicable law, will not constitute or result in a violation of Section 406 of
ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement. In lieu of such opinion of counsel, the prospective transferee
of a Class G Certificate may provide a certification of facts substantially to
the effect that the purchase of such Certificate by or on behalf of, or with
assets of, any Plan is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Depositor, the Trustee or the Master Servicer to
any obligation in addition to those undertaken in the Agreement, and the
following conditions are met: (a) the source of funds used to purchase such
Certificate is an "insurance company general account" (as such term is defined
in United States Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60) and (b) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied as of the date of the acquisition of such Certificates
and the condition set forth in Section I(a) of PTCE 95-60 will be satisfied
throughout the prospective transferees' holding of such Certificate.
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
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any
A-9-4
<PAGE>
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-9-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-9-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-9-7
<PAGE>
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
CLASS H MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class H
Lesser of 6.020% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Class Principal Balance of all the Class H Certificates
Date of Pooling and Servicing Agreement: as of the Issue Date: $26,686,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [144A CUSIP No. 361849 FA5/
GMAC Commercial Mortgage Corporation IAI CUSIP No. 361849 FK3]
Certificate No. H-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES OF THE SAME SERIES,
AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
A-10-1
<PAGE>
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $1,328 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
12.79% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.18 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS J 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, and Norwest Bank Minnesota, National
Association, 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 (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class H Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such
A-10-2
<PAGE>
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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class H Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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,
A-10-3
<PAGE>
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 Section 4975 of the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class H Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, unless the prospective transferee provides
the Trustee, the Master Servicer and the Depositor with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the Trustee,
the Master Servicer and the Depositor that such transfer is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Depositor, the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Agreement. In lieu of such opinion of
counsel, the prospective transferee of a Class H Certificate may provide a
certification of facts substantially to the effect that the purchase of such
Certificate by or on behalf of, or with assets of, any Plan is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code, will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition to
those undertaken in the Agreement, and the following conditions are met (a) the
source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in United States Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60) and (b) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date
of the acquisition of such Certificate and the condition set forth in Section
I(a) of PTCE 95-60 will be satisfied throughout the prospective transferees'
holding of such Certificate.
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
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
A-10-4
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-10-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-10-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-10-7
<PAGE>
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
CLASS J MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class J
Lesser of 6.020% per annum or the Weighted Certificate as of the Issue Date: $__________
Average Net Mortgage Rate
Class Principal Balance of all the Class J Certificates
Date of Pooling and Servicing Agreement: as of the Issue Date: $20,015,000
February 1, 1999
Aggregate unpaid principal balance of the Mortgage
Cut-off Date: With respect to any Mortgage Loan, the Pool as of the Cut-off Date, after deducting payments
Due Date for such Mortgage Loan in February 1999 of principal due on or before such date, whether or
not received: $1,334,328,273
Issue Date: February 9, 1999
Trustee: Norwest Bank Minnesota, National
First Distribution Date: March 15, 1999 Association
Master Servicer and Special Servicer: [144A CUSIP No. 361849 FB3/
GMAC Commercial Mortgage Corporation IAI CUSIP No. 361849 FL1]
Certificate No. J-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
A-11-1
<PAGE>
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $1,425 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
14.92% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.16 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND
CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K 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 J Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class J Certificates (their "Class Principal Balance") as of the Issue Date) in
that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class J Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no less than five Business Days prior to
the Record Date for such distribution
A-11-2
<PAGE>
(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 1999-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 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class J Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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,
A-11-3
<PAGE>
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 Section 4975 of 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 is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Depositor, the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Agreement. In lieu of such opinion of
counsel, the prospective transferee of a Class J Certificate may provide a
certification of facts substantially to the effect that the purchase of such
Certificate by or on behalf of, or with assets of, any Plan is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code, will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition to
those undertaken in the Agreement, and the following conditions are met (a) the
source of funds used to purchase such Certificate is an "insurance company
general account" (as such term is defined in United States Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60) and (b) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date
of the acquisition of such Certificate and the condition set forth in Section
I(a) of PTCE 95-60 will be satisfied throughout the prospective transferees'
holding of such Certificate.
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
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
A-11-4
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-11-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within-mentioned
Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-11-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-11-7
<PAGE>
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
CLASS K[-1][-2] MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Class K[-1][-2]
Lesser of 6.020% per annum or the Weighted Certificate as of the Issue Date: $______________
Average Net Mortgage Rate
Class Principal Balance of all the Class K[-1][-2]
Date of Pooling and Servicing Agreement: Certificates as of the Issue Date:
February 1, 1999 $[22,517,455][7,505,818]
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [144A CUSIP No. [361849 FC1][361849 FD9]/
IAI CUSIP No. [361849 FM9][361849 FN7]
Certificate No. K[-1][-2]-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, [AND] CLASS J [AND CLASS
K-1] CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
A-12-1
<PAGE>
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES SET
FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 FEBRUARY 9, 1999. 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 AGREEMENT REFERRED TO HEREIN) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[1,730][1,925]
OF OID PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY
IS [25.31][24.59]% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $[1.05][1.02] 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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, [AND] CLASS J [AND CLASS K-1] CERTIFICATES OF THE SAME SERIES.
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[-1][-2] Certificate (obtained
by dividing the principal balance of this Class K[-1][-2] Certificate (its
"Certificate Principal Balance") as of the Issue Date by the aggregate principal
balance of all the Class K[-1][-2] Certificates (their "Class Principal
Balance") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class K[-1][-2] Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among GMAC Commercial Mortgage Securities, Inc., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
and Norwest Bank Minnesota, National Association, 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 (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[-1][-2] Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class K[-1][-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
A-12-2
<PAGE>
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 1999-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[-1][-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
K[-1][-2] Certificates are exchangeable for new Class K[-1][-2] Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class K[-1][-2] Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K[-1][-2] Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class K[-1][-2]
Certificate (other than a transfer thereof by the Depositor or any Affiliate of
the Depositor) is to be made without registration under the Securities Act, then
the Trustee shall require, in order to assure compliance with such laws, receipt
by it and the Depositor of: (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[-1][-2] Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class K[-1][-2] Certificate without registration or
qualification. Any Class K[-1][-2] Certificateholder desiring to effect such a
transfer shall, and by the acceptance of its Class K[-1][-2] Certificate agrees
to, indemnify the Depositor, the Trustee and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
A-12-3
<PAGE>
No transfer of a Class K[-1][-2] 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 Section 4975 of the
Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing
the Class K[-1][-2] Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee provides the Trustee, the Master Servicer and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee, the Master Servicer and the Depositor that such
transfer is permissible under applicable law, will not constitute or result in
any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Depositor, the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement. In
lieu of such opinion of counsel, the prospective transferee of a Class K[-1][-2]
Certificate may provide a certification of facts substantially to the effect
that the purchase of such Certificate by or on behalf of, or with assets of, any
Plan is permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will
not subject the Depositor, the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, and the following conditions
are met (a) the source of funds used to purchase such Certificate is an
"insurance company general account" (as such term is defined in United States
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60) and
(b) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied as of the date of the acquisition of such Certificate and the
condition set forth in Section I(a) of PTCE 95-60 will be satisfied throughout
the prospective transferees' holding of such Certificate.
No service charge will be imposed for any registration of transfer or
exchange of Class K[-1][-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 K[-1][-2] Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of designated portions of the Trust Fund as a REMIC,
without the consent of the Holders of any of the Certificates.
A-12-4
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-12-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K[-1][-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-12-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-12-7
<PAGE>
EXHIBIT A-13
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
February 1, 1999 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [144A CUSIP No. 361849 FE7/
IAI CUSIP No. 361849 FP2]
Certificate No. R-I-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
A-13-1
<PAGE>
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that ______________________ is the registered owner of the
Percentage Interest evidenced by this Class R-I Certificate (as specified above)
in that certain beneficial ownership interest evidenced by all the Class R-I
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class R-I
Certificate will be made by the Trustee by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
A-13-2
<PAGE>
writing, and thereupon one or more new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-I Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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 Section 4975 of the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class R-I Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Trustee, the Master Servicer and the Depositor with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee, the Master Servicer and the Depositor that such transfer is permissible
under applicable law, will not constitute or result in a violation of Section
406 of ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement.
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
A-13-3
<PAGE>
Transferee is not a Permitted Transferee or is not a United States Person, the
Trustee shall not register the Transfer of an Ownership Interest in this
Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
the following: (a) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
modification of, addition to or elimination of such provisions will not cause
either REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-I
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-I Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) any electing large partnership under
Section 775 of the Code and/or any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R-I Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Class R-I Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury Regulations), an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-I Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
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,
A-13-4
<PAGE>
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
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.
A-13-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-13-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-13-7
<PAGE>
EXHIBIT A-14
FORM OF CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
February 1, 1999 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [144A CUSIP No. 361849 FF4/
IAI CUSIP No. 361849 FQ0]
Certificate No. R-II-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
A-14-1
<PAGE>
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Class R-II Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-II Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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-II Certificates, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class R-II Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class R-II Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
A-14-2
<PAGE>
writing, and thereupon one or more new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-II Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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 Section 4975 of the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class R-II Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Trustee, the Master Servicer and the Depositor with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee, the Master Servicer and the Depositor that such transfer is permissible
under applicable law, will not constitute or result in a violation of Section
406 of ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement.
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
A-14-3
<PAGE>
Transferee is not a Permitted Transferee or is not a United States Person, the
Trustee shall not register the Transfer of an Ownership Interest in this
Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
the following: (a) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
modification of, addition to or elimination of such provisions will not cause
either REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-II
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-II Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) any electing large partnership under
Section 775 of the Code and/or any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R-II Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Class R-II Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury Regulations), an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
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,
A-14-4
<PAGE>
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-14-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-14-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-14-7
<PAGE>
EXHIBIT A-15
FORM OF CLASS R-III CERTIFICATE
CLASS R-III MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-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>
<S> <C>
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
February 1, 1999 the related Class: 100%
Cut-off Date: With respect to any Mortgage Loan, the Aggregate unpaid principal balance of the Mortgage
Due Date for such Mortgage Loan in February 1999 Pool as of the Cut-off Date, after deducting payments
of principal due on or before such date, whether or
Issue Date: February 9, 1999 not received: $1,334,328,273
First Distribution Date: March 15, 1999 Trustee: Norwest Bank Minnesota, National
Association
Master Servicer and Special Servicer:
GMAC Commercial Mortgage Corporation [144A CUSIP No. 361849 FG2/
IAI CUSIP No. 361849 FR8]
Certificate No. R-III-
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GMAC
COMMERCIAL MORTGAGE SECURITIES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION,
Norwest Bank Minnesota, National Association OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J AND CLASS K
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
A-15-1
<PAGE>
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES SET FORTH IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT. IF ANY PERSON BECOMES
THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _______________________ is the registered owner of the
Percentage Interest evidenced by this Class R-III Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-III Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among GMAC Commercial
Mortgage Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation,
as Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association, 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 1999-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-III Certificates are exchangeable for new
Class R-III Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
A-15-2
<PAGE>
writing, and thereupon one or more new Class R-III Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer of any Class R-III Certificate
(other than a transfer thereof by the Depositor or any Affiliate of the
Depositor) is to be made without registration under the Securities Act, then the
Trustee shall require, in order to assure compliance with such laws, receipt by
it and the Depositor of: (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 Section 4975 of the Code
(each, a "Plan") or (B) any Person who is directly or indirectly purchasing the
Class R-III Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Trustee, the Master Servicer and the Depositor with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee, the Master Servicer and the Depositor that such transfer is permissible
under applicable law, will not constitute or result in a violation of Section
406 of ERISA or Section 4975 of the Code and will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement.
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
A-15-3
<PAGE>
Transferee is not a Permitted Transferee or is not a United States Person, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
the following: (a) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
modification of, addition to or elimination of such provisions will not cause
either REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-III
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-III Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) any electing large partnership under
Section 775 of the Code and/or any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R-III Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Class R-III Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in Treasury Regulations), an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the trust.
No service charge will be imposed for any registration of transfer or
exchange of Class R-III Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
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,
A-15-4
<PAGE>
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and any REO Properties remaining in the Trust
Fund. The Agreement permits, but does not require, the Depositor or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 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 66 2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-15-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:
------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By:
------------------------------------------
Authorized Officer
A-15-6
<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 Pass-Through Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
_____________________________________________________________ for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
_________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or _________________________, as its agent.
A-15-7
<PAGE>
EXHIBIT B-1
FORM I OF TRANSFEROR CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS) -
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999-C1, [Class F] [Class G]
[Class H] [Class J] [Class K] [Class R-I] [Class R-II] [Class
R-III], [having an initial principal balance as of the Cut-off
Date of $ ] [evidencing a % Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to _________________________ (the
"Transferee") of the captioned Certificates (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of February 1, 1999, among GMAC Commercial Mortgage
Securities, Inc. as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, and Norwest Bank Minnesota, National Association,
as Trustee. All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Certificates with the
full right to transfer the Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificates, any
interest in the Certificates or any other similar security from any person
in any manner, (c) otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar
security with any person in any manner, (d) made any general solicitation
with respect to the Certificates, any interest in the Certificates or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to the Certificates, any
interest in the Certificates or any other similar security, which (in the
case of any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution under the Securities Act of 1933 (the "Securities
Act"), or would render the disposition of the Certificates a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of the Certificates pursuant to the
Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is either (a) a
"qualified institutional buyer" (as that term is defined in Rule 144A
("Rule 144A") under the Securities Act) purchasing for its own account or
(b) either (i) an "accredited investor" within the meaning of paragraph
(1), (2), (3) or (7) of Rule 501(a) under the Securities Act or (ii) an
entity in which all the equity owners are "accredited investors" 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.
4. Unless the Transferee is either (a) an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or
(b) an entity in which all the equity owners are "accredited investors"
B-1-1
<PAGE>
within the meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under
the Securities Act 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.
5. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement,
and (d) any credit enhancement mechanism associated with the Certificates,
that the Transferee has requested.
Very truly yours,
----------------------------------
(Transferor)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-1-2
<PAGE>
EXHIBIT B-2
FORM I OF TRANSFEREE CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS) -
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999-C1, [Class F] [Class G]
[Class H] [Class J] [Class K] [Class R-I] [Class R-II] [Class
R-III] [having an initial principal balance as of the Cut-off
Date of $ ] [evidencing a % Percentage Interest in such
Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to _________________________ (the
"Transferee") of the captioned Certificates (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of February 1, 1999 among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and Special Servicer, and Norwest Bank Minnesota, National Association,
as Trustee. All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The Transferee
is acquiring the Certificates for its own account or for the account of a
qualified institutional buyer, and understands that such Certificates may
be resold, pledged or transferred only (a) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A,
or (b) pursuant to another exemption from registration under the Securities
Act.
2. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature, performance
and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement, and (d) any credit enhancement mechanism associated with the
Certificates, that it has requested.
3. If the Transferee proposes that the Certificates be registered in
the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
4. If any Certificates are held by the Transferor in definitive form
(as opposed to Private Book-Entry Certificates registered in the name of
Cede & Co.) the Transferee hereby certifies to the Trustee, the Depositor
and the Master Servicer that such transfer is permissible under applicable
law, and either (a) such Transferee is not an "employee benefit plan"
within the meaning of Section 3(3) of ERISA, a "plan" within the meaning of
Section 4975 of the Code, or any entity deemed to hold "plan assets" within
the meaning of the Regulation published at 29 C.F.R. 2510.3-101, (b) will
not constitute or result in any non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject the
Depositor, the Trustee or the Master Servicer to any
B-2-1
<PAGE>
obligation in addition to those undertaken in the Agreement and the
Transferee has attached hereto an opinion of counsel to such effect, or (c)
in the case of Class F, Class G, Class H, Class J or Class K Certificates,
such transfer will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code, will not subject the
Depositor, the Trustee or the Master Servicer to any obligation in addition
to those undertaken in the Agreement, and the following condition are met:
(i) the source of funds used to purchase the Certificate is an "insurance
company general account" (as such term is defined in United States
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60)
and (ii) the conditions set forth in Sections I and III of PTCE 95-60 will
apply to the Transferee's purchase and holding of the Certificate.
Very truly yours,
----------------------------------
(Transferor)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-2-2
<PAGE>
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:
----------------------------
B-2-3
<PAGE>
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 Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$__________.
(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(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 which is subject to supervision
by the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
- ----------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
B-2-4
<PAGE>
____State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
____Other. (Please supply a brief description of the entity and a cross
reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1).
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a majority
owned, consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes _____ No _____
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
B-2-5
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Print Name of Transferee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Date:
-----------------------------
B-2-6
<PAGE>
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 Certificates (the "Transferee") or, if the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because the Transferee is part of a Family
of Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____The Transferee is part of a Family of Investment Companies which owned
in the aggregate $__________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the Certificates only for the
Transferee's own account?
Yes _____ No _____
B-2-7
<PAGE>
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
-----------------------------------
Print Name of Transferee or Adviser
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Date:
------------------------------
B-2-8
<PAGE>
EXHIBIT B-3
FORM II OF TRANSFEREE CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS) -
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999-C1, [Class F] [Class G]
[Class H] [Class J] [Class K] [Class R-I] [Class R-II] [Class
R-III], [having an initial principal balance as of the Cut-off
Date of $__________] [evidencing a _____% Percentage Interest
in such Class].
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to _________________________ (the
"Transferee") of the captioned Certificates (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of February 1, 1999, among GMAC Commercial Mortgage
Securities, Inc., as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. All terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Certificates 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 Certificates 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
Certificates and (c) neither the Certificates 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 transactions that are exempt from such registration and
qualification requirements and the Trustee and the Depositor have received:
(A) 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
(B) in all other cases, 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,
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 registration under the Securities Act.
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:
B-3-1
<PAGE>
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 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
SECTION 4975 OF 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 "PLAN
ASSETS" OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
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 either (i) an "accredited investor" within the meaning
of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or
(ii) an entity in which all the equity owners are "accredited investors" 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. The Transferee hereby certifies to the Trustee, the Depositor and the
Master Servicer that such transfer is permissible under applicable law, and
either (a) such Transferee is not an "employee benefit plan" within the meaning
of Section 3(3) of ERISA, a "plan" within the meaning of Section 4975 of the
Code, or any entity deemed to hold "plan assets" within the meaning of the
Regulation published at 29 C.F.R. 2510.3-101, (b) will not constitute or result
in any non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and will not subject the Depositor, the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement and
the Transferee has attached hereto an opinion of counsel to such effect, or (c)
in the case of Class F, Class G, Class H, Class J or Class K Certificates, such
transfer will not constitute or result in any non-exempt prohibited transaction
under ERISA or Section 4975 of the Code, will not subject the Depositor, the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, and the following condition are met: (i) the source of funds
used to purchase the Certificate is an "insurance company general account" (as
such term is defined in United States Department of Labor Prohibited Transaction
Class Exemption ("PTCE")
B-3-2
<PAGE>
95-60) and (ii) the conditions set forth in Sections I and III of PTCE 95-60
will apply to the Transferee's purchase and holding of the Certificate.
Very truly yours,
----------------------------------
Transferee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-3-3
<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 1999-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 an electing large partnership
under section 775 of the Code, 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, with respect to transfers to electing large
partnerships, on such partnership) or, if such transfer is through an agent
(which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person (other than transfers with
respect to electing large partnerships) 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.)
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
C-1-1
<PAGE>
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 (except, in the
case of a partnership, to the extent provided in Treasury Regulations), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust for which a court within the United States is able to exercise primary
supervision over its administration and for which one or more United States
Persons have the authority to control all substantial decisions of the trust.
13. The Transferee is not acquiring the Residual Certificates with "plan
assets" of any plan subject to Title I of ERISA or Section 4975 of the Code.
C-1-2
<PAGE>
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:_______________________________
Title:______________________________
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named _________________________
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this _____ day of _________________________.
____________________________________
NOTARY PUBLIC
COUNTY OF ________________________
STATE OF _________________________
My Commission expires the _____ day
of _________________________, 19__.
C-1-3
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS) -
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1999-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 February 1, 1999 (the "Pooling and
Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc., as
Depositor, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulation Section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found
no significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Certificates may not be
respected for United States income tax purposes (and the Transferor may
continue to be liable for United States income taxes associated therewith)
unless the Transferor has conducted such an investigation.
Very truly yours,
__________________________________
(Transferor)
By:_______________________________
Name:_____________________________
Title:____________________________
C-2-1
<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.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
__________________________________
Name
Title
Date
D-1
<PAGE>
EXHIBIT E
FORM OF UCC-1
E-1
<PAGE>
SCHEDULE 1 TO UCC-1 FINANCING STATEMENT
All right (including the power to convey title thereto), title and interest
of the Debtor, including any security interest therein for the benefit of the
Debtor, in and to the Trust Fund created pursuant to the Pooling and Servicing
Agreement, dated as of February 1, 1999, among the Debtor as Depositor, the
Secured Party as Trustee* and GMAC Commercial Mortgage Corporation as Master
Servicer and Special Servicer with respect to Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Pooling and Servicing Agreement (Series
1999-C1), including:
(1) the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto;
(2) all principal and interest received or receivable with respect to
the Mortgage Loans (other than principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior
to the Cut-off Date);
(3) all amounts held from time to time in the Certificate Account, the
Interest Reserve Account, the REO Account and the Distribution Account;
(4) all of the Debtor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans;
(5) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(6) any and all income, payments, proceeds and products of any of the
foregoing.
Capitalized terms used herein, but not defined, shall have the respective
meanings assigned to such terms in the Pooling and Servicing Agreement (Series
1999-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.
*Not in its individual capacity, but solely as Trustee for the benefit of
the Certificateholders pursuant to the Pooling and Servicing Agreement (Series
1999-C1).
E-2
<PAGE>
MORTGAGE LOAN SCHEDULE TO UCC-1 FINANCING STATEMENT
E-3
<PAGE>
EXHIBIT F
Methodology to Normalize Net Operating Income and Debt Service Coverage
o GMAC Commercial Mortgage Corporation ("GMACCM") applies the methodology
presented below to arrive at a servicer adjusted or "Normalized" Net
Operating Income ("NOI"). The items described below highlight some of the
major categories requiring adjustment. There may, however, be others, and
GMACCM will use its market knowledge and discretion in making and
sufficiently footnoting the necessary adjustments.
o GMACCM chooses to use the actual management fee stated in the financial
statement.
o Where they are clearly identifiable, GMACCM will remove any capital expense
from any above the line categories (such as extraordinary repairs and
maintenance) and put them below the line in the capital expense comment
section.
o Replacement reserves, tenant improvement and leasing commission reserves
will be treated as above the line expenses. A determination will be made
whether there have been credits for the disbursements from a reserve and
that expenses are not overstated due to exclusion of credits.
o Property taxes should be the annual amount due, excluding any delinquent
taxes or credits from prior years which would cause the number to be higher
or lower. The amount for property taxes will be adjusted if the period
under analysis is less than one year.
o GMAC Commercial Mortgage will exclude non-recurring, extraordinary income.
For example, a tax refund, lease buyout or income received for a period
other than the year in question should be adjusted. If past due rent for a
prior year was paid and recorded in the current year, GMACCM would back it
out and footnote it accordingly. Care will be used when reflecting
percentage/overage rents to ensure that it relates to the appropriate
period and that the numbers are supported by tenant sales information.
o GMAC Commercial Mortgage will remove any items not pertaining to the
operation of the property such as, fees for closing the loan restructure, a
distribution to owners or a charitable contribution.
o When necessary, income and expenses will be analyzed by looking at
variances by category. Unusual income and expense items will be researched.
If there are significant variances, inquiries to the borrower will be made.
Appropriate adjustments will be made and footnotes provided to clearly
explain the situation.
o The debt service should be an actual amount the borrower paid per the
servicing records for the period associated with the operating statement.
If GMACCM does not have a full year of payments, it will use the principal
and interest constant in the case of a fixed rate loan and, in the case of
an adjustable rate loan, will estimate a full year amount from the payment
history information available.
F-1
<PAGE>
EXHIBIT G
Form of Distribution Date Statement
G-1
<PAGE>
EXHIBIT H
Form of Master Servicer Report
H-1
<PAGE>
EXHIBIT I
Certain Reports
I-1
<PAGE>
EXHIBIT J
Form of CSSA Periodic Loan File
J-1
<PAGE>
EXHIBIT K
FORM OF INVESTOR CERTIFICATION
[Date]
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS)
GMAC Commercial Mortgage Securities, Inc., Series 1999-C1
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of February 1, 1999 (the "Agreement"), by and among GMAC Commercial
Mortgage Securities, Inc. as Depositor, GMAC Commercial Mortgage Corporation as
Master Servicer and Special Servicer, and Norwest Bank Minnesota, National
Association as Trustee (the "Trustee"), with respect to the GMAC Commercial
Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 1999-C1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class ____ Certificates.
2. The undersigned is requesting a password pursuant to Section 4.02 of
the Agreement for access to certain information (the "Information") on
the Trustee's website and/or is requesting the information identified
on the schedule attached hereto (also, the "Information") pursuant to
Section ___ of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, or the password in connection therewith, the undersigned
will keep the Information confidential (except from such outside
persons as are assisting it in making an evaluation in connection with
purchasing the related Certificates, from its accountants and
attorneys, and otherwise from such governmental or banking authorities
or agencies to which the undersigned is subject), and such Information
will not, without the prior written consent of the Trustee, be
otherwise disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee and the Trust Fund for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
---------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
---------------------------------
Title:
---------------------------------
K-1
<PAGE>
Schedule I
Mortgage Loan Schedule
Schedule I-1
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC4240 AMD Corporate Headquarters 7.780 0.1263 68,250,000 68,211,566 119
GMAC1950 Meringoff & Shidler NY Portfolio 6.950 0.0638 62,950,000 62,804,289 117
GMAC1950-A 12 West 21st Street Office Building - - - - -
GMAC1950-B 12-16 West 27th Street Office Building - - - - -
GMAC1950-C West 26th Street Office Building - - - - -
GMAC1950-D 400 Eighth Avenue Office Building - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1950-E 401 Park Avenue South Office Building - - - - -
GMAC1950-F 462-68 Broadway Office Building - - - - -
GMAC1950-G 681 Lexington Office Building - - - - -
GMAC1950-H 686 Lexington Office Building - - - - -
GMAC1950-I 88 University Place Office Building - - - - -
GMAC4690 Hudson Valley Mall 7.680 0.1263 58,600,000 58,566,075 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4420 The Mills Building & 333 Pine Street 7.700 0.1263 36,000,000 36,000,000 119
GMAC1060 211 W. Fort Street 6.970 0.1263 32,000,000 31,874,231 175
GMAC2940 Uniprop Manufactured Housing Comm. Income Fund II 6.370 0.0413 25,710,000 25,595,401 121
GMAC2940-A West Valley - - - - -
GMAC2940-B El Adobe - - - - -
GMAC2940-C Camelot Manor - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2940-D Stonegate - - - - -
GMAC2940-E Ardmor Village - - - - -
GMAC2940-F Dutch Hills - - - - -
GMAC2070 Monterra & Chandler's Reach Apartments 5.620 0.1263 25,500,000 25,500,000 116
GMAC2070-A Monterra Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2070-B Chandler's Reach Apartments - - - - -
GMAC1710 Cendant Corp. 7.890 0.1263 24,000,000 23,916,577 127
GMAC4300 Camden at Palmer Ranch 7.350 0.1263 22,500,000 22,452,347 117
GMAC4560 Villas at Rancho Del Norte 7.350 0.1263 21,750,000 21,736,236 119
GMAC3020 Victoria Woods Apartments 6.300 0.1263 20,400,000 20,328,537 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4570 Balmoral Village Apartments 7.350 0.1263 18,500,000 18,488,292 119
GMAC4140 Schoettler Village Apartments 7.250 0.1263 18,500,000 18,475,855 118
GMAC2650 Skyview Living Centers 7.210 0.1263 17,953,000 17,788,077 115
GMAC2650-A Skyview Living Center of Stamford - - - - -
GMAC2650-B Skyview Living Center of Lewisville - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2650-C Skyview Living Center of Denton - - - - -
GMAC2650-D Skyview Living Center of Waco - - - - -
GMAC1470 Delta Pointe Apartments 6.200 0.1263 17,520,000 17,520,000 116
GMAC3310 Round Hill Square Shopping Center 6.800 0.1263 17,350,000 17,337,349 119
GMAC1160 AmeriPark Assisted Living Facilities 7.110 0.1263 16,920,000 16,801,616 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1160-A Sequoia Village - - - - -
GMAC1160-B The Village - - - - -
GMAC1160-C Twin Cities Village - - - - -
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC4240 1/10/09 10 495,671 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
GMAC1950 11/10/08 10 420,944 Balloon Lock/27_Defeasance/87_0%/6 - 0.0638
GMAC1950-A - - - - - - -
GMAC1950-B - - - - - - -
GMAC1950-C - - - - - - -
GMAC1950-D - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1950-E - - - - - - -
GMAC1950-F - - - - - - -
GMAC1950-G - - - - - - -
GMAC1950-H - - - - - - -
GMAC1950-I - - - - - - -
GMAC4690 1/10/09 10 421,467 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4420 1/10/09 10 256,666 Interest Only, Then Amortizing Lock/25_Defeasance/92_0%/3 - 0.1263
GMAC1060 9/10/13 10 214,425 Balloon Lock/29_Defeasance/145_0%/6 - 0.1263
GMAC2940 3/10/09 10 161,868 Hyperamortizing Lock/29_Defeasance/88_0%/9 - 0.0413
GMAC2940-A - - - - - - -
GMAC2940-B - - - - - - -
GMAC2940-C - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2940-D - - - - - - -
GMAC2940-E - - - - - - -
GMAC2940-F - - - - - - -
GMAC2070 10/10/08 10 148,025 Interest Only, Then Amortizing Lock/28_Defeasance/92 - 0.1263
GMAC2070-A - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2070-B - - - - - - -
GMAC1710 9/10/09 10 174,267 Balloon > of YM or 1% UPB/126_0%/6 - 0.1263
GMAC4300 11/5/08 5 156,649 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC4560 1/10/09 10 151,424 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC3020 10/10/08 10 127,497 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4570 1/5/09 5 128,797 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC4140 12/10/08 10 127,531 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC2650 9/1/08 1 142,596 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC2650-A - - - - - - -
GMAC2650-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2650-C - - - - - - -
GMAC2650-D - - - - - - -
GMAC1470 10/10/08 10 108,325 Interest Only, Then Amortizing Lock/28_Defeasance/92 - 0.1263
GMAC3310 1/10/09 10 114,245 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC1160 8/1/08 1 121,909 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1160-A - - - - - - -
GMAC1160-B - - - - - - -
GMAC1160-C - - - - - - -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC3730 All Space Self Storage 7.490 0.1263 16,000,000 15,990,246 179
GMAC3730-A All Space - Costa Mesa - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3730-B All Space - San Marcos - - - - -
GMAC3730-C All Space - Garden Grove - - - - -
GMAC3730-D All Space - Huntington Beach - - - - -
GMAC2500 Robertson Center 6.250 0.0613 16,000,000 15,956,938 117
GMAC4160 Hathaway Court Apartments 7.410 0.1263 15,440,000 15,430,383 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2080 One Montgomery Plaza 7.490 0.1263 14,800,000 14,781,872 142
GMAC3980 Windward Concourse 6.875 0.1263 13,500,000 13,490,340 119
GMAC4580 Westchester Shopping Center 7.170 0.1263 13,500,000 13,439,862 78
GMAC3180 Arbor Trail Apartments 6.510 0.1263 12,400,000 12,400,000 116
GMAC2380 Promenade at Red Cliff 6.500 0.1263 11,000,000 10,952,273 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2470 The River Inn 7.000 0.1263 10,100,000 10,064,340 141
GMAC1690 Heritage Place Office Tower 7.250 0.1263 10,000,000 9,974,333 118
GMAC1360 Colonial Trace & Summerfield Apartments 7.000 0.1263 10,000,000 9,960,947 115
GMAC1360-A Colonial Trace Apartments - - - - -
GMAC1360-B Summerfield Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3490 Courtyard by Marriott - Irving 7.000 0.1263 9,950,000 9,914,870 117
GMAC1600 Foxfire I & II Apartments 6.750 0.1263 9,480,000 9,457,042 117
GMAC1600-A Foxfire I & II Apartments - - - - -
GMAC1600-B Spanish Walk Apartments - - - - -
GMAC3700 3780-3858 Nostrand Avenue 7.650 0.1263 9,000,000 8,994,747 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1350 Colchester Facility 6.875 0.1263 9,000,000 8,972,241 116
GMAC2450 The Gardens of Richardson 7.110 0.1263 8,800,000 8,748,282 115
GMAC4480 Pontiac Place 7.250 0.1263 8,700,000 8,661,924 114
GMAC2530 Roseville-Sutter Medical Office Building 7.200 0.1263 8,600,000 8,572,652 140
GMAC2720 Staples & Linens 'N Things 6.750 0.1263 8,100,000 8,087,993 190
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1170 Applewood on the Green Apartments 6.550 0.1263 8,000,000 7,973,469 116
GMAC2880 Union Foods Industrial Building 6.880 0.1263 7,800,000 7,768,752 115
GMAC1100 401-415 Santa Monica Boulevard 6.430 0.1263 7,550,000 7,523,975 116
GMAC2090 Mountain View Corp. Center 7.030 0.1263 7,500,000 7,500,000 115
GMAC3810 Coronado Plaza 6.900 0.1263 7,500,000 7,494,667 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3340 Willowbend Apartments 6.670 0.1263 7,425,000 7,413,774 118
GMAC2930 Vista Del Sol - Uniprop NCII 6.260 0.0413 7,400,000 7,373,851 122
GMAC4070 Alpine Lake Apartments 7.150 0.1263 7,200,000 7,195,198 119
GMAC4190 Valley River Court Apartments 7.260 0.1263 7,025,000 7,020,447 119
GMAC3150 1347 Partnership 6.680 0.1263 7,000,000 6,989,442 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4030 U.S. Justice Building 7.250 0.1263 6,750,000 6,745,614 119
GMAC2920 Valley View - Uniprop NCII 6.060 0.0413 6,750,000 6,725,097 122
GMAC1530 Hacienda Care II/III, LLC 7.330 0.1263 6,645,000 6,615,820 116
GMAC1530-A Ennis Care Center - - - - -
GMAC1530-B Community Care Center - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4310 Park Palace Apartments 7.350 0.1263 6,550,000 6,541,673 118
GMAC1050 1801 South Clinton Street 6.375 0.1263 6,525,000 6,499,387 117
GMAC1850 Leisure Village Assisted Living 7.570 0.1263 6,320,000 6,299,793 117
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC3730 1/10/14 10 112,950 Balloon Lock/25_Defeasance/155 - 0.1263
GMAC3730-A - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3730-B - - - - - - -
GMAC3730-C - - - - - - -
GMAC3730-D - - - - - - -
GMAC2500 11/10/08 10 99,457 Balloon Lock/27_Defeasance/93 - 0.0613
GMAC4160 1/10/09 10 108,137 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2080 12/10/10 10 104,491 Balloon Lock/26_Defeasance/112_0%/6 - 0.1263
GMAC3980 1/10/09 10 89,582 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
GMAC4580 8/10/05 10 92,323 Balloon Lock/30_Defeasance/48_0%/6 - 0.1263
GMAC3180 10/10/08 10 79,229 Interest Only, Then Amortizing Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2380 9/10/08 10 70,210 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2470 11/1/10 1 72,037 Hyperamortizing Lock/48_Defeasance/95_0%/1 - 0.1263
GMAC1690 12/10/08 10 75,224 Balloon Lock/26_Defeasance/88_0%/6 - 0.1263
GMAC1360 9/1/08 1 67,213 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC1360-A - - - - - - -
GMAC1360-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3490 11/1/08 1 70,967 Hyperamortizing Lock/48_Defeasance/71_0%/1 - 0.1263
GMAC1600 11/10/08 10 62,115 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1600-A - - - - - - -
GMAC1600-B - - - - - - -
GMAC3700 1/10/09 10 64,541 Balloon Lock/25_Defeasance/95 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1350 10/1/08 1 59,729 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC2450 9/1/08 1 63,397 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC4480 8/1/08 1 59,977 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
GMAC2530 10/10/10 10 58,376 Balloon Lock/28_Defeasance/110_0%/6 - 0.1263
GMAC2720 12/10/14 10 53,067 Balloon Lock/26_Defeasance/163_0%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1170 10/10/08 10 51,334 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2880 9/10/08 10 51,787 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC1100 10/10/08 10 47,917 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2090 9/10/08 10 50,559 Interest Only, Then Amortizing Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC3810 1/10/09 10 49,895 Balloon Lock/25_Defeasance/95 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3340 12/10/08 10 48,243 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC2930 4/10/09 10 46,053 Hyperamortizing Lock/28_Defeasance/89_0%/9 - 0.0413
GMAC4070 1/10/09 10 49,132 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
GMAC4190 1/10/09 10 48,471 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
GMAC3150 12/10/08 10 45,529 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4030 1/10/09 10 46,526 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
GMAC2920 4/10/09 10 41,117 Hyperamortizing Lock/28_Defeasance/89_0%/9 - 0.0413
GMAC1530 10/1/08 1 48,830 Balloon Lock/29_Defeasance/85_0%6 - 0.1263
GMAC1530-A - - - - - - -
GMAC1530-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4310 12/5/08 5 45,606 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC1050 11/10/08 10 43,923 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1850 11/1/08 1 47,444 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2600 Sherwood Apartments 6.450 0.1263 6,160,000 6,139,117 116
GMAC4680 Hampton Inn - Solon 8.188 0.1263 6,100,000 6,094,686 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2660 Somerset Business Park 6.230 0.1263 6,000,000 5,983,783 117
GMAC3100 Westridge Shopping Center 6.470 0.1263 6,000,000 5,976,820 117
GMAC1410 Congress Care Center 6.540 0.1263 6,000,000 5,967,889 36
GMAC1430 Courtyard by Marriott - Orlando 7.875 0.1263 6,000,000 5,944,261 114
GMAC1260 Brittany Acres Apartments 6.260 0.1263 6,000,000 5,859,905 79
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1400 Comp USA - Barnes & Noble 6.860 0.1263 5,850,000 5,826,465 115
GMAC2870 Twelve Oaks Townhomes 6.640 0.1263 5,800,000 5,771,008 114
GMAC3300 Platinum Properties 5.875 0.1263 5,600,000 5,589,769 118
GMAC3300-A Colonial House Apartments - - - - -
GMAC3300-B Cody Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3300-C Midvale Manor Apartments - - - - -
GMAC3300-D Oak Terrace Apartments - - - - -
GMAC3300-E Pebble Creek Apartments - - - - -
GMAC4340 Greenbryre Apartments 7.350 0.1263 5,500,000 5,493,008 118
GMAC2590 Scott Villa Apartments 6.000 0.1263 5,500,000 5,490,238 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4170 Kendall Corporate Center 7.500 0.1263 5,450,000 5,446,686 119
GMAC1640 Gwinnett Place Business Park 6.210 0.1263 5,440,000 5,425,235 117
GMAC1110 Madison House Apartments 7.000 0.1263 5,400,000 5,377,609 115
GMAC1280 Bryn Mawr Square 6.350 0.1263 5,325,000 5,310,969 237
GMAC3850 Cypress Corporate Center 7.250 0.1263 5,250,000 5,246,589 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1440 Courtyard by Marriott - Sugarland 7.500 0.1263 5,300,000 5,234,958 109
GMAC3210 K-Mart 6.970 0.1263 4,975,000 4,961,608 223
GMAC2170 NEI Portfolio I- Yorba Linda Center 7.110 0.1263 4,950,000 4,927,656 114
GMAC1450 Cowan Moving and Storage 6.380 0.1263 4,900,000 4,874,589 116
GMAC1450-A Cowan Moving and Storage - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1450-B Cowan Moving and Storage - - - - -
GMAC1450-C Cowan Moving and Storage - - - - -
GMAC1450-D Cowan Moving and Storage - - - - -
GMAC4350 Seasons Chase Apartments 7.350 0.1263 4,800,000 4,793,898 118
GMAC2440 Retirement and Nursing Center - Austin, Ltd. 7.770 0.1263 4,700,000 4,670,676 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1740 INS Building 6.600 0.1263 4,700,000 4,623,727 175
GMAC3640 Webster Building 7.250 0.1263 4,650,000 4,589,669 117
GMAC1860 Linden West and East Apartments 6.830 0.1263 4,560,000 4,545,792 116
GMAC4020 Sherwood Forest Apartments 7.000 0.1263 4,500,000 4,493,736 118
GMAC3410 Apria Healthcare Building 7.000 0.1263 4,400,000 4,396,950 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3190 Foxboro & Ashworth Pointe Apartments 7.000 0.1263 4,400,000 4,393,875 178
GMAC2830 The Trade Center 7.200 0.1263 4,340,000 4,337,143 119
GMAC3200 Candlewood Apartments 6.160 0.1263 4,343,000 4,331,088 117
GMAC4330 Pelham Ridge Apartments 7.350 0.1263 4,300,000 4,294,533 118
GMAC3110 Willshire Cove Apartments 6.140 0.1263 4,300,000 4,288,156 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1480 Desert Wind Apartments 6.020 0.1263 4,300,000 4,283,999 116
GMAC2370 Promenade at Beach Boulevard 7.125 0.1263 4,300,000 4,283,650 115
GMAC2990 Sunshine Village 6.370 0.0413 4,290,000 4,270,878 121
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2600 10/10/08 10 39,115 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC4680 1/1/09 1 48,321 Hyperamortizing Lock/48_Defeasance/71_0%/1 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2660 11/10/08 10 37,217 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC3100 11/10/08 10 40,751 Balloon Lock/27_Defeasance/90_0%/3 - 0.1263
GMAC1410 1/31/02 1 40,663 Balloon Lock/34_0%/6 - 0.1263
GMAC1430 8/1/08 1 46,278 Hyperamortizing Lock/48_Defeasance/71_0%/4 - 0.1263
GMAC1260 9/10/05 10 59,644 Balloon Lock/28_Defeasance/50_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1400 9/10/08 10 38,761 Hyperamortizing >YM or 1%/114_0%/6 - 0.1263
GMAC2870 8/1/08 1 37,570 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
GMAC3300 12/10/08 10 33,433 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC3300-A - - - - - - -
GMAC3300-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3300-C - - - - - - -
GMAC3300-D - - - - - - -
GMAC3300-E - - - - - - -
GMAC4340 12/5/08 5 38,295 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2590 12/10/08 10 33,285 Balloon Lock/26_Defeasance/91_%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4170 1/10/09 10 38,511 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
GMAC1640 11/10/08 10 33,671 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC1110 9/10/08 10 35,926 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC1280 11/10/18 10 33,454 Balloon Lock/27_Defeasance/207_0%/6 - 0.1263
GMAC3850 1/10/09 10 36,187 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1440 3/1/08 1 39,553 Hyperamortizing Lock/48_Defeasance/66_0%/6 - 0.1263
GMAC3210 8/31/17 10 36,536 Balloon Lock/26_Defeasance/199 Yes 0.1263
GMAC2170 8/1/08 1 33,647 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
GMAC1450 10/10/08 10 33,003 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC1450-A - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1450-B - - - - - - -
GMAC1450-C - - - - - - -
GMAC1450-D - - - - - - -
GMAC4350 12/5/08 5 33,422 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2440 8/1/08 1 35,915 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1740 9/10/13 10 41,448 Fully Amortizing Lock/29_Defeasance/145_0%/6 Yes 0.1263
GMAC3640 11/10/08 10 48,702 Fully Amortizing Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC1860 10/10/08 10 30,123 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC4020 12/10/08 10 30,248 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC3410 1/10/09 10 29,572 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3190 12/10/13 10 29,575 Balloon Lock/26_Defeasance/151_0%3 - 0.1263
GMAC2830 1/10/09 10 29,765 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
GMAC3200 11/10/08 10 26,738 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC4330 12/5/08 5 29,940 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC3110 11/10/08 10 26,417 Balloon Lock/27_Defeasance/93 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1480 10/10/08 10 26,080 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2370 9/1/08 1 29,270 Balloon >YM or 1%/114_0%/6 - 0.1263
GMAC2990 3/10/09 10 27,010 Hyperamortizing Lock/29_Defeasance/88_0%/9 - 0.0413
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC3560 Kew Gardens Apartments 6.750 0.1263 4,250,000 4,246,862 119
GMAC3030 Village on the Green Apartments 6.220 0.1263 4,240,000 4,224,887 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2550 Sandy Safeway Center 6.880 0.1263 4,225,000 4,208,074 175
GMAC2430 Residence Inn by Marriott - Sugarland 7.500 0.1263 4,150,000 4,099,071 109
GMAC3060 Vista Court Apartments 6.030 0.1263 4,080,000 4,063,040 177
GMAC1590 Forest Ridge & Vistas Apartments 7.875 0.1263 4,000,000 3,988,927 179
GMAC2800 Super 8 Motel 7.250 0.1263 4,000,000 3,986,474 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3140 110-114 Delancey Street 6.920 0.1263 4,000,000 3,979,450 129
GMAC2230 Orangeburg Nursing Home 7.500 0.1263 3,900,000 3,878,545 115
GMAC1730 Hycor Biomedical - Control Income Properties I 6.770 0.1263 3,800,000 3,784,419 115
GMAC1020 149-155 Weldon Parkway Office/Warehouse Buildings 6.500 0.1263 3,775,000 3,760,489 117
GMAC4280 Highland Industrial Building 7.360 0.1263 3,750,000 3,747,633 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1190 Barnes & Noble Bookstore 6.010 0.1263 3,750,000 3,739,386 177
GMAC2610 Sherwood Village Apartments 6.240 0.1263 3,750,000 3,726,918 237
GMAC3440 Camino de la Reina Offices 6.950 0.1263 3,700,000 3,685,420 179
GMAC4080 Bonaventure & La Residencia Apartments 7.250 0.1263 3,600,000 3,595,302 118
GMAC2910 Swan Meadow Village - Uniprop NCII 6.060 0.0413 3,600,000 3,586,718 122
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3940 KMart/Winn Dixie Shopping Center 7.000 0.1263 3,600,000 3,572,621 154
GMAC2651 Skyview Living Center of SA 6.780 0.1263 3,547,000 3,519,957 115
GMAC3760 Avery Center 7.260 0.1263 3,500,000 3,495,444 118
GMAC1780 Koll Limited Edition 7.600 0.1263 3,500,000 3,494,260 239
GMAC2510 The Roosevelt 7.150 0.1263 3,500,000 3,485,908 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1380 Comfort Suites - Highlands Ranch 6.375 0.1263 3,500,000 3,478,821 237
GMAC2190 North River Business Center 7.080 0.1263 3,400,000 3,379,917 115
GMAC1420 Copper Croft Apartments 6.770 0.1263 3,300,000 3,286,469 115
GMAC4200 Victorian Square Apartments 7.250 0.1263 3,250,000 3,247,888 119
GMAC1910 Mandarin Emporium Shopping Center 7.250 0.1263 3,200,000 3,193,238 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3320 Whisperwood Apartments 6.940 0.1263 3,200,000 3,190,274 116
GMAC1070 222 New Road 6.380 0.1263 3,200,000 3,188,984 116
GMAC1790 La Posada Del Rey Apartments 6.370 0.1263 3,200,000 3,188,038 116
GMAC2300 Peachtree Executive Office Park 6.210 0.1263 3,187,500 3,178,849 117
GMAC2560 Sanford Home for Adults 8.010 0.1263 3,200,000 3,166,896 174
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1090 Voltarc Technologies Industrial Bldg. 8.770 0.1263 3,200,000 3,116,596 104
GMAC3010 Valleyfield Apartments 5.750 0.1263 3,100,000 3,067,750 177
GMAC3710 5801 14th Avenue & 273 Avenue P 7.240 0.1263 3,000,000 2,996,074 118
GMAC3710-A 273 Avenue P Apartments - - - - -
GMAC3710-B Pershing Arms Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3170 41-43 39th Place Apartments 6.730 0.1263 3,000,000 2,992,714 117
GMAC2840 Town Hall Shoppes 6.375 0.1263 3,000,000 2,992,137 117
GMAC1340 Claremont Corporate Center II 6.530 0.1263 3,000,000 2,991,867 117
GMAC2640 Simms Building 6.090 0.1263 3,000,000 2,989,003 116
GMAC2820 Terra Villa Apartments 6.990 0.1263 3,000,000 2,988,259 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2460 Rite Aid - Fremont 7.000 0.1263 2,960,000 2,953,437 238
GMAC2580 Schwartz Portfolio 7.200 0.1263 2,950,000 2,922,866 235
GMAC2580-A Bell Towers - - - - -
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC3560 1/10/09 10 27,841 Balloon Lock/25_Defeasance/92_0%/3 - 0.1263
GMAC3030 10/10/08 10 26,275 Balloon Lock/28_Defeasance/92 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2550 9/10/13 10 28,051 Balloon Lock/29_Defeasance/145_0%/6 - 0.1263
GMAC2430 3/1/08 1 30,971 Hyperamortizing Lock/48_Defeasance/66_0%/6 - 0.1263
GMAC3060 11/10/13 10 26,580 Balloon Lock/27_Defeasance/153 - 0.1263
GMAC1590 1/10/14 10 38,198 Fully Amortizing Lock/25_Defeasance/152_0%/3 - 0.1263
GMAC2800 11/1/08 1 29,183 Hyperamortizing Lock/48_Defeasance/71_0%/1 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3140 11/10/09 10 30,387 Balloon Lock/27_Defeasance/105 - 0.1263
GMAC2230 9/1/08 1 29,097 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC1730 9/1/08 1 24,946 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC1020 11/10/08 10 25,711 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC4280 1/10/09 10 26,134 Balloon Lock/25_Defeasance/89_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1190 11/10/13 10 22,717 Balloon Lock/27_Defeasance/147_0%/6 - 0.1263
GMAC2610 11/10/18 10 27,585 Fully Amortizing Lock/27_Defeasance/213 - 0.1263
GMAC3440 1/10/14 10 36,723 Fully Amortizing Lock/25_Defeasance/155 - 0.1263
GMAC4080 12/10/08 10 24,817 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC2910 4/10/09 10 21,929 Hyperamortizing Lock/28_Defeasance/89_0%/9 - 0.0413
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3940 12/10/11 10 35,348 Fully Amortizing Lock/26_Defeasance/124_0%/6 - 0.1263
GMAC2651 9/1/08 1 27,243 Balloon Lock/29_Defeasance/84_0%/6 - 0.1263
GMAC3760 12/10/08 10 24,152 Balloon Lock/26_Defeasance/88_0%/6 - 0.1263
GMAC1780 1/10/19 10 28,645 Fully Amortizing ock/25_Defeasance/35_0%/180 - 0.1263
GMAC2510 9/1/08 1 23,639 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1380 11/1/18 1 26,027 Fully Amortizing Lock/36_Defeasance/203_0%/1 - 0.1263
GMAC2190 9/10/08 10 24,428 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC1420 9/1/08 1 21,663 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC4200 1/10/09 10 22,402 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC1910 12/10/08 10 23,348 Balloon Lock/26_Defeasance/88_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3320 10/10/08 10 21,379 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC1070 10/10/08 10 20,170 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC1790 10/1/08 1 19,953 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC2300 11/10/08 10 19,729 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2560 8/1/13 1 26,786 Balloon Lock/31_Defeasance/143_0%6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1090 10/1/07 1 28,320 Balloon >1% or YM/114_0%/6 - 0.1263
GMAC3010 11/10/13 10 25,880 Fully Amortizing Lock/27_Defeasance/153 - 0.1263
GMAC3710 12/10/08 10 20,660 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC3710-A - - - - - - -
GMAC3710-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3170 11/10/08 10 19,612 Balloon ock/27_Defeasance/88_Lock/5 - 0.1263
GMAC2840 11/10/08 10 18,897 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1340 11/10/08 10 19,021 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2640 10/10/08 10 18,333 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC2820 9/1/08 1 20,143 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2460 12/10/18 10 21,114 Balloon Lock/26_Defeasance/208_0%/6 Yes 0.1263
GMAC2580 9/10/18 10 23,413 Fully Amortizing Lock/29_Defeasance/205_0%/6 - 0.1263
GMAC2580-A - - - - - - -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2580-B Christopher Center - - - - -
GMAC2580-C Mantra Center - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2580-D Coventry Square - - - - -
GMAC3670 Casa Real Apartments 7.000 0.1263 2,920,000 2,915,935 118
GMAC2480 River Ten Apartments 6.970 0.1263 2,889,000 2,877,645 115
GMAC1580 Fernwood Apartments 6.740 0.1263 2,845,000 2,845,000 114
GMAC3950 Marina Lakes Office Building 7.100 0.1263 2,850,000 2,843,618 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1130 778 Long Ridge Road Medical Office Building 6.280 0.1263 2,840,000 2,830,008 116
GMAC1180 Audubon Manor Apartments 6.850 0.1263 2,800,000 2,790,463 116
GMAC1230 Sabal Ridge Shopping Center 6.240 0.1263 2,800,000 2,790,063 176
GMAC2340 Perkins Center 6.470 0.1263 2,800,000 2,789,183 117
GMAC2900 River Walk - Uniprop NCII 6.060 0.0413 2,775,000 2,764,762 122
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1540 Eustis Plaza 6.580 0.1263 2,700,000 2,692,243 118
GMAC1030 1516 Baylis Street 6.375 0.1263 2,650,000 2,639,598 117
GMAC2400 Rancho Mill Apartments 6.600 0.1263 2,620,000 2,603,238 115
GMAC3590 Ridgewood Heights Apartments 6.950 0.1263 2,560,000 2,556,391 118
GMAC1570 Fairfield Inn by Marriott 6.500 0.1263 2,550,000 2,540,209 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2250 Pacific Care Center 7.490 0.1263 2,475,000 2,461,361 115
GMAC2790 Sugar Creek Apartments 6.125 0.1263 2,400,000 2,391,268 116
GMAC1370 Comfort Inn - Stafford, VA 7.000 0.1263 2,400,000 2,377,675 177
GMAC3500 San Souci Apartments & Esquire House Apartments 6.000 0.1263 2,300,000 2,293,476 117
GMAC3500-A Esquire House Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3500-B San Souci Apartments - - - - -
GMAC1460 Crystalaire Mobile Home Park 6.740 0.1263 2,300,000 2,290,509 115
GMAC2280 Parkview Apartments 6.470 0.1263 2,300,000 2,281,748 116
GMAC2670 Spring Plaza Office Center 7.250 0.1263 2,260,000 2,255,105 117
GMAC1240 Briarwood Apartments 8.375 0.1263 2,265,000 2,239,683 103
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1510 Eastlake Apartments 6.120 0.1263 2,200,000 2,196,203 118
GMAC2310 Peachtree Northeast Business Park 6.210 0.1263 2,130,000 2,124,219 117
GMAC2210 Oakdale Manor Cooperative Apartments 7.250 0.1263 2,100,000 2,098,636 119
GMAC2710 Staples Plaza 7.450 0.1263 2,100,000 2,095,657 173
GMAC1220 Bayshore Manor Office and Apartments 5.940 0.1263 2,100,000 2,092,051 176
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2410 Redmond Retirement Manor 7.560 0.1263 2,100,000 2,086,406 114
GMAC2890 Mill Run - Uniprop NCII 6.060 0.0413 2,090,000 2,082,289 122
GMAC2680 Spruce Pointe Apartments 6.030 0.1263 2,080,000 2,072,015 177
GMAC3570 Market Place Shopping Center 6.240 0.1263 2,050,000 2,029,580 117
GMAC1700 Heritage Square Shopping Center 6.875 0.1263 2,025,000 2,016,879 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4740 Eckerd's Clarksville 7.970 0.1263 2,006,513 2,000,323 235
GMAC1500 Drewbar Apartments 6.750 0.1263 2,000,000 1,997,035 118
GMAC1930 The Meadows Apartments 6.750 0.1263 2,000,000 1,995,164 177
GMAC1720 Holly Park Apartments 6.120 0.1263 2,000,000 1,992,716 116
GMAC2760 Stor-All Self Storage - Marietta 6.000 0.1263 2,000,000 1,992,526 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3220 Mission Garden Apartments 6.000 0.1263 2,000,000 1,991,645 117
GMAC1760 Karrington Care Center 6.940 0.1263 2,000,000 1,990,585 116
GMAC1390 Commerce Corner Shopping Center 6.770 0.1263 2,000,000 1,990,301 116
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2580-B - - - - - - -
GMAC2580-C - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2580-D - - - - - - -
GMAC3670 12/10/08 10 19,627 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC2480 9/1/08 1 19,359 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC1580 8/10/08 10 18,619 Interest Only, Then Amortizing Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC3950 11/10/08 10 19,351 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1130 10/10/08 10 17,712 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC1180 10/10/08 10 18,347 Balloon Lock/28__Defeasance/92 - 0.1263
GMAC1230 10/10/13 10 17,388 Balloon Lock/28_Defeasance/146_0%/6 - 0.1263
GMAC2340 11/10/08 10 19,017 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC2900 4/10/09 10 16,903 Hyperamortizing Lock/28_Defeasance/89_0%/9 - 0.0413
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1540 12/10/08 10 19,166 Balloon Lock/26_Defeasance/88_0%/6 - 0.1263
GMAC1030 11/10/08 10 17,839 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC2400 9/10/08 10 18,012 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC3590 12/10/08 10 17,120 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC1570 12/1/08 1 19,155 Hyperamortizing Lock/36_Defeasance/80_0%/4 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2250 9/1/08 1 18,449 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC2790 10/10/08 10 14,722 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC1370 11/1/13 1 21,707 Fully Amortizing Lock/48_Defeasance/128_0%/4 - 0.1263
GMAC3500 11/10/08 10 13,918 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC3500-A - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3500-B - - - - - - -
GMAC1460 9/1/08 1 15,052 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC2280 10/10/08 10 17,236 Balloon Lock/28_Defeasance/92_0%/0 - 0.1263
GMAC2670 11/10/08 10 15,578 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1240 9/1/07 1 17,216 Balloon Lock/48_0%/72 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1510 12/10/08 10 13,487 Balloon Lock/26_Defeasance/88_0%/6 - 0.1263
GMAC2310 11/10/08 10 13,184 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2210 1/10/09 10 14,475 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC2710 7/10/13 10 17,816 Fully Amortizing Lock/25_Defeasance/143_0%/6 Yes 0.1263
GMAC1220 10/10/13 10 12,627 Balloon Lock/28_Defeasance/146_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2410 8/1/08 1 15,753 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
GMAC2890 4/10/09 10 12,731 Hyperamortizing Lock/28_Defeasance/89_0%/9 - 0.0413
GMAC2680 11/10/13 10 13,331 Balloon Lock/27_Defeasance/150_0%/3 - 0.1263
GMAC3570 11/10/08 10 17,666 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC1700 9/10/08 10 13,438 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4740 9/1/18 1 16,412 Fully Amortizing Lock/60_Defeasance/175_0%/2 Yes 0.1263
GMAC1500 12/10/08 10 13,103 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC1930 11/10/13 10 13,102 Balloon Lock/27_Defeasance/147_0%/6 - 0.1263
GMAC1720 10/10/08 10 12,262 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC2760 10/10/08 10 12,104 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3220 11/10/08 10 12,992 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1760 10/1/08 1 14,188 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC1390 10/10/08 10 13,969 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC3930 Harrison Place Apartments 7.000 0.1263 1,920,000 1,917,327 118
GMAC4750 Eckerd's Shelbyville 7.970 0.1263 1,921,438 1,914,666 235
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4630 Heritage House Apartments 7.250 0.1263 1,880,000 1,878,778 119
GMAC1140 880 River Avenue 7.250 0.1263 1,890,000 1,876,451 116
GMAC2200 Northwood Apartments 5.830 0.1263 1,875,000 1,867,735 116
GMAC2700 St. Paul Building 7.310 0.1263 1,800,000 1,793,423 175
GMAC2850 Travelodge Hotel 6.250 0.1263 1,800,000 1,792,786 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1920 Martindale Court 5.875 0.1263 1,750,000 1,743,284 116
GMAC1270 Brittany Apartments 7.150 0.1263 1,720,000 1,717,696 118
GMAC2860 Tutor Time & Burger King 5.800 0.1263 1,720,000 1,713,294 116
GMAC2860-A Tutor Time Child Care Facility - - - - -
GMAC2860-B Burger King - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1210 Best Western Battlefield Inn 7.000 0.1263 1,700,000 1,689,811 118
GMAC3070 Walgreens-San Marcos 6.280 0.1263 1,700,000 1,677,538 176
GMAC1650 Eckerd Drug Store 6.800 0.1263 1,645,000 1,637,064 230
GMAC1330 Claremont Corporate Center I 7.375 0.1263 1,630,000 1,622,443 114
GMAC2490 RiverQuick Apartments 6.625 0.1263 1,625,000 1,618,131 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2150 NEI Portfolio I - Frontage Rd 7.110 0.1263 1,625,000 1,617,665 114
GMAC1010 111 Northfield Avenue Office 6.280 0.1263 1,600,000 1,598,675 119
GMAC1900 Maison Terrebonne Apartments 7.150 0.1263 1,600,000 1,596,131 118
GMAC1520 Eckerd Drug Store - Lithonia 5.730 0.1263 1,600,000 1,587,479 213
GMAC3690 360-370 East 31st Street 7.000 0.1263 1,560,000 1,558,919 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1890 Main Line Professional Center 7.080 0.1263 1,550,000 1,544,049 115
GMAC3420 ATC Building 7.480 0.1263 1,545,000 1,541,822 117
GMAC3920 Halliburton Center 7.500 0.1263 1,500,000 1,495,145 117
GMAC2780 Stratford Commons Apartments 6.160 0.1263 1,500,000 1,494,584 116
GMAC2420 Redwood Village Assisted Living 6.810 0.1263 1,500,000 1,494,529 177
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2770 Stor All Self Storage - Tucker 6.000 0.1263 1,500,000 1,494,394 116
GMAC1660 Eckerd Drug Store 6.540 0.1263 1,480,000 1,472,532 230
GMAC1040 15th Street Industrial 7.150 0.1263 1,425,000 1,398,600 174
GMAC1770 Kester Avenue Apartments 6.150 0.1263 1,400,000 1,397,601 118
GMAC3650 Murfreesboro Nursing Center 7.840 0.1263 1,400,000 1,397,368 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1810 Lakewood Apartments 6.650 0.1263 1,400,000 1,394,491 117
GMAC1670 Eckerd Drug Store 6.540 0.1263 1,385,000 1,378,012 224
GMAC1820 Lakewood Park Apartments 7.000 0.1263 1,350,000 1,343,263 114
GMAC2050 Merrill Lynch Building 6.320 0.1263 1,350,000 1,340,277 142
GMAC3780 Centennial Place Apartments 7.500 0.1263 1,341,000 1,339,362 178
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4410 Mercedes Plaza Shopping Center 7.810 0.1263 1,320,000 1,318,728 118
GMAC2350 Perkiomen Apartments 6.850 0.1263 1,300,000 1,295,572 116
GMAC1560 Fairfield Apartments 7.000 0.2513 1,270,000 1,262,397 115
GMAC2810 Tally Ho Apartments 6.500 0.1263 1,265,000 1,261,772 117
GMAC1290 Californian Apartments 6.250 0.1263 1,250,000 1,246,636 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2740 Stor-All Self Storage - Dunwoody 6.250 0.1263 1,200,000 1,195,750 116
GMAC1750 Jernee Mill Plaza 6.900 0.2513 1,200,000 1,195,690 117
GMAC1300 Cambridge Hills Assisted Living Center 6.600 0.1263 1,200,000 1,195,464 117
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC3930 12/10/08 10 12,906 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC4750 9/1/18 1 16,137 Fully Amortizing Lock/60_Defeasance/175_0%/2 Yes 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4630 1/10/09 10 12,958 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC1140 10/10/08 10 15,060 Balloon Lock/28 _Defeasance/87_0%/5 - 0.1263
GMAC2200 10/10/08 10 11,140 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC2700 9/1/13 1 12,482 Balloon Lock/30_Defeasance/144_0%/6 - 0.1263
GMAC2850 1/1/09 1 11,975 Hyperamortizing Lock/48_Defeasance/70_0%/4 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1920 10/10/08 10 10,448 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC1270 12/10/08 10 11,738 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC2860 10/10/08 10 10,185 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC2860-A - - - - - - -
GMAC2860-B - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1210 12/1/08 1 12,128 Hyperamortizing Lock/48_Defeasance/71_0%/4 - 0.1263
GMAC3070 10/1/13 1 14,689 Fully Amortizing Lock/29_Defeasance/145_0%/6 Yes 0.1263
GMAC1650 4/1/18 1 11,521 Balloon Lock/29_Defeasance/199_0%/6 - 0.1263
GMAC1330 8/10/08 10 11,258 Balloon Lock/30_Defeasance/84_0%/6 - 0.1263
GMAC2490 9/10/08 10 10,508 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2150 8/1/08 1 11,046 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
GMAC1010 1/10/09 10 9,977 Balloon Lock/25_Defeasance/95 - 0.1263
GMAC1900 12/10/08 10 11,462 Balloon Lock/26_Defeasance/94 - 0.1263
GMAC1520 11/10/16 10 11,963 Fully Amortizing Lock/27_Defeasance/183_0%/6 Yes 0.1263
GMAC3690 1/10/09 10 10,485 Balloon Lock/25_Defeasance/95 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1890 9/1/08 1 10,503 Balloon Lock/30_Defeasance/84_0%6 - 0.1263
GMAC3420 11/10/08 10 10,896 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC3920 11/10/08 10 11,191 Balloon Lock/27_Defeasance/87_0%/6 - 0.1263
GMAC2780 10/10/08 10 9,236 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC2420 11/1/13 1 10,514 Balloon Lock/28_Defeasance/146_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2770 10/10/08 10 9,078 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC1660 4/1/18 1 10,119 Balloon Lock/29_Defeasance/199_0%/6 - 0.1263
GMAC1040 8/1/13 1 13,012 Fully Amortizing Lock/31_Defeasance/143_0%/6 - 0.1263
GMAC1770 12/10/08 10 8,611 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC3650 12/1/08 1 10,763 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1810 11/10/08 10 9,585 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1670 10/1/17 1 9,469 Balloon Lock/29_Defeasance/193_0%/6 - 0.1263
GMAC1820 8/1/08 1 8,982 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
GMAC2050 12/10/10 10 12,195 Fully Amortizing Lock/26_Defeasance/118 Yes 0.1263
GMAC3780 12/10/13 10 9,477 Balloon Lock/26_Defeasance/154 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4410 12/10/08 10 9,511 Balloon Lock/26_Defeasance/91_0%/3 - 0.1263
GMAC2350 10/10/08 10 8,518 Balloon Lock/28_Defeasance/92 - 0.1263
GMAC1560 9/10/08 10 9,058 Balloon Lock/29_Defeasance/85_0%/6 - 0.2513
GMAC2810 11/10/08 10 8,074 Balloon Lock/27_Defeasance/93 - 0.1263
GMAC1290 11/10/08 10 7,770 Balloon Lock/27_Defeasance/93_0%/0 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2740 10/10/08 10 7,460 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC1750 11/10/08 10 8,481 Balloon Lock/26_Defeasance/94 - 0.2513
GMAC1300 11/1/08 1 8,250 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC3090 Westlake Village Professional 6.750 0.1263 1,125,000 1,121,431 116
GMAC1680 Office Max Retail Store 6.800 0.1263 1,100,000 1,098,390 178
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2750 Stor All Self Storage-Lake Worth 6.000 0.1263 1,100,000 1,096,140 116
GMAC2330 PEP Boys 6.750 0.2513 1,100,000 1,095,471 115
GMAC2290 Parkview Garden Apartments 7.100 0.1263 1,100,000 1,095,024 114
GMAC1250 Bridgestone - Firestone 7.000 0.1263 1,090,000 1,079,717 235
GMAC3130 Winterhaven Apartments 5.720 0.1263 1,057,500 1,051,373 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2730 Decatur Stor - All 6.000 0.1263 1,000,000 996,263 116
GMAC2160 NEI Portfolio I - Roberts Street Office Bldg. 7.110 0.1263 985,000 980,554 114
GMAC1320 Chief Auto Shopping Center 7.125 0.1263 910,000 904,665 115
GMAC4780 Lakeway Apartments 7.250 0.1263 900,000 899,415 119
GMAC2130 NEI Portfolio I - Congress 7.110 0.1263 890,000 885,983 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2120 NEI Portfolio I - Prospect Apartments 7.110 0.1263 750,000 746,615 114
GMAC2110 NEI Portfolio I - 27 Imlay Street 7.110 0.1263 300,000 298,646 114
GMAC2140 NEI Portfolio I - Farmington 7.110 0.1263 300,000 298,646 114
1,334,328,273
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC3090 10/10/08 10 7,371 Balloon Lock/28_Defeasance/86 _0%/6 - 0.1263
GMAC1680 12/10/13 10 7,244 Balloon Lock/26_Defeasance/148_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2750 10/10/08 10 6,595 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2330 9/10/08 10 7,206 Balloon Lock/29_Defeasance/85_0%/6 - 0.2513
GMAC2290 8/1/08 1 7,470 Balloon Lock/31_Defeasance/83_0%/6 - 0.1263
GMAC1250 9/1/18 1 8,517 Fully Amortizing Lock/30_Defeasance/204_0%/6 Yes 0.1263
GMAC3130 10/10/08 10 6,687 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2730 10/10/08 10 6,052 Balloon Lock/28_Defeasance/86_0%/6 - 0.1263
GMAC2160 8/1/08 1 6,695 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
GMAC1320 9/10/08 10 6,565 Balloon Lock/29_Defeasance/85_0%/6 - 0.1263
GMAC4780 1/10/09 10 6,204 Balloon Lock/25_Defeaseance/95 - 0.1263
GMAC2130 8/1/08 1 6,050 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2120 8/1/08 1 5,098 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
GMAC2110 8/1/08 1 2,039 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
GMAC2140 8/1/08 1 2,039 Balloon (>YM or 1%)+(25%)/114_0%/6 - 0.1263
</TABLE>
Exhibit 99.1
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of February 2, 1999, between GMAC Commercial Mortgage Corporation
as seller (the "Seller" or "GMACCM") 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"). Certain other multi family and commercial mortgage
loans will be purchased by the Purchaser from (i) LaSalle National Bank as
Trustee for Restructured Asset Certificates With Enhanced Returns, Series
1998-ML Trust ("ML Trust") pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of February 2, 1999 (the "ML
Trust Mortgage Loan Purchase Agreement") between the Purchaser and the ML Trust
and (ii) German American Capital Corporation ("GACC"), pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
February 2, 1999 (the "GACC Mortgage Loan Purchase Agreement"), between the
Depositor and GACC (the mortgage loans purchased by the Purchaser under the ML
Trust Mortgage Loan Purchase Agreement and the GACC Mortgage Loan Purchase
Agreement, the "Other Mortgage Loans"). The Seller, ML Trust and GACC are
collectively referred to as the "Mortgage Loan Sellers."
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 and Fitch IBCA, 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 February 1, 1999 (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
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class C,
Class D, Class E and a portion of the Class X Certificates to Goldman, Sachs &
Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation (together, the "Underwriters") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement").
<PAGE>
The Purchaser intends to sell a portion of the Class X Certificates to GMACCM
(in such capacity, a "Class X Certificate Purchaser") pursuant to a Class X
Certificate Purchase Agreement dated the date hereof (the "Class X Certificate
Purchase Agreement"). The Purchaser intends to sell the Class F, Class G, Class
H, Class J and Class K Certificates to GMACCM (in such capacity, an "Initial
Purchaser") pursuant to a Certificate Purchase Agreement dated the date hereof
(the "Certificate Purchase Agreement"). The Purchaser intends to sell the Class
R-I, Class R-II and the Class R-III Certificates to Goldman, Sachs & Co. (in
such capacity, an "Initial Purchaser"). The Class F, Class G, Class H, Class J,
Class K, Class R-I, Class R-II and Class R-III Certificates are collectively
referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on February 9, 1999 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in February 1999. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
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
$1,313,693,704, subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans shall be $1,310,116,152.
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), 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 for such Mortgage Loan, 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 for each Mortgage Loan, and all other recoveries of
principal and interest collected thereon after such Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date for
each Mortgage Loan and collected after such 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
2
<PAGE>
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 Mortgage Note, the 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 Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B, with evidence of
recording thereon, solely because of a delay caused by the public recording or
filing office where such document or instrument has been delivered for
recordation or filing, or because such original recorded document has been lost
or returned from the recording or filing office and subsequently lost, as the
case may be, the delivery requirements of this Section 2(b) shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be) has been
delivered to the 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
3
<PAGE>
Date, upon notification from the Seller that the purchase price referred to in
Section 1 (exclusive of any applicable holdback for transaction expenses) 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 (i) 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 and (ii) the delivery
of a copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
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
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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 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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(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
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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
Class X Certificate Purchaser, 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 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
the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Other
Mortgage Loans, the information set forth on pages A-8 through A-11,
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 the
Other Mortgage Loans and/or the Seller and does not represent a restatement
of the information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9) under
the headings "Summary Information--The Mortgage Pool", "Risk Factors--Risks
Related to 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.
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(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
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(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 Class X
Certificate Purchaser, 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.
(viii) 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 Purchaser with this Agreement, or the
consummation by the Purchaser 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 Purchaser under this Agreement.
(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 as in effect on the
Closing Date) 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 (a "Breach"), 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 as in effect on the
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Closing Date) 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 as in effect on the Closing
Date.
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).
In addition, if, as of the Closing Date, 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 C-1 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 holders of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Breach"),
the Seller shall be required, at its option, to either (i) cure such Breach in
all material respects or (ii) repurchase the affected Mortgage Loan, in each
case, within the applicable Permitted Cure Period (as defined below). If any
such 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.
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For purposes of the preceding paragraph only, the "Permitted Cure Period"
applicable to any Breach in respect of any Mortgage Loan shall be the 90-day
period immediately following the earlier of the discovery by the Seller or
receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but is reasonably likely that such Breach could be corrected or cured within 180
days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach 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 or its designee 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 Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New
York, New York 10103 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of
this Agreement;
(ii) All documents specified in Section 8 (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) None of the Underwriting Agreement, the Class X Certificate
Purchase Agreement or 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 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;
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(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 or the Other 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 or the Other
Mortgage Loans contained in the Prospectus Supplement or the Memorandum under
the headings "Summary Information -- The Mortgage Pool", "Risk Factors --Risks
Related to 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 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. 333-64963 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the
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prospectus dated November 5, 1998, as supplemented by the prospectus supplement
dated February 2, 1999 (the "Prospectus Supplement"), relating to the Registered
Certificates; "Memorandum" shall mean the private placement memorandum dated
February 2, 1999, 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, 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
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grounds of policy or otherwise, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnified and indemnifying parties in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
indemnified and indemnifying parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such parties
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
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,
14
<PAGE>
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 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.
15
<PAGE>
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.
16
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
17
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC4240 AMD Corporate Headquarters 7.780 0.1263 68,250,000 68,211,566 119
GMAC1950 Meringoff & Shidler NY Portfolio 6.950 0.0638 62,950,000 62,804,289 117
GMAC1950-A 12 West 21st Street Office Building - - - - -
GMAC1950-B 12-16 West 27th Street Office Building - - - - -
GMAC1950-C West 26th Street Office Building - - - - -
GMAC1950-D 400 Eighth Avenue Office Building - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1950-E 401 Park Avenue South Office Building - - - - -
GMAC1950-F 462-68 Broadway Office Building - - - - -
GMAC1950-G 681 Lexington Office Building - - - - -
GMAC1950-H 686 Lexington Office Building - - - - -
GMAC1950-I 88 University Place Office Building - - - - -
GMAC4690 Hudson Valley Mall 7.680 0.1263 58,600,000 58,566,075 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4420 The Mills Building & 333 Pine Street 7.700 0.1263 36,000,000 36,000,000 119
GMAC1060 211 W. Fort Street 6.970 0.1263 32,000,000 31,874,231 175
GMAC2940 Uniprop Manufactured Housing Comm. Income Fund II 6.370 0.0413 25,710,000 25,595,401 121
GMAC2940-A West Valley - - - - -
GMAC2940-B El Adobe - - - - -
GMAC2940-C Camelot Manor - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2940-D Stonegate - - - - -
GMAC2940-E Ardmor Village - - - - -
GMAC2940-F Dutch Hills - - - - -
GMAC2070 Monterra & Chandler's Reach Apartments 5.620 0.1263 25,500,000 25,500,000 116
GMAC2070-A Monterra Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2070-B Chandler's Reach Apartments - - - - -
GMAC1710 Cendant Corp. 7.890 0.1263 24,000,000 23,916,577 127
GMAC4300 Camden at Palmer Ranch 7.350 0.1263 22,500,000 22,452,347 117
GMAC4560 Villas at Rancho Del Norte 7.350 0.1263 21,750,000 21,736,236 119
GMAC3020 Victoria Woods Apartments 6.300 0.1263 20,400,000 20,328,537 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4570 Balmoral Village Apartments 7.350 0.1263 18,500,000 18,488,292 119
GMAC4140 Schoettler Village Apartments 7.250 0.1263 18,500,000 18,475,855 118
GMAC2650 Skyview Living Centers 7.210 0.1263 17,953,000 17,788,077 115
GMAC2650-A Skyview Living Center of Stamford - - - - -
GMAC2650-B Skyview Living Center of Lewisville - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2650-C Skyview Living Center of Denton - - - - -
GMAC2650-D Skyview Living Center of Waco - - - - -
GMAC1470 Delta Pointe Apartments 6.200 0.1263 17,520,000 17,520,000 116
GMAC3310 Round Hill Square Shopping Center 6.800 0.1263 17,350,000 17,337,349 119
GMAC1160 AmeriPark Assisted Living Facilities 7.110 0.1263 16,920,000 16,801,616 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1160-A Sequoia Village - - - - -
GMAC1160-B The Village - - - - -
GMAC1160-C Twin Cities Village - - - - -
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC4240 1/10/09 10 495,671 Balloon Lock/25_Defeasance/92_0%/3 0.1263
GMAC1950 11/10/08 10 420,944 Balloon Lock/27_Defeasance/87_0%/6 0.0638
GMAC1950-A - - - - - -
GMAC1950-B - - - - - -
GMAC1950-C - - - - - -
GMAC1950-D - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1950-E - - - - - -
GMAC1950-F - - - - - -
GMAC1950-G - - - - - -
GMAC1950-H - - - - - -
GMAC1950-I - - - - - -
GMAC4690 1/10/09 10 421,467 Balloon Lock/25_Defeasance/92_0%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4420 1/10/09 10 256,666 Interest Only, Then Amortizing Lock/25_Defeasance/92_0%/3 0.1263
GMAC1060 9/10/13 10 214,425 Balloon Lock/29_Defeasance/145_0%/6 0.1263
GMAC2940 3/10/09 10 161,868 Hyperamortizing Lock/29_Defeasance/88_0%/9 0.0413
GMAC2940-A - - - - - -
GMAC2940-B - - - - - -
GMAC2940-C - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2940-D - - - - - -
GMAC2940-E - - - - - -
GMAC2940-F - - - - - -
GMAC2070 10/10/08 10 148,025 Interest Only, Then Amortizing Lock/28_Defeasance/92 0.1263
GMAC2070-A - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2070-B - - - - - -
GMAC1710 9/10/09 10 174,267 Balloon > of YM or 1% UPB/126_0%/6 0.1263
GMAC4300 11/5/08 5 156,649 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC4560 1/10/09 10 151,424 Balloon Lock/25_Defeasance/95 0.1263
GMAC3020 10/10/08 10 127,497 Balloon Lock/28_Defeasance/86_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4570 1/5/09 5 128,797 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC4140 12/10/08 10 127,531 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC2650 9/1/08 1 142,596 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC2650-A - - - - - -
GMAC2650-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2650-C - - - - - -
GMAC2650-D - - - - - -
GMAC1470 10/10/08 10 108,325 Interest Only, Then Amortizing Lock/28_Defeasance/92 0.1263
GMAC3310 1/10/09 10 114,245 Balloon Lock/25_Defeasance/95 0.1263
GMAC1160 8/1/08 1 121,909 Balloon Lock/31_Defeasance/83_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1160-A - - - - - -
GMAC1160-B - - - - - -
GMAC1160-C - - - - - -
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC3730 All Space Self Storage 7.490 0.1263 16,000,000 15,990,246 179
GMAC3730-A All Space - Costa Mesa - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3730-B All Space - San Marcos - - - - -
GMAC3730-C All Space - Garden Grove - - - - -
GMAC3730-D All Space - Huntington Beach - - - - -
GMAC2500 Robertson Center 6.250 0.0613 16,000,000 15,956,938 117
GMAC4160 Hathaway Court Apartments 7.410 0.1263 15,440,000 15,430,383 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2080 One Montgomery Plaza 7.490 0.1263 14,800,000 14,781,872 142
GMAC3980 Windward Concourse 6.875 0.1263 13,500,000 13,490,340 119
GMAC4580 Westchester Shopping Center 7.170 0.1263 13,500,000 13,439,862 78
GMAC3180 Arbor Trail Apartments 6.510 0.1263 12,400,000 12,400,000 116
GMAC2380 Promenade at Red Cliff 6.500 0.1263 11,000,000 10,952,273 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2470 The River Inn 7.000 0.1263 10,100,000 10,064,340 141
GMAC1690 Heritage Place Office Tower 7.250 0.1263 10,000,000 9,974,333 118
GMAC1360 Colonial Trace & Summerfield Apartments 7.000 0.1263 10,000,000 9,960,947 115
GMAC1360-A Colonial Trace Apartments - - - - -
GMAC1360-B Summerfield Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3490 Courtyard by Marriott - Irving 7.000 0.1263 9,950,000 9,914,870 117
GMAC1600 Foxfire I & II Apartments 6.750 0.1263 9,480,000 9,457,042 117
GMAC1600-A Foxfire I & II Apartments - - - - -
GMAC1600-B Spanish Walk Apartments - - - - -
GMAC3700 3780-3858 Nostrand Avenue 7.650 0.1263 9,000,000 8,994,747 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1350 Colchester Facility 6.875 0.1263 9,000,000 8,972,241 116
GMAC2450 The Gardens of Richardson 7.110 0.1263 8,800,000 8,748,282 115
GMAC4480 Pontiac Place 7.250 0.1263 8,700,000 8,661,924 114
GMAC2530 Roseville-Sutter Medical Office Building 7.200 0.1263 8,600,000 8,572,652 140
GMAC2720 Staples & Linens 'N Things 6.750 0.1263 8,100,000 8,087,993 190
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1170 Applewood on the Green Apartments 6.550 0.1263 8,000,000 7,973,469 116
GMAC2880 Union Foods Industrial Building 6.880 0.1263 7,800,000 7,768,752 115
GMAC1100 401-415 Santa Monica Boulevard 6.430 0.1263 7,550,000 7,523,975 116
GMAC2090 Mountain View Corp. Center 7.030 0.1263 7,500,000 7,500,000 115
GMAC3810 Coronado Plaza 6.900 0.1263 7,500,000 7,494,667 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3340 Willowbend Apartments 6.670 0.1263 7,425,000 7,413,774 118
GMAC2930 Vista Del Sol - Uniprop NCII 6.260 0.0413 7,400,000 7,373,851 122
GMAC4070 Alpine Lake Apartments 7.150 0.1263 7,200,000 7,195,198 119
GMAC4190 Valley River Court Apartments 7.260 0.1263 7,025,000 7,020,447 119
GMAC3150 1347 Partnership 6.680 0.1263 7,000,000 6,989,442 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4030 U.S. Justice Building 7.250 0.1263 6,750,000 6,745,614 119
GMAC2920 Valley View - Uniprop NCII 6.060 0.0413 6,750,000 6,725,097 122
GMAC1530 Hacienda Care II/III, LLC 7.330 0.1263 6,645,000 6,615,820 116
GMAC1530-A Ennis Care Center - - - - -
GMAC1530-B Community Care Center - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4310 Park Palace Apartments 7.350 0.1263 6,550,000 6,541,673 118
GMAC1050 1801 South Clinton Street 6.375 0.1263 6,525,000 6,499,387 117
GMAC1850 Leisure Village Assisted Living 7.570 0.1263 6,320,000 6,299,793 117
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC3730 1/10/14 10 112,950 Balloon Lock/25_Defeasance/155 0.1263
GMAC3730-A - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3730-B - - - - - -
GMAC3730-C - - - - - -
GMAC3730-D - - - - - -
GMAC2500 11/10/08 10 99,457 Balloon Lock/27_Defeasance/93 0.0613
GMAC4160 1/10/09 10 108,137 Balloon Lock/25_Defeasance/92_0%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2080 12/10/10 10 104,491 Balloon Lock/26_Defeasance/112_0%/6 0.1263
GMAC3980 1/10/09 10 89,582 Balloon Lock/25_Defeasance/89_0%/6 0.1263
GMAC4580 8/10/05 10 92,323 Balloon Lock/30_Defeasance/48_0%/6 0.1263
GMAC3180 10/10/08 10 79,229 Interest Only, Then Amortizing Lock/28_Defeasance/86_0%/6 0.1263
GMAC2380 9/10/08 10 70,210 Balloon Lock/29_Defeasance/85_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2470 11/1/10 1 72,037 Hyperamortizing Lock/48_Defeasance/95_0%/1 0.1263
GMAC1690 12/10/08 10 75,224 Balloon Lock/26_Defeasance/88_0%/6 0.1263
GMAC1360 9/1/08 1 67,213 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC1360-A - - - - - -
GMAC1360-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3490 11/1/08 1 70,967 Hyperamortizing Lock/48_Defeasance/71_0%/1 0.1263
GMAC1600 11/10/08 10 62,115 Balloon Lock/27_Defeasance/93 0.1263
GMAC1600-A - - - - - -
GMAC1600-B - - - - - -
GMAC3700 1/10/09 10 64,541 Balloon Lock/25_Defeasance/95 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1350 10/1/08 1 59,729 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC2450 9/1/08 1 63,397 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC4480 8/1/08 1 59,977 Balloon Lock/31_Defeasance/83_0%/6 0.1263
GMAC2530 10/10/10 10 58,376 Balloon Lock/28_Defeasance/110_0%/6 0.1263
GMAC2720 12/10/14 10 53,067 Balloon Lock/26_Defeasance/163_0%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1170 10/10/08 10 51,334 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC2880 9/10/08 10 51,787 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC1100 10/10/08 10 47,917 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC2090 9/10/08 10 50,559 Interest Only, Then Amortizing Lock/29_Defeasance/85_0%/6 0.1263
GMAC3810 1/10/09 10 49,895 Balloon Lock/25_Defeasance/95 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3340 12/10/08 10 48,243 Balloon Lock/26_Defeasance/94 0.1263
GMAC2930 4/10/09 10 46,053 Hyperamortizing Lock/28_Defeasance/89_0%/9 0.0413
GMAC4070 1/10/09 10 49,132 Balloon Lock/25_Defeasance/89_0%/6 0.1263
GMAC4190 1/10/09 10 48,471 Balloon Lock/25_Defeasance/92_0%/3 0.1263
GMAC3150 12/10/08 10 45,529 Balloon Lock/26_Defeasance/91_0%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4030 1/10/09 10 46,526 Balloon Lock/25_Defeasance/89_0%/6 0.1263
GMAC2920 4/10/09 10 41,117 Hyperamortizing Lock/28_Defeasance/89_0%/9 0.0413
GMAC1530 10/1/08 1 48,830 Balloon Lock/29_Defeasance/85_0%6 0.1263
GMAC1530-A - - - - - -
GMAC1530-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4310 12/5/08 5 45,606 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC1050 11/10/08 10 43,923 Balloon Lock/27_Defeasance/93 0.1263
GMAC1850 11/1/08 1 47,444 Balloon Lock/28_Defeasance/86_0%/6 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2600 Sherwood Apartments 6.450 0.1263 6,160,000 6,139,117 116
GMAC4680 Hampton Inn - Solon 8.188 0.1263 6,100,000 6,094,686 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2660 Somerset Business Park 6.230 0.1263 6,000,000 5,983,783 117
GMAC3100 Westridge Shopping Center 6.470 0.1263 6,000,000 5,976,820 117
GMAC1410 Congress Care Center 6.540 0.1263 6,000,000 5,967,889 36
GMAC1260 Brittany Acres Apartments 6.260 0.1263 6,000,000 5,859,905 79
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1400 Comp USA - Barnes & Noble 6.860 0.1263 5,850,000 5,826,465 115
GMAC2870 Twelve Oaks Townhomes 6.640 0.1263 5,800,000 5,771,008 114
GMAC3300 Platinum Properties 5.875 0.1263 5,600,000 5,589,769 118
GMAC3300-A Colonial House Apartments - - - - -
GMAC3300-B Cody Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3300-C Midvale Manor Apartments - - - - -
GMAC3300-D Oak Terrace Apartments - - - - -
GMAC3300-E Pebble Creek Apartments - - - - -
GMAC4340 Greenbryre Apartments 7.350 0.1263 5,500,000 5,493,008 118
GMAC2590 Scott Villa Apartments 6.000 0.1263 5,500,000 5,490,238 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4170 Kendall Corporate Center 7.500 0.1263 5,450,000 5,446,686 119
GMAC1640 Gwinnett Place Business Park 6.210 0.1263 5,440,000 5,425,235 117
GMAC1110 Madison House Apartments 7.000 0.1263 5,400,000 5,377,609 115
GMAC1280 Bryn Mawr Square 6.350 0.1263 5,325,000 5,310,969 237
GMAC3850 Cypress Corporate Center 7.250 0.1263 5,250,000 5,246,589 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3210 K-Mart 6.970 0.1263 4,975,000 4,961,608 223
GMAC2170 NEI Portfolio I- Yorba Linda Center 7.110 0.1263 4,950,000 4,927,656 114
GMAC1450 Cowan Moving and Storage 6.380 0.1263 4,900,000 4,874,589 116
GMAC1450-A Cowan Moving and Storage - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1450-B Cowan Moving and Storage - - - - -
GMAC1450-C Cowan Moving and Storage - - - - -
GMAC1450-D Cowan Moving and Storage - - - - -
GMAC4350 Seasons Chase Apartments 7.350 0.1263 4,800,000 4,793,898 118
GMAC2440 Retirement and Nursing Center - Austin, Ltd. 7.770 0.1263 4,700,000 4,670,676 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1740 INS Building 6.600 0.1263 4,700,000 4,623,727 175
GMAC3640 Webster Building 7.250 0.1263 4,650,000 4,589,669 117
GMAC1860 Linden West and East Apartments 6.830 0.1263 4,560,000 4,545,792 116
GMAC4020 Sherwood Forest Apartments 7.000 0.1263 4,500,000 4,493,736 118
GMAC3410 Apria Healthcare Building 7.000 0.1263 4,400,000 4,396,950 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3190 Foxboro & Ashworth Pointe Apartments 7.000 0.1263 4,400,000 4,393,875 178
GMAC2830 The Trade Center 7.200 0.1263 4,340,000 4,337,143 119
GMAC3200 Candlewood Apartments 6.160 0.1263 4,343,000 4,331,088 117
GMAC4330 Pelham Ridge Apartments 7.350 0.1263 4,300,000 4,294,533 118
GMAC3110 Willshire Cove Apartments 6.140 0.1263 4,300,000 4,288,156 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1480 Desert Wind Apartments 6.020 0.1263 4,300,000 4,283,999 116
GMAC2370 Promenade at Beach Boulevard 7.125 0.1263 4,300,000 4,283,650 115
GMAC2990 Sunshine Village 6.370 0.0413 4,290,000 4,270,878 121
GMAC3560 Kew Gardens Apartments 6.750 0.1263 4,250,000 4,246,862 119
GMAC3030 Village on the Green Apartments 6.220 0.1263 4,240,000 4,224,887 116
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2600 10/10/08 10 39,115 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC4680 1/1/09 1 48,321 Hyperamortizing Lock/48_Defeasance/71_0%/1 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2660 11/10/08 10 37,217 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC3100 11/10/08 10 40,751 Balloon Lock/27_Defeasance/90_0%/3 0.1263
GMAC1410 1/31/02 1 40,663 Balloon Lock/34_0%/6 0.1263
GMAC1260 9/10/05 10 59,644 Balloon Lock/28_Defeasance/50_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1400 9/10/08 10 38,761 Hyperamortizing >YM or 1%/114_0%/6 0.1263
GMAC2870 8/1/08 1 37,570 Balloon Lock/31_Defeasance/83_0%/6 0.1263
GMAC3300 12/10/08 10 33,433 Balloon Lock/26_Defeasance/94 0.1263
GMAC3300-A - - - - - -
GMAC3300-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3300-C - - - - - -
GMAC3300-D - - - - - -
GMAC3300-E - - - - - -
GMAC4340 12/5/08 5 38,295 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2590 12/10/08 10 33,285 Balloon Lock/26_Defeasance/91_%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4170 1/10/09 10 38,511 Balloon Lock/25_Defeasance/89_0%/6 0.1263
GMAC1640 11/10/08 10 33,671 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC1110 9/10/08 10 35,926 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC1280 11/10/18 10 33,454 Balloon Lock/27_Defeasance/207_0%/6 0.1263
GMAC3850 1/10/09 10 36,187 Balloon Lock/25_Defeasance/89_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3210 8/31/17 10 36,536 Balloon Lock/26_Defeasance/199 Yes 0.1263
GMAC2170 8/1/08 1 33,647 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
GMAC1450 10/10/08 10 33,003 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC1450-A - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1450-B - - - - - -
GMAC1450-C - - - - - -
GMAC1450-D - - - - - -
GMAC4350 12/5/08 5 33,422 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2440 8/1/08 1 35,915 Balloon Lock/31_Defeasance/83_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1740 9/10/13 10 41,448 Fully Amortizing Lock/29_Defeasance/145_0%/6 Yes 0.1263
GMAC3640 11/10/08 10 48,702 Fully Amortizing Lock/27_Defeasance/87_0%/6 0.1263
GMAC1860 10/10/08 10 30,123 Balloon Lock/28_Defeasance/92 0.1263
GMAC4020 12/10/08 10 30,248 Balloon Lock/26_Defeasance/94 0.1263
GMAC3410 1/10/09 10 29,572 Balloon Lock/25_Defeasance/92_0%/3 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3190 12/10/13 10 29,575 Balloon Lock/26_Defeasance/151_0%3 0.1263
GMAC2830 1/10/09 10 29,765 Balloon Lock/25_Defeasance/89_0%/6 0.1263
GMAC3200 11/10/08 10 26,738 Balloon Lock/27_Defeasance/93 0.1263
GMAC4330 12/5/08 5 29,940 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC3110 11/10/08 10 26,417 Balloon Lock/27_Defeasance/93 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1480 10/10/08 10 26,080 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC2370 9/1/08 1 29,270 Balloon >YM or 1%/114_0%/6 0.1263
GMAC2990 3/10/09 10 27,010 Hyperamortizing Lock/29_Defeasance/88_0%/9 0.0413
GMAC3560 1/10/09 10 27,841 Balloon Lock/25_Defeasance/92_0%/3 0.1263
GMAC3030 10/10/08 10 26,275 Balloon Lock/28_Defeasance/92 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2550 Sandy Safeway Center 6.880 0.1263 4,225,000 4,208,074 175
GMAC3060 Vista Court Apartments 6.030 0.1263 4,080,000 4,063,040 177
GMAC1590 Forest Ridge & Vistas Apartments 7.875 0.1263 4,000,000 3,988,927 179
GMAC2800 Super 8 Motel 7.250 0.1263 4,000,000 3,986,474 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3140 110-114 Delancey Street 6.920 0.1263 4,000,000 3,979,450 129
GMAC2230 Orangeburg Nursing Home 7.500 0.1263 3,900,000 3,878,545 115
GMAC1730 Hycor Biomedical - Control Income Properties I 6.770 0.1263 3,800,000 3,784,419 115
GMAC1020 149-155 Weldon Parkway Office/Warehouse Buildings 6.500 0.1263 3,775,000 3,760,489 117
GMAC4280 Highland Industrial Building 7.360 0.1263 3,750,000 3,747,633 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1190 Barnes & Noble Bookstore 6.010 0.1263 3,750,000 3,739,386 177
GMAC2610 Sherwood Village Apartments 6.240 0.1263 3,750,000 3,726,918 237
GMAC3440 Camino de la Reina Offices 6.950 0.1263 3,700,000 3,685,420 179
GMAC4080 Bonaventure & La Residencia Apartments 7.250 0.1263 3,600,000 3,595,302 118
GMAC2910 Swan Meadow Village - Uniprop NCII 6.060 0.0413 3,600,000 3,586,718 122
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3940 KMart/Winn Dixie Shopping Center 7.000 0.1263 3,600,000 3,572,621 154
GMAC2651 Skyview Living Center of SA 6.780 0.1263 3,547,000 3,519,957 115
GMAC3760 Avery Center 7.260 0.1263 3,500,000 3,495,444 118
GMAC1780 Koll Limited Edition 7.600 0.1263 3,500,000 3,494,260 239
GMAC2510 The Roosevelt 7.150 0.1263 3,500,000 3,485,908 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1380 Comfort Suites - Highlands Ranch 6.375 0.1263 3,500,000 3,478,821 237
GMAC2190 North River Business Center 7.080 0.1263 3,400,000 3,379,917 115
GMAC1420 Copper Croft Apartments 6.770 0.1263 3,300,000 3,286,469 115
GMAC4200 Victorian Square Apartments 7.250 0.1263 3,250,000 3,247,888 119
GMAC1910 Mandarin Emporium Shopping Center 7.250 0.1263 3,200,000 3,193,238 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3320 Whisperwood Apartments 6.940 0.1263 3,200,000 3,190,274 116
GMAC1070 222 New Road 6.380 0.1263 3,200,000 3,188,984 116
GMAC1790 La Posada Del Rey Apartments 6.370 0.1263 3,200,000 3,188,038 116
GMAC2300 Peachtree Executive Office Park 6.210 0.1263 3,187,500 3,178,849 117
GMAC2560 Sanford Home for Adults 8.010 0.1263 3,200,000 3,166,896 174
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3010 Valleyfield Apartments 5.750 0.1263 3,100,000 3,067,750 177
GMAC3710 5801 14th Avenue & 273 Avenue P 7.240 0.1263 3,000,000 2,996,074 118
GMAC3710-A 273 Avenue P Apartments - - - - -
GMAC3710-B Pershing Arms Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3170 41-43 39th Place Apartments 6.730 0.1263 3,000,000 2,992,714 117
GMAC2840 Town Hall Shoppes 6.375 0.1263 3,000,000 2,992,137 117
GMAC1340 Claremont Corporate Center II 6.530 0.1263 3,000,000 2,991,867 117
GMAC2640 Simms Building 6.090 0.1263 3,000,000 2,989,003 116
GMAC2820 Terra Villa Apartments 6.990 0.1263 3,000,000 2,988,259 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2460 Rite Aid - Fremont 7.000 0.1263 2,960,000 2,953,437 238
GMAC2580 Schwartz Portfolio 7.200 0.1263 2,950,000 2,922,866 235
GMAC2580-A Bell Towers - - - - -
GMAC2580-B Christopher Center - - - - -
GMAC2580-C Mantra Center - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2580-D Coventry Square - - - - -
GMAC3670 Casa Real Apartments 7.000 0.1263 2,920,000 2,915,935 118
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2550 9/10/13 10 28,051 Balloon Lock/29_Defeasance/145_0%/6 0.1263
GMAC3060 11/10/13 10 26,580 Balloon Lock/27_Defeasance/153 0.1263
GMAC1590 1/10/14 10 38,198 Fully Amortizing Lock/25_Defeasance/152_0%/3 0.1263
GMAC2800 11/1/08 1 29,183 Hyperamortizing Lock/48_Defeasance/71_0%/1 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3140 11/10/09 10 30,387 Balloon Lock/27_Defeasance/105 0.1263
GMAC2230 9/1/08 1 29,097 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC1730 9/1/08 1 24,946 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC1020 11/10/08 10 25,711 Balloon Lock/27_Defeasance/93 0.1263
GMAC4280 1/10/09 10 26,134 Balloon Lock/25_Defeasance/89_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1190 11/10/13 10 22,717 Balloon Lock/27_Defeasance/147_0%/6 0.1263
GMAC2610 11/10/18 10 27,585 Fully Amortizing Lock/27_Defeasance/213 0.1263
GMAC3440 1/10/14 10 36,723 Fully Amortizing Lock/25_Defeasance/155 0.1263
GMAC4080 12/10/08 10 24,817 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC2910 4/10/09 10 21,929 Hyperamortizing Lock/28_Defeasance/89_0%/9 0.0413
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3940 12/10/11 10 35,348 Fully Amortizing Lock/26_Defeasance/124_0%/6 0.1263
GMAC2651 9/1/08 1 27,243 Balloon Lock/29_Defeasance/84_0%/6 0.1263
GMAC3760 12/10/08 10 24,152 Balloon Lock/26_Defeasance/88_0%/6 0.1263
GMAC1780 1/10/19 10 28,645 Fully Amortizing Lock/25_Defeasance/35_0%/1 0.1263
GMAC2510 9/1/08 1 23,639 Balloon Lock/30_Defeasance/84_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1380 11/1/18 1 26,027 Fully Amortizing Lock/36_Defeasance/203_0%/1 0.1263
GMAC2190 9/10/08 10 24,428 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC1420 9/1/08 1 21,663 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC4200 1/10/09 10 22,402 Balloon Lock/25_Defeasance/95 0.1263
GMAC1910 12/10/08 10 23,348 Balloon Lock/26_Defeasance/88_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3320 10/10/08 10 21,379 Balloon Lock/28_Defeasance/92 0.1263
GMAC1070 10/10/08 10 20,170 Balloon Lock/28_Defeasance/92 0.1263
GMAC1790 10/1/08 1 19,953 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC2300 11/10/08 10 19,729 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2560 8/1/13 1 26,786 Balloon Lock/31_Defeasance/143_0%6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3010 11/10/13 10 25,880 Fully Amortizing Lock/27_Defeasance/153 0.1263
GMAC3710 12/10/08 10 20,660 Balloon Lock/26_Defeasance/94 0.1263
GMAC3710-A - - - - - -
GMAC3710-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3170 11/10/08 10 19,612 Balloon Lock/27_Defeasance/88_Lock/5 0.1263
GMAC2840 11/10/08 10 18,897 Balloon Lock/27_Defeasance/93 0.1263
GMAC1340 11/10/08 10 19,021 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2640 10/10/08 10 18,333 Balloon Lock/28_Defeasance/92 0.1263
GMAC2820 9/1/08 1 20,143 Balloon Lock/30_Defeasance/84_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2460 12/10/18 10 21,114 Balloon Lock/26_Defeasance/208_0%/6 Yes 0.1263
GMAC2580 9/10/18 10 23,413 Fully Amortizing Lock/29_Defeasance/205_0%/6 0.1263
GMAC2580-A - - - - - -
GMAC2580-B - - - - - -
GMAC2580-C - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2580-D - - - - - -
GMAC3670 12/10/08 10 19,627 Balloon Lock/26_Defeasance/94 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2480 River Ten Apartments 6.970 0.1263 2,889,000 2,877,645 115
GMAC1580 Fernwood Apartments 6.740 0.1263 2,845,000 2,845,000 114
GMAC3950 Marina Lakes Office Building 7.100 0.1263 2,850,000 2,843,618 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1130 778 Long Ridge Road Medical Office Building 6.280 0.1263 2,840,000 2,830,008 116
GMAC1180 Audubon Manor Apartments 6.850 0.1263 2,800,000 2,790,463 116
GMAC1230 Sabal Ridge Shopping Center 6.240 0.1263 2,800,000 2,790,063 176
GMAC2340 Perkins Center 6.470 0.1263 2,800,000 2,789,183 117
GMAC2900 River Walk - Uniprop NCII 6.060 0.0413 2,775,000 2,764,762 122
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1540 Eustis Plaza 6.580 0.1263 2,700,000 2,692,243 118
GMAC1030 1516 Baylis Street 6.375 0.1263 2,650,000 2,639,598 117
GMAC2400 Rancho Mill Apartments 6.600 0.1263 2,620,000 2,603,238 115
GMAC3590 Ridgewood Heights Apartments 6.950 0.1263 2,560,000 2,556,391 118
GMAC1570 Fairfield Inn by Marriott 6.500 0.1263 2,550,000 2,540,209 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2250 Pacific Care Center 7.490 0.1263 2,475,000 2,461,361 115
GMAC2790 Sugar Creek Apartments 6.125 0.1263 2,400,000 2,391,268 116
GMAC1370 Comfort Inn - Stafford, VA 7.000 0.1263 2,400,000 2,377,675 177
GMAC3500 San Souci Apartments & Esquire House Apartments 6.000 0.1263 2,300,000 2,293,476 117
GMAC3500-A Esquire House Apartments - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3500-B San Souci Apartments - - - - -
GMAC1460 Crystalaire Mobile Home Park 6.740 0.1263 2,300,000 2,290,509 115
GMAC2280 Parkview Apartments 6.470 0.1263 2,300,000 2,281,748 116
GMAC2670 Spring Plaza Office Center 7.250 0.1263 2,260,000 2,255,105 117
GMAC1510 Eastlake Apartments 6.120 0.1263 2,200,000 2,196,203 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2310 Peachtree Northeast Business Park 6.210 0.1263 2,130,000 2,124,219 117
GMAC2210 Oakdale Manor Cooperative Apartments 7.250 0.1263 2,100,000 2,098,636 119
GMAC2710 Staples Plaza 7.450 0.1263 2,100,000 2,095,657 173
GMAC1220 Bayshore Manor Office and Apartments 5.940 0.1263 2,100,000 2,092,051 176
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2410 Redmond Retirement Manor 7.560 0.1263 2,100,000 2,086,406 114
GMAC2890 Mill Run - Uniprop NCII 6.060 0.0413 2,090,000 2,082,289 122
GMAC2680 Spruce Pointe Apartments 6.030 0.1263 2,080,000 2,072,015 177
GMAC3570 Market Place Shopping Center 6.240 0.1263 2,050,000 2,029,580 117
GMAC1700 Heritage Square Shopping Center 6.875 0.1263 2,025,000 2,016,879 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4740 Eckerd's Clarksville 7.970 0.1263 2,006,513 2,000,323 235
GMAC1500 Drewbar Apartments 6.750 0.1263 2,000,000 1,997,035 118
GMAC1930 The Meadows Apartments 6.750 0.1263 2,000,000 1,995,164 177
GMAC1720 Holly Park Apartments 6.120 0.1263 2,000,000 1,992,716 116
GMAC2760 Stor-All Self Storage - Marietta 6.000 0.1263 2,000,000 1,992,526 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3220 Mission Garden Apartments 6.000 0.1263 2,000,000 1,991,645 117
GMAC1760 Karrington Care Center 6.940 0.1263 2,000,000 1,990,585 116
GMAC1390 Commerce Corner Shopping Center 6.770 0.1263 2,000,000 1,990,301 116
GMAC3930 Harrison Place Apartments 7.000 0.1263 1,920,000 1,917,327 118
GMAC4750 Eckerd's Shelbyville 7.970 0.1263 1,921,438 1,914,666 235
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4630 Heritage House Apartments 7.250 0.1263 1,880,000 1,878,778 119
GMAC1140 880 River Avenue 7.250 0.1263 1,890,000 1,876,451 116
GMAC2200 Northwood Apartments 5.830 0.1263 1,875,000 1,867,735 116
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2480 9/1/08 1 19,359 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC1580 8/10/08 10 18,619 Interest Only, Then Amortizing Lock/30_Defeasance/84_0%/6 0.1263
GMAC3950 11/10/08 10 19,351 Balloon Lock/27_Defeasance/87_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1130 10/10/08 10 17,712 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC1180 10/10/08 10 18,347 Balloon Lock/28__Defeasance/92 0.1263
GMAC1230 10/10/13 10 17,388 Balloon Lock/28_Defeasance/146_0%/6 0.1263
GMAC2340 11/10/08 10 19,017 Balloon Lock/27_Defeasance/93 0.1263
GMAC2900 4/10/09 10 16,903 Hyperamortizing Lock/28_Defeasance/89_0%/9 0.0413
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1540 12/10/08 10 19,166 Balloon Lock/26_Defeasance/88_0%/6 0.1263
GMAC1030 11/10/08 10 17,839 Balloon Lock/27_Defeasance/93 0.1263
GMAC2400 9/10/08 10 18,012 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC3590 12/10/08 10 17,120 Balloon Lock/26_Defeasance/94 0.1263
GMAC1570 12/1/08 1 19,155 Hyperamortizing Lock/36_Defeasance/80_0%/4 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2250 9/1/08 1 18,449 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC2790 10/10/08 10 14,722 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC1370 11/1/13 1 21,707 Fully Amortizing Lock/48_Defeasance/128_0%/4 0.1263
GMAC3500 11/10/08 10 13,918 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC3500-A - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3500-B - - - - - -
GMAC1460 9/1/08 1 15,052 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC2280 10/10/08 10 17,236 Balloon Lock/28_Defeasance/92_0%/0 0.1263
GMAC2670 11/10/08 10 15,578 Balloon Lock/27_Defeasance/93 0.1263
GMAC1510 12/10/08 10 13,487 Balloon Lock/26_Defeasance/88_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2310 11/10/08 10 13,184 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2210 1/10/09 10 14,475 Balloon Lock/25_Defeasance/95 0.1263
GMAC2710 7/10/13 10 17,816 Fully Amortizing Lock/25_Defeasance/143_0%/6 Yes 0.1263
GMAC1220 10/10/13 10 12,627 Balloon Lock/28_Defeasance/146_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2410 8/1/08 1 15,753 Balloon Lock/31_Defeasance/83_0%/6 0.1263
GMAC2890 4/10/09 10 12,731 Hyperamortizing Lock/28_Defeasance/89_0%/9 0.0413
GMAC2680 11/10/13 10 13,331 Balloon Lock/27_Defeasance/150_0%/3 0.1263
GMAC3570 11/10/08 10 17,666 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC1700 9/10/08 10 13,438 Balloon Lock/29_Defeasance/85_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4740 9/1/18 1 16,412 Fully Amortizing Lock/60_Defeasance/175_0%/2 Yes 0.1263
GMAC1500 12/10/08 10 13,103 Balloon Lock/26_Defeasance/94 0.1263
GMAC1930 11/10/13 10 13,102 Balloon Lock/27_Defeasance/147_0%/6 0.1263
GMAC1720 10/10/08 10 12,262 Balloon Lock/28_Defeasance/92 0.1263
GMAC2760 10/10/08 10 12,104 Balloon Lock/28_Defeasance/86_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC3220 11/10/08 10 12,992 Balloon Lock/27_Defeasance/93 0.1263
GMAC1760 10/1/08 1 14,188 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC1390 10/10/08 10 13,969 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC3930 12/10/08 10 12,906 Balloon Lock/26_Defeasance/94 0.1263
GMAC4750 9/1/18 1 16,137 Fully Amortizing Lock/60_Defeasance/175_0%/2 Yes 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4630 1/10/09 10 12,958 Balloon Lock/25_Defeasance/95 0.1263
GMAC1140 10/10/08 10 15,060 Balloon Lock/28 _Defeasance/87_0%/5 0.1263
GMAC2200 10/10/08 10 11,140 Balloon Lock/28_Defeasance/92 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC2700 St. Paul Building 7.310 0.1263 1,800,000 1,793,423 175
GMAC2850 Travelodge Hotel 6.250 0.1263 1,800,000 1,792,786 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1920 Martindale Court 5.875 0.1263 1,750,000 1,743,284 116
GMAC1270 Brittany Apartments 7.150 0.1263 1,720,000 1,717,696 118
GMAC2860 Tutor Time & Burger King 5.800 0.1263 1,720,000 1,713,294 116
GMAC2860-A Tutor Time Child Care Facility - - - - -
GMAC2860-B Burger King - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1210 Best Western Battlefield Inn 7.000 0.1263 1,700,000 1,689,811 118
GMAC3070 Walgreens-San Marcos 6.280 0.1263 1,700,000 1,677,538 176
GMAC1650 Eckerd Drug Store 6.800 0.1263 1,645,000 1,637,064 230
GMAC1330 Claremont Corporate Center I 7.375 0.1263 1,630,000 1,622,443 114
GMAC2490 RiverQuick Apartments 6.625 0.1263 1,625,000 1,618,131 115
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2150 NEI Portfolio I - Frontage Rd 7.110 0.1263 1,625,000 1,617,665 114
GMAC1010 111 Northfield Avenue Office 6.280 0.1263 1,600,000 1,598,675 119
GMAC1900 Maison Terrebonne Apartments 7.150 0.1263 1,600,000 1,596,131 118
GMAC1520 Eckerd Drug Store - Lithonia 5.730 0.1263 1,600,000 1,587,479 213
GMAC3690 360-370 East 31st Street 7.000 0.1263 1,560,000 1,558,919 119
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1890 Main Line Professional Center 7.080 0.1263 1,550,000 1,544,049 115
GMAC3420 ATC Building 7.480 0.1263 1,545,000 1,541,822 117
GMAC3920 Halliburton Center 7.500 0.1263 1,500,000 1,495,145 117
GMAC2780 Stratford Commons Apartments 6.160 0.1263 1,500,000 1,494,584 116
GMAC2420 Redwood Village Assisted Living 6.810 0.1263 1,500,000 1,494,529 177
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2770 Stor All Self Storage - Tucker 6.000 0.1263 1,500,000 1,494,394 116
GMAC1660 Eckerd Drug Store 6.540 0.1263 1,480,000 1,472,532 230
GMAC1040 15th Street Industrial 7.150 0.1263 1,425,000 1,398,600 174
GMAC1770 Kester Avenue Apartments 6.150 0.1263 1,400,000 1,397,601 118
GMAC3650 Murfreesboro Nursing Center 7.840 0.1263 1,400,000 1,397,368 118
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1810 Lakewood Apartments 6.650 0.1263 1,400,000 1,394,491 117
GMAC1670 Eckerd Drug Store 6.540 0.1263 1,385,000 1,378,012 224
GMAC1820 Lakewood Park Apartments 7.000 0.1263 1,350,000 1,343,263 114
GMAC2050 Merrill Lynch Building 6.320 0.1263 1,350,000 1,340,277 142
GMAC3780 Centennial Place Apartments 7.500 0.1263 1,341,000 1,339,362 178
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4410 Mercedes Plaza Shopping Center 7.810 0.1263 1,320,000 1,318,728 118
GMAC2350 Perkiomen Apartments 6.850 0.1263 1,300,000 1,295,572 116
GMAC1560 Fairfield Apartments 7.000 0.2513 1,270,000 1,262,397 115
GMAC2810 Tally Ho Apartments 6.500 0.1263 1,265,000 1,261,772 117
GMAC1290 Californian Apartments 6.250 0.1263 1,250,000 1,246,636 117
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2740 Stor-All Self Storage - Dunwoody 6.250 0.1263 1,200,000 1,195,750 116
GMAC1750 Jernee Mill Plaza 6.900 0.2513 1,200,000 1,195,690 117
GMAC1300 Cambridge Hills Assisted Living Center 6.600 0.1263 1,200,000 1,195,464 117
GMAC3090 Westlake Village Professional 6.750 0.1263 1,125,000 1,121,431 116
GMAC1680 Office Max Retail Store 6.800 0.1263 1,100,000 1,098,390 178
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2750 Stor All Self Storage-Lake Worth 6.000 0.1263 1,100,000 1,096,140 116
GMAC2330 PEP Boys 6.750 0.2513 1,100,000 1,095,471 115
GMAC2290 Parkview Garden Apartments 7.100 0.1263 1,100,000 1,095,024 114
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC2700 9/1/13 1 12,482 Balloon Lock/30_Defeasance/144_0%/6 0.1263
GMAC2850 1/1/09 1 11,975 Hyperamortizing Lock/48_Defeasance/70_0%/4 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1920 10/10/08 10 10,448 Balloon Lock/28_Defeasance/92 0.1263
GMAC1270 12/10/08 10 11,738 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC2860 10/10/08 10 10,185 Balloon Lock/28_Defeasance/92 0.1263
GMAC2860-A - - - - - -
GMAC2860-B - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1210 12/1/08 1 12,128 Hyperamortizing Lock/48_Defeasance/71_0%/4 0.1263
GMAC3070 10/1/13 1 14,689 Fully Amortizing Lock/29_Defeasance/145_0%/6 Yes 0.1263
GMAC1650 4/1/18 1 11,521 Balloon Lock/29_Defeasance/199_0%/6 0.1263
GMAC1330 8/10/08 10 11,258 Balloon Lock/30_Defeasance/84_0%/6 0.1263
GMAC2490 9/10/08 10 10,508 Balloon Lock/29_Defeasance/85_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2150 8/1/08 1 11,046 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
GMAC1010 1/10/09 10 9,977 Balloon Lock/25_Defeasance/95 0.1263
GMAC1900 12/10/08 10 11,462 Balloon Lock/26_Defeasance/94 0.1263
GMAC1520 11/10/16 10 11,963 Fully Amortizing Lock/27_Defeasance/183_0%/6 Yes 0.1263
GMAC3690 1/10/09 10 10,485 Balloon Lock/25_Defeasance/95 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1890 9/1/08 1 10,503 Balloon Lock/30_Defeasance/84_0%6 0.1263
GMAC3420 11/10/08 10 10,896 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC3920 11/10/08 10 11,191 Balloon Lock/27_Defeasance/87_0%/6 0.1263
GMAC2780 10/10/08 10 9,236 Balloon Lock/28_Defeasance/92 0.1263
GMAC2420 11/1/13 1 10,514 Balloon Lock/28_Defeasance/146_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2770 10/10/08 10 9,078 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC1660 4/1/18 1 10,119 Balloon Lock/29_Defeasance/199_0%/6 0.1263
GMAC1040 8/1/13 1 13,012 Fully Amortizing Lock/31_Defeasance/143_0%/6 0.1263
GMAC1770 12/10/08 10 8,611 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC3650 12/1/08 1 10,763 Balloon Lock/28_Defeasance/86_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC1810 11/10/08 10 9,585 Balloon Lock/27_Defeasance/93 0.1263
GMAC1670 10/1/17 1 9,469 Balloon Lock/29_Defeasance/193_0%/6 0.1263
GMAC1820 8/1/08 1 8,982 Balloon Lock/31_Defeasance/83_0%/6 0.1263
GMAC2050 12/10/10 10 12,195 Fully Amortizing Lock/26_Defeasance/118 Yes 0.1263
GMAC3780 12/10/13 10 9,477 Balloon Lock/26_Defeasance/154 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC4410 12/10/08 10 9,511 Balloon Lock/26_Defeasance/91_0%/3 0.1263
GMAC2350 10/10/08 10 8,518 Balloon Lock/28_Defeasance/92 0.1263
GMAC1560 9/10/08 10 9,058 Balloon Lock/29_Defeasance/85_0%/6 0.2513
GMAC2810 11/10/08 10 8,074 Balloon Lock/27_Defeasance/93 0.1263
GMAC1290 11/10/08 10 7,770 Balloon Lock/27_Defeasance/93_0%/0 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2740 10/10/08 10 7,460 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC1750 11/10/08 10 8,481 Balloon Lock/26_Defeasance/94 0.2513
GMAC1300 11/1/08 1 8,250 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC3090 10/10/08 10 7,371 Balloon Lock/28_Defeasance/86 _0%/6 0.1263
GMAC1680 12/10/13 10 7,244 Balloon Lock/26_Defeasance/148_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2750 10/10/08 10 6,595 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC2330 9/10/08 10 7,206 Balloon Lock/29_Defeasance/85_0%/6 0.2513
GMAC2290 8/1/08 1 7,470 Balloon Lock/31_Defeasance/83_0%/6 0.1263
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC1250 Bridgestone - Firestone 7.000 0.1263 1,090,000 1,079,717 235
GMAC3130 Winterhaven Apartments 5.720 0.1263 1,057,500 1,051,373 116
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2730 Decatur Stor - All 6.000 0.1263 1,000,000 996,263 116
GMAC2160 NEI Portfolio I - Roberts Street Office Bldg. 7.110 0.1263 985,000 980,554 114
GMAC1320 Chief Auto Shopping Center 7.125 0.1263 910,000 904,665 115
GMAC4780 Lakeway Apartments 7.250 0.1263 900,000 899,415 119
GMAC2130 NEI Portfolio I - Congress 7.110 0.1263 890,000 885,983 114
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2120 NEI Portfolio I - Prospect Apartments 7.110 0.1263 750,000 746,615 114
GMAC2110 NEI Portfolio I - 27 Imlay Street 7.110 0.1263 300,000 298,646 114
GMAC2140 NEI Portfolio I - Farmington 7.110 0.1263 300,000 298,646 114
1,313,693,704
<CAPTION>
Credit Servicing
Loan Maturity Due Monthly Amortization Tenant Fee
Number or ARD Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC1250 9/1/18 1 8,517 Fully Amortizing Lock/30_Defeasance/204_0%/6 Yes 0.1263
GMAC3130 10/10/08 10 6,687 Balloon Lock/28_Defeasance/86_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2730 10/10/08 10 6,052 Balloon Lock/28_Defeasance/86_0%/6 0.1263
GMAC2160 8/1/08 1 6,695 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
GMAC1320 9/10/08 10 6,565 Balloon Lock/29_Defeasance/85_0%/6 0.1263
GMAC4780 1/10/09 10 6,204 Balloon Lock/25_Defeaseance/95 0.1263
GMAC2130 8/1/08 1 6,050 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
- ------------------------------------------------------------------------------------------------------------------------------------
GMAC2120 8/1/08 1 5,098 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
GMAC2110 8/1/08 1 2,039 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
GMAC2140 8/1/08 1 2,039 Balloon (>YM or 1%)+(25%)/114_0%/6 0.1263
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee prior
to the Trustee or, if none, by the originator, without recourse, either in blank
or to the order of the Trustee in the following form: "Pay to the order of
Norwest Bank Minnesota, National Association, as trustee for the registered
holders of GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1999-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 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 copy of any related Security Agreement (if such item is
a document separate from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances
B-1
<PAGE>
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,
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;
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if any,
obtained with respect to such Mortgage Loan;
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-2
<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, except as set forth on Schedule C-1 hereto, 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
for such Mortgage Loan, 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
(subject only to any prior purchase money 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
C-1
<PAGE>
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.
(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 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).
C-2
<PAGE>
(xiii) Insurance. 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 provisions 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 Federal
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 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.
(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.
C-3
<PAGE>
(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 eleven (11) 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.
(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, except those which are insured against by the Title Policy
referred to in (vi) above.
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) Inspection. In connection with the origination or acquisition
of each Mortgage Loan, the Seller inspected or caused to be inspected the
Mortgaged Property.
(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,
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<PAGE>
permits and authorizations required by applicable laws for the ownership
and operation of the related Mortgaged Property as it was then operated.
(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 3.01(a) 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
for one of the following purposes: 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 such 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.
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<PAGE>
(xxxv) Credit Lease Loans. With respect to Loan Number GMAC 4750 and
Loan Number GMAC 1520 only, which are Credit Lease Loans:
(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 (1) 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, (2) 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), (3) no tenant has been
released, in whole or in part, from its obligations under the
Credit Leases, (4) 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 counterclaim has been asserted
with respect thereto, and (5) each Credit Lease has a term ending
on or after the final maturity of the related Credit Lease Loan;
(C) 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. 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;
C-7
<PAGE>
(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 mortgagees under
the related Credit Lease Loan; 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.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple interest in real estate or the related
Mortgage Loan is secured in whole or in part by the interest of the
Mortgagor as a lessee under a ground lease of the Mortgaged Property (a
"Ground Lease"). Any Mortgage Loan that is secured by the interest of the
Mortgagor under a Ground Lease may or may not be secured by the related fee
interest in such Mortgaged Property (the "Fee Interest"). If a Mortgage
Loan is secured in whole or in part by a Ground Lease, either (1) the
ground lessor's Fee Interest is subordinated to the lien of the Mortgage or
(2) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence
customarily performed in the origination of comparable mortgage
loans by 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;
C-8
<PAGE>
(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 the ground lessor's related fee
interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(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 under such Mortgage Loan,
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) The mortgagee under such Mortgage Loan 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 or taking, will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee under such
Mortgage Loan 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
C-9
<PAGE>
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;
(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
materially adversely affect the security provided by the related
Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement,
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.
(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 (excluding any lien relating
to another Mortgage Loan that is cross-collateralized with such Mortgage
Loan) 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.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of such Mortgage
Loan, the related Mortgaged Property, or any controlling interest therein,
is directly or indirectly transferred or sold.
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<PAGE>
(xliv) Single Purpose Entity. The related Mortgagor is an entity,
other than an individual, whose organizational documents or the related
Mortgage Loan Documents provide substantially to the effect that the
Mortgagor: (A) is formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans, (B) may not engage in any business unrelated to such Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets
other than those related to its interest in and operation of such Mortgage
Property or Mortgaged Properties, (D) may not incur indebtedness other than
as permitted by the related Mortgage or other Mortgage Loan Documents, (E)
has its own books and records separate and apart from any other person, and
(F) holds itself out as a legal entity, separate and apart from any other
person.
(xlv) 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 February 1,
1999), (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.
(xlvi) Nursing Home or Congregate Care Facility.
(A) to the Seller's knowledge, based upon due diligence customarily
performed in the origination of comparable mortgage loans as of the date of
the origination of the Mortgage Loan, the operator of the healthcare
facility located on the related Mortgaged Property had all material
licenses and permits required by applicable law for the operation and use
of such facility;
(B) to the Seller's knowledge, based upon due diligence customarily
performed in the origination of comparable mortgage loans as of the date of
the origination of the Mortgage Loan, to the extent that such facility
participates in Medicaid, Medicare, or any other similar program, the
facility is in compliance in all material respects with the requirements
for participation in such programs;
(C) the related Mortgage Loan Documents require that so long as the
related Mortgage Loan remains outstanding:
(1) the related healthcare facility shall be operated in compliance
in all material respects with all applicable laws and
regulations;
(2) the related healthcare facility shall be operated in such a
manner that the licenses and permits necessary for the use and
operation of such facility shall remain in full force and effect;
(3) without the consent of the Mortgagee under the related Mortgage
Loan, the licenses and permits pertaining to the healthcare
facility may not be: (i)
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<PAGE>
transferred by the Mortgagor, or (ii) pledged by the Mortgagor as
collateral for any other loan; or
(4) the Mortgagor may not without the consent of the Mortgagee under
the related Mortgage Loan: (i) allow to lapse all licenses and
permits necessary for the use and operation of the related
healthcare facility, (ii) grant any third party the right to
reduce the number of licensed beds at the related healthcare
facility, (iii) grant any third party the right to transfer all
or any part of any related healthcare facility's beds to another
site or location, or (iv) terminate or materially modify or amend
a lease or management contract in effect with regard to the
related healthcare facility; and
(D) to the Seller's knowledge, based upon due diligence customarily
performed in the origination of comparable mortgage loans as of the date of
the origination of the Mortgage Loan, 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.
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>
SCHEDULE C-1 to EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(v) Permitted Encumbrances
A first priority perfected security interest in accounts receivable can not
be established on the following Mortgage Loan(s).
Loan Number Property Issue
----------- -------- -----
GMAC 2440 Retirement and Nursing Center Accounts receivable
financing in favor
of Longview Bank and
Trust Co. is
permitted.
(ix) Condition of Property
Loan Number Property Issue
----------- -------- -----
GMAC 2480 River Ten Apartments The property has
experienced damage.
(xx) Valid Assignment
Loan Number Property Issue
----------- -------- -----
GMAC 1950 Meringoff Portfolio With respect to the
eight leasehold only
properties, the
lender does not have
a first priority
assignment of leases
and rents.
(xxiii) No Material Encroachments
The improvement(s) located on or forming a part of the Mortgaged Property
do not comply in all material respects with applicable zoning laws and
ordinances.
Loan Number Property Issue
----------- -------- -----
GMAC 2650-D Skyview Living Centers 50 Parking spaces
required, 38
provided.
GMAC 2130 NEI Portfolio-Congress Property to be
properly subdivided
on or before July
1999.
GMAC 2580-B Schwartz Portfolio Encroachment of
building
approximately 10
feet by 13.4 feet
onto utility
easement.
C-13
<PAGE>
GMAC 1600-A Foxfire Portfolio 218 Parking spaces
-Foxfire I required, 184 spaces
provided.
(xxxv) Credit Lease Loans
(I) Under the Credit Lease for each Credit Lease Loan, upon the occurrence
of a condemnation the Tenant will not have any rights of rent abatement.
Loan Number Property Issue
----------- -------- -----
GMAC 4750 Eckerds Drug Shelbyville As to condemnation,
the lease terminates
if entire building
taken. If a portion
of the building is
taken and if it is
no longer suitable
to the Tenant, the
Tenant may terminate
the lease and any
unearned rents
credited or paid are
refunded. If the
Lease is not
terminated, rent
shall abate
proportionately
until the building
is restored. If the
parking area is
taken and the lease
is not terminated,
rent will be abated
proportionately
until the parking
area is restored.
GMAC 1520 Eckerd DeKalb Company As to condemnation,
the lease terminates
if entire building
taken. If a portion
of the building is
taken and if it is
no longer suitable
to the Tenant, the
Tenant may terminate
the lease and any
unearned rents
credited or paid are
refunded. If the
Lease is not
terminated, rent
shall abate
proportionately
until the
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<PAGE>
building is
restored. If the
parking area is
taken and the lease
is not terminated,
rent will be abated
proportionately
until the parking
area is restored.
(xxxvii) Leasehold Estate
The following Mortgage loan(s) are secured in whole or in part by the
interest of the borrower as a lessee under a Ground Lease.
(B) The Lessee's interest in such Ground Lease is subject to a superior
interest.
Loan Number Property Issue
----------- -------- -----
GMAC 1950 Meringoff Portfolio With respect to the
eight leasehold only
properties, the
Mortgagor's
leasehold interest
is subordinate to an
existing fee
mortgage.
(I) The Ground Lease does not impose restrictions on subletting
Loan Number Property Issue
----------- -------- -----
GMAC 1430 Courtyard-Orlando Ground lease does
impose restrictions
on subletting.
(J) The Ground Lease requires the lessor to enter into a new lease with the
mortgagee upon termination of the Ground Lease for any reason, including
rejection of the Ground Lease in a bankruptcy or insolvency proceeding of
the lessee.
Loan Number Property Issue
----------- -------- -----
GMAC 1430 Courtyard-Orlando Ground lease does
not contain a
provision that
requires lessor to
enter into new lease
with Mortgagee upon
termination of
ground lease for any
reason.
(xliv) Single Purpose Entity
Borrowers on the following loan(s) are not single purpose entities.
Loan Number Property
----------- --------
GMAC 2940 Uniprop Portfolio, Fund II
GMAC 2990 Sunshine Village
GMAC 1730 Hycor Biomedical
GMAC 2330 PEP Boys
GMAC 2780 Stratford Commons Apartments
GMAC 1930 Meadow Apartments
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<PAGE>
GMAC 2810 Tally Ho Apartments
GMAC 1500 Drewbar Apartments
GMAC 3930 Harrison Place Apartments
C-16
<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 February 2, 1999
(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
February ___, 1999.
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 signature appearing above is [his] genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
February ___, 1999.
By:
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
February 2, 1999 (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 day of February, 1999.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
-------------------------------------
Name:
Title:
D-2-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
February ___, 1999
To: Persons on Annex A
Re: GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the "Seller"
or "GMACCM"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 1999-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 February 1, 1999 (the "Pooling and
Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the
"Company") as depositor, the Seller as master servicer and special servicer,
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
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 February 2, 1999 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans will be purchased by the Company from LaSalle National Bank as
Trustee for Restructured Asset Certificates With Enhanced Returns, Series
1998-ML Trust ("ML Trust") pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of February 2, 1999 (the "ML
Trust Mortgage Loan Purchase Agreement") between the Company and the ML Trust.
Certain of the Mortgage Loans will be 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 February 2, 1999
(the "GACC Mortgage Loan Purchase Agreement"), between the Depositor and GACC.
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 A-1, Class A-2, Class B, Class C, Class D,
and Class E and a portion of the Class X Certificates to Goldman, Sachs & Co.,
Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation as the underwriters (the "Underwriters") named in the Underwriting
Agreement, dated as of February 2, 1999 (the "Underwriting Agreement"), among
the Company, the Seller, and the Underwriters. The Company has sold a portion of
the Class X Certificates to GMACCM pursuant to a Class X Certificate Purchase
Agreement, dated as of February 2, 1999 (the "Class X Certificate Purchase
Agreement"), between the Company and GMACCM. The Company sold the Class F, Class
G, Class H, Class J and Class K Certificates to GMACCM pursuant to the
Certificate Purchase
D-3A-1
<PAGE>
Agreement, dated as of February 2, 1999 (the "Certificate Purchase Agreement"),
between the Company and GMACCM. The Company sold the Class R-I, Class R-II and
Class R-III Certificates to Goldman, Sachs & Co.
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. 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.
2. No consent, approval, authorization or order of a Commonwealth of
Pennsylvania or federal court or governmental agency or body is required
for the consummation by the
D-3A-2
<PAGE>
Seller of the transactions contemplated by the terms of the Agreements,
except for those consents, approvals, authorizations or orders which
previously have been obtained.
3. 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 Orrick, Herrington & Sutcliffe LLP, 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 Corporation
GMAC Commercial Mortgage Securities, Inc.
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Fitch IBCA, Inc.
Standard & Poor's Ratings Services
Norwest Bank Minnesota, National Association
Annex A-1
<PAGE>
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
Form of Opinion of Orrick, Herrington & Sutcliffe LLP
D-3B-1
Exhibit 99.2
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of February 2, 1999, 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 and Fitch IBCA 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 February 1, 1999 (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
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class C,
Class D, Class E and a portion of the Class X Certificates to Goldman, Sachs &
Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation (together, the "Underwriters") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"). The Purchaser intends to
sell a portion of the Class X Certificates to GMACCM (in such capacity, a "Class
X Certificate Purchaser") pursuant to a Class X Certificate Purchase Agreement
dated the date hereof (the "Class X Certificate Purchase Agreement"). The
Purchaser intends to sell the Class F, Class G, Class H, Class J and Class K
Certificates to GMACCM (in such capacity, an "Initial Purchaser") pursuant to a
Certificate Purchase Agreement dated the date hereof (the "Certificate Purchase
Agreement"). The Purchaser intends to sell the Class R-I, Class R-II and the
Class R-III Certificates to Goldman, Sachs & Co. (in such capacity, an "Initial
Purchaser"). The Class F, Class G, Class H, Class J, Class K, Class R-I, Class
R-II and Class R-III Certificates are collectively referred to as the
"Non-Registered Certificates."
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 February 2, 1999 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in February 1999. As of the close of business on
their respective Cut-off Dates (which Cut-off Date may occur after the Closing
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
$5,356,279, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of March 31, 1998.
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), 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 for such Mortgage Loan, 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 for each such Mortgage Loan, and all other
recoveries of principal and interest collected thereon after such Cut-off Date.
All scheduled payments of principal and interest due thereon on or before the
Cut-off Date for each Mortgage Loan and collected after such 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 to the extent that such Mortgage File was delivered to the Seller. 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) 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) 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
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<PAGE>
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.
(d) 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) Reserved.
(b) 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 to the extent necessary 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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(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)
3
<PAGE>
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
Class X Certificate Purchaser, 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 by the Seller to the
Purchaser or the consummation of any of the other transactions contemplated
hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any state securities law relating to or in
connection with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities law of
any Certificate not otherwise intended to be a Registered Certificate. In
addition, the Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or
any substantial number thereof.
(ix) 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
4
<PAGE>
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, 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.
5
<PAGE>
(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 Class X
Certificate Purchaser, 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.
(viii) 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 Purchaser with this Agreement, or the
consummation by the Purchaser 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 Purchaser under this Agreement.
(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. Reserved.
Section 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New
York, New York 10103 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the Aggregate
Cut-off Date Balance shall be within the range permitted by Section 1 of
this Agreement;
(ii) All documents specified in Section 8 (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;
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<PAGE>
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
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; and
(vi) None of the Underwriting Agreement, the Class X Certificate
Purchase Agreement or 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 C-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser, each Underwriter, the
Class X Certificate Purchaser and each Initial Purchaser 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 C-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser, each Underwriter, the
Class X Certificate Purchaser and each Initial Purchaser may rely;
(e) a written opinion of counsel for the Seller, substantially in the form
of Exhibit C-3 hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the
Purchaser, each Underwriter, the Class X Certificate Purchaser and each Initial
Purchaser;
(f) the Supplemental Agreement, substantially in the form of Exhibit D
hereto, dated as of February 2, 1999, between GMAC Commercial Mortgage
Corporation ("GMACCM") and the Seller, duly executed and delivered by GMACCM and
the Seller;
7
<PAGE>
(g) the Assignment Agreement, substantially in the form of Exhibit E
hereto, dated February 2, 1999, between the Seller and the Purchaser, duly
executed and delivered by the Seller and the Purchaser; and
(h) such further certificates, opinions and documents as the Purchaser may
reasonably request.
Section 9. Reserved.
Section 10. Reserved.
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: Eric
Schwartz, 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. Reserved.
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.
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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 BY AND CONSTRUED 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.
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.
9
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Joel C. Horne
------------------------------
Name: Joel C. Horne
Title: Vice President
By: /s/ Jon Vaccaro
------------------------------
Name: Jon Vaccaro
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ David Lazarus
------------------------------
Name: David Lazarus
Title: Vice President
10
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity Maturity
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.) or ARD
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC1240 Briarwood Apartments 8.375 0.1263 2,265,000 2,239,683 103 9/1/07
GMAC1090 Voltarc Technologies Industrial Bldg. 8.770 0.1263 3,200,000 3,116,596 104 10/1/07
<CAPTION>
Credit Servicing
Loan Due Monthly Amortization Tenant Fee
Number Property Name Date Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
GMAC1240 Briarwood Apartments 1 17,216 Balloon Lock/48_0%/72 0.1263
GMAC1090 Voltarc Technologies Industrial Bldg. 1 28,320 Balloon >1% or YM/114_0%/6 0.1263
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall 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 Norwest Bank Minnesota,
National Association, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1999-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) anoriginal 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 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 copy of any related Security Agreement (if such item
is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the
Trustee, if any;
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none,
by the
B-1
<PAGE>
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,
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) 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 personality 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
(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
B-2
<PAGE>
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-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 February 2, 1999 (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.
C-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
February __, 1999.
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 his or her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
February __, 1999.
By: __________________________________
Name:
Title:
C-1-2
<PAGE>
EXHIBIT C-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
February 2, 1999 (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 ___th day of February, 1999.
GERMAN AMERICAN CAPITAL CORPORATION
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
C-2-1
<PAGE>
EXHIBIT C-3
FORM OF OPINION I OF COUNSEL TO THE SELLER
February __, 1999
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Fitch IBCA Inc.
Standard & Poor's Ratings Services
Norwest Bank Minnesota, National Association
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
I am Director and Counsel to German American Capital Corporation (the
"Seller"). In that capacity, I am familiar with the issuance of certain Mortgage
Pass-Through Certificates, Series 1999-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 February 1, 1999 (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 and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee").
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 February 2, 1999
(the "Agreement"), between the Depositor and GACC. In connection with the
transactions described above, the Seller and GMACCM have entered into a
Supplemental Agreement, dated as of February __, 1999 (the "Supplemental
Agreement"), in order to facilitate such transactions and in contemplation of
the assignment by the Purchaser to the Depositor of all of its right, title and
interest in and to the GACC Mortgage Loan Purchase Agreement. The Agreement and
the Supplemental Agreement are referred to herein as the "Agreements."
Capitalized terms not defined herein have the meanings set forth in the
Agreement. This opinion is rendered pursuant to Section 8(e) of the Agreement.
C-3-1
<PAGE>
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 GMACCM, 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 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 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
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 Agreements.
2. The Agreements have 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.
C-3-2
<PAGE>
3. 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 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.
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,
C-3-3
<PAGE>
EXHIBIT D
FORM OF SUPPLEMENTAL AGREEMENT
<PAGE>
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective as
of February 2, 1999, between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and German American Capital Corporation as purchaser (the
"Purchaser").
WHEREAS, the Seller sold certain mortgage loans (the "GACC Mortgage Loans")
to the Purchaser pursuant to a certain Mortgage Loan Purchase Agreement (the
"GACC Purchase Agreement"), dated as of March 31, 1998.
WHEREAS, the Purchaser intends to sell certain of the GACC Mortgage Loans
as shown on Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage
Securities, Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage
Loan Purchase Agreement, dated as of February 2, 1999 (the "Mortgage Loan
Purchase Agreement") and the Depositor intends to transfer the Mortgage Loans,
together with other multifamily and commercial mortgage loans to a trust fund
(the "Trust Fund") to be formed by the Depositor, 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 and Fitch IBCA, 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 February 1, 1999 (the "Pooling
and Servicing Agreement"), among the Depositor 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
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date.
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class B,
Class C, Class D, Class E and a portion of the Class X Certificates to Goldman,
Sachs & Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation (together, the "Underwriters") pursuant to an
Underwriting Agreement dated as of the date hereof (the "Underwriting
Agreement"). The Depositor intends to sell a portion of the X Certificates to
GMAC Commercial Mortgage Corporation ("GMACCM," and in such capacity, the "Class
X Certificate Purchaser") pursuant to a Class X Certificate Purchase Agreement
dated as of the date hereof (the "Class X Certificate Purchase Agreement"). The
Depositor intends to sell the Class F, Class G, Class H, Class J and Class K
Certificates to GMACCM (in such capacity, an "Initial Purchaser") pursuant to a
Certificate Purchase Agreement dated as of the date hereof (the "Certificate
Purchase Agreement"). The Depositor intends to sell the Class R-I, Class R-II
and Class R-III Certificates to Goldman, Sachs & Co. (in such capacity, an
"Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transactions described above, desires to amend and supplement certain of the
provisions of the GACC Purchase Agreement as they relate to the Mortgage Loans
in order to facilitate such transactions
<PAGE>
and in contemplation of the assignment by the Purchaser to the Depositor of all
of its right, title and interest in and to this Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Amendment of GACC Purchase Agreement.
The parties hereto agree that, with respect to the Mortgage Loans only, the
GACC Purchase Agreement is hereby amended to the extent that the provisions of
the GACC Purchase Agreement are inconsistent with this Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of February 9, 1999 (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 Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, 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 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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(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
2
<PAGE>
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
Class X Certificate Purchaser, 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) 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) 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 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
its successors or assigns or a breach of any of the representations and
warranties made pursuant to subsection (a) above and set forth in Exhibit B
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation the Depositor, the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto or if this Agreement has been assigned, to such
assignee. The representations, warranties and covenants set forth in this
Section 2(a) shall, as between Seller and Purchaser, supplement, and as between
Seller and any successors or assigns of Purchaser, replace and amend and restate
in their entirety the representations,
3
<PAGE>
warranties and covenants of the Seller set forth in Section 4.1(a) of the GACC
Purchase Agreement to the extent they relate to the Mortgage Loans.
SECTION 3. 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 Maryland.
(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 Class X
Certificate Purchaser, the Initial Purchasers and their respective
affiliates, that may be entitled to any
4
<PAGE>
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) 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 Purchaser with this Agreement, or the
consummation by the Purchaser 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 Purchaser under this Agreement.
(b) The Purchaser 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 Seller, and its successors and assigns, with respect to
each Mortgage Loan each of the representations and warranties set forth below:
(i) Immediately prior to the transfer thereof to the Depositor, the
Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller, 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) created
by Purchaser. Such transfer validly assigns such title to such Mortgage
Loan to the Depositor free and clear of any pledge, lien, encumbrance or
security interest created by the Purchaser.
(ii) Without independent inquiry as to the provisions of the Mortgage
Loans, the Purchaser has full right and authority to sell, assign and
transfer its interest in such Mortgage Loan.
(iii) The Purchaser has not, by act or omission, done anything that
would materially impair the coverage under the lender's title insurance
policy that insures the lien of the related Mortgage.
(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note.
(v) To the best of the Purchaser's knowledge, without independent
inquiry as to the provisions of the Mortgage Loans, there is no valid
offset, defense or counterclaim to such Mortgage Loan.
(vi) The terms of the related Mortgage and the Mortgage Note have not
been impaired, waived, altered or modified by the Purchaser in any material
respect, except as specifically set forth in the related Mortgage File.
(c) 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
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<PAGE>
interests of the Seller, the party discovering such breach shall give prompt
written notice to the other party hereto.
SECTION 4. 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 as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 2(a) and set forth in
Exhibit B (a "Breach"), 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
Depositor, 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 as
in effect on the Closing Date) 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 as in effect
on the Closing Date.
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 or any successor or assign thereof, which corrected Mortgage
Loan Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
(b) Notwithstanding Section 4(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, as of the Closing Date, 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 B-1 to Exhibit B 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 B 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
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the interests of holders of Certificates, also a "Breach"), the Seller shall be
required, at its option, to either (i) cure such Breach in all material respects
or (ii) repurchase the affected Mortgage Loan, in each case, within the
applicable Permitted Cure Period. If any such 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 preceding paragraph only, the "Permitted Cure Period"
applicable to any Defect or Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Defect or Breach, as the case may be;
provided that if such Defect or 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 Breach, as the case may be, could be corrected or
cured within 180 days of the earlier of discovery by the Seller and receipt by
the Seller of notice of such Defect or 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 4, 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 or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the Purchaser,
and its successors and assigns (including, without limitation, the Depositor,
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 2(a) and set forth in Exhibit B, or in connection with the circumstances
described in Section 4(b). If the Seller defaults on its obligations to
repurchase any Mortgage Loan in accordance with Section 4(a) or 4(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. The remedies provided in
this Section 4
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shall replace and amend and restate in their entirety the provisions of Section
4.3 of the GACC Purchase Agreement with respect to the Mortgage Loans.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller 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 to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event Purchaser fails to so deliver
each such Mortgage File to the Trustee, the Seller 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.
(b) For the benefit of the Purchaser and its successors and assigns, the
Seller acknowledges and agrees that the Depositor intends to cause the Trustee
to perform a limited review of the Mortgage Files relating to the Mortgage Loans
to enable the Trustee to confirm to the Depositor on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B of the Mortgage
Loan Purchase Agreement has been delivered to the Trustee with respect to each
such Mortgage File. If the Seller cannot deliver, or cause to be delivered as to
any Mortgage Loan, the original Mortgage Note, the 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 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 of the Mortgage Loan Purchase
Agreement, 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
5 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
Depositor or Trustee within 180 days of the Closing Date (or within such longer
period after the Closing Date as the Trustee (or such subsequent owner) may
consent to, which consent shall not be unreasonably withheld so long as the
Seller has provided the Depositor or Trustee with evidence of such recording or
filing, as the case may be, or has certified to the Depositor or Trustee as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy).
(c) 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 of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued,
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<PAGE>
the delivery requirements of this Section 5 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
Depositor or 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 of the Mortgage Loan Purchase
Agreement 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.
(d) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; 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 Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. 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 7. Costs.
Costs relating to the transactions contemplated hereby and in the Mortgage
Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. 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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<PAGE>
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 9. 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 10. 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 11. 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 12. 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, to the Depositor and the Depositor 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.
SECTION 13. 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.
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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/ David Lazarus
----------------------------
Name: David Lazarus
Title: Vice President
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Joel C. Horne
----------------------------
Name: Joel C. Horne
Title: Vice President
By: /s/ Jon Vaccaro
----------------------------
Name: Jon Vaccaro
Title: Authorized Signatory
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT B
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, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Depositor, the Purchaser 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 Depositor free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Purchaser 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 Purchaser'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 attached as Exhibit A hereto 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 for
such Mortgage Loan, 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
Agreement of which this Exhibit B 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
(subject only to any prior purchase money 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 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
B-1
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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. Neither the Seller
nor the Purchaser has, 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. Neither the Seller nor the
Purchaser has 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 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. 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
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related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance provisions 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 Federal 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 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.
(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
B-3
<PAGE>
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 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) included in the Mortgage File 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, except those which are
insured against by the Title Policy referred to in (vi) above.
(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
B-4
<PAGE>
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) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(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. To the extent such facility participates in Medicaid
or Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(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 3.01(a) 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
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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 for one of the
following purposes: 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 such 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) [Reserved]
(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. Each Mortgaged Property consists of the related
Mortgagor's fee simple interest in real estate or the related Mortgage Loan is
secured in whole or in part by the interest of the Mortgagor as a lessee under a
ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage Loan
that is secured by the interest of the Mortgagor under a Ground Lease may or may
not be secured by the related fee interest in such Mortgaged Property (the "Fee
Interest"). If a Mortgage Loan is secured in whole or in part by a Ground Lease,
either
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(1) the ground lessor's Fee Interest is subordinated to the lien of the
Mortgage or (2) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence customarily
performed in the origination of comparable mortgage loans by 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 the ground lessor's related fee interest and Permitted
Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor;
(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 under such Mortgage Loan 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) The mortgagee under such Mortgage Loan 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;
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(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 under such Mortgage Loan 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;
(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
materially adversely affect the security provided by the related Mortgage;
and
(J) Such Ground Lease, or an estoppel letter or other agreement, 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.
(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 (excluding any lien relating to another Mortgage
Loan that is cross-collateralized with such Mortgage Loan) 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.
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(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.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. The related Mortgagor is an entity, other
than an individual, whose organizational documents or the related Mortgage Loan
Documents provide substantially to the effect that the Mortgagor: (A) is formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may not engage in any
business unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgage Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) 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 August 1, 1998), (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.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
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EXHIBIT E
FORM OF ASSIGNMENT
E-1
<PAGE>
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT is made on February 2, 1999 by German American
Capital Corporation, a Maryland corporation ("GACC"), to GMAC Commercial
Mortgage Securities, Inc., a Delaware corporation (the "Depositor").
WHEREAS, GMAC Commercial Mortgage Corporation ("GMACCM") sold certain
mortgage loans (the "GACC Mortgage Loans") to GACC pursuant to a certain
Mortgage Loan Purchase Agreement (the "GACC Purchase Agreement"), dated as of
March 31, 1998.
WHEREAS, GACC intends to sell certain of the GACC Mortgage Loans (the
"Mortgage Loans") to the Depositor and the Depositor intends to transfer the
Mortgage Loans, together with other multifamily and commercial mortgage loans to
a trust fund (the "Trust Fund") to be formed by the Depositor, beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of February 1, 1999 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, GMACCM as master servicer and special servicer and
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement.
WHEREAS, GMACCM and GACC, in connection with the transactions described
above, entered into a Supplemental Agreement, dated as of February 2, 1999 (the
"Supplemental Agreement"), which amended and supplemented certain of the
provisions of the GACC Purchase Agreement as they relate to the Mortgage Loans
in order to facilitate such transactions.
WHEREAS, as a condition precedent to the consummation of the transactions
described above, including, without limitation, the receipt by GACC of a ratable
portion of the proceeds of the sale of the Certificates, it is required that
GACC assign to the Depositor all of GACC's right, title and interest in and to
the Supplemental Agreement.
NOW, THEREFORE, GACC, for and in consideration of good and valuable
consideration, does hereby assign to the Depositor all of GACC's right, title
and interest in and to the Supplemental Agreement.
<PAGE>
IN WITNESS WHEREOF, GACC and the Depositor have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first written above.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Joel C. Horne
---------------------------------
Name: Joel C. Horne
Title: Vice President
By: /s/ Jon Vaccaro
---------------------------------
Name: Jon Vaccaro
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
---------------------------------
Name: David Lazarus
Title: Vice President
Acknowledged By:
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
---------------------------------
Name: David Lazarus
Title: Vice President
2
Exhibit 99.3
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of February 2, 1999, between Restructured Asset Certificates With
Enhanced Returns, Series 1998-ML Trust as seller (the "Seller"), of which
LaSalle National Bank is the trustee (in such capacity, the "Seller Trustee")
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 and Fitch IBCA 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 February 1, 1999 (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
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date (as defined below).
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class C,
Class D, Class E and a portion of the Class X Certificates to Goldman, Sachs &
Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation (together, the "Underwriters") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"). The Purchaser intends to
sell a portion of the Class X Certificates to GMACCM (in such capacity, a "Class
X Certificate Purchaser") pursuant to a Class X Certificate Purchase Agreement
dated the date hereof (the "Class X Certificate Purchase Agreement"). The
Purchaser intends to sell the Class F, Class G, Class H, Class J and Class K
Certificates to GMACCM (in such capacity, an "Initial Purchaser") pursuant to a
Certificate Purchase Agreement dated the date hereof (the "Certificate Purchase
Agreement"). The Purchaser intends to sell the Class R-I, Class R-II and the
Class R-III Certificates to Goldman, Sachs & Co. (in such capacity, an "Initial
Purchaser"). The Class F, Class G, Class H, Class J, Class K, Class R-I, Class
R-II and Class R-III Certificates are collectively referred to as the
"Non-Registered Certificates."
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 February 9, 1999 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in February 1999. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
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
$15,278,290, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of June 30, 1998.
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), 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 for each Mortgage Loan, 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 for such Mortgage Loan, and all other recoveries of
principal and interest collected thereon after such Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date for
each Mortgage Loan and collected after such 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 to the extent that such Mortgage File was delivered to the Seller.
(c) 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.
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<PAGE>
(d) 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 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) Reserved.
(b) The Seller Trustee, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller Trustee is duly organized, validly existing and in good
standing under the laws of the United States, 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
Trustee, and the performance and compliance with the terms of this
Agreement by the Seller Trustee, will not violate the Seller 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, in
each case which materially and adversely affect the ability of the Seller
Trustee to carry out the transactions contemplated by this Agreement.
(iii) The Seller Trustee 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 Trustee, enforceable against the Seller Trustee 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.
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<PAGE>
(v) The Seller Trustee 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 Trustee's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Seller
Trustee to perform its obligations under this Agreement or the financial
condition of the Seller Trustee.
(vi) No litigation is pending with regard to which Seller Trustee has
received service of process or, to the best of the Seller Trustee's
knowledge, threatened against the Seller Trustee or the Seller the outcome
of which, in the Seller Trustee's good faith and reasonable judgment, could
reasonably be expected to prohibit the Seller Trustee or the Seller from
entering into this Agreement or materially and adversely affect the ability
of the Seller Trustee or the Seller to perform its obligations under this
Agreement.
(vii) The Seller Trustee has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the Underwriters,
the Class X Certificate Purchaser, 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 by the
Seller to the Purchaser or the consummation of any of the other
transactions contemplated hereby.
(viii) Neither the Seller Trustee nor anyone acting on its behalf has
(A) offered, pledged, sold, disposed of or otherwise transferred any
Mortgage Loan, any interest in any Mortgage Loan 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 Mortgage Loan, any
interest in any Mortgage Loan or any other similar security from any person
in any manner, (C) otherwise approached or negotiated with respect to any
Mortgage Loan, any interest in any Mortgage Loan 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
Mortgage Loan, any interest in any Mortgage Loan 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 Mortgage Loans or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Mortgage Loan. In addition, the Seller Trustee 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.
(ix) 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
Trustee with this Agreement, or the consummation by the Seller Trustee 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
4
<PAGE>
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 Trustee 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, 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
5
<PAGE>
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 Class X
Certificate Purchaser, 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.
(viii) 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 Purchaser with this Agreement, or the
consummation by the Purchaser 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 Purchaser under this Agreement.
(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. Reserved.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New
York, New York 10103 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 Trustee
specified herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 (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;
6
<PAGE>
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
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; and
(vi) None of the Underwriting Agreement, the Class X Certificate
Purchase Agreement or 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 C-1
hereto, executed by the Secretary or an assistant secretary of the Seller
Trustee, and dated the Closing Date, and upon which the Purchaser, each
Underwriter, the Class X Certificate Purchaser and each Initial Purchaser may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) a certificate of the Seller substantially in the form of Exhibit C-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser, each Underwriter, the
Class X Certificate Purchaser and each Initial Purchaser may rely;
(d) written opinions of counsel for the Seller Trustee, in such form and
substance 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, each
Underwriter, the Class X Certificate Purchaser and each Initial Purchaser;
(e) the Supplemental Agreement, substantially in the form of Exhibit D
hereto, dated as of February 2, 1999, between GMAC Commercial Mortgage
Corporation ("GMACCM") and the Seller, duly executed and delivered by GMACCM and
the Seller;
(f) the Assignment Agreement, substantially in the form of Exhibit E
hereto, dated February 2, 1999, between the Seller and the Purchaser, duly
executed and delivered by the Seller and the Purchaser;
7
<PAGE>
(g) the Indemnification Agreement, substantially in the form of Exhibit F
hereto, dated as of February 2, 1999, between GMACCM and Lehman Ali, Inc., duly
executed and delivered by GMACCM and Lehman Ali, Inc.; and
(h) such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Reserved.
SECTION 10. Reserved.
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 Lehman ALI Inc. as Sponsor and
LaSalle National Bank as Trustee for Restructured Asset Certificates With
Enhanced Returns, Series 1998-ML Trust, at 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60674-4107 Attention: RACERS Series 1998-ML, facsimile no.
(312) 904-2084, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. Reserved.
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 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.
8
<PAGE>
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 BY AND CONSTRUED 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.
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.
9
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
RESTRUCTURED ASSET CERTIFICATES WITH
ENHANCED RETURNS, SERIES 1998-ML TRUST
By: LaSalle National Bank, not in its
individual capacity, but solely as
trustee under the Trust Agreement, dated
as of June 26, 1998, as amended and
restated, between Lehman Ali Inc., as
sponsor, and LaSalle National Bank, as
trustee.
By: /s/ Barbara A. Wolf
----------------------------------------
Name: Barbara Wolf
Title: Assistant Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
<TABLE>
<CAPTION>
Remaining
Servicing Term to
Loan Mortgage Fee Original Cut-off Date Maturity Maturity Due
Number Property Name Rate (%) Rate (%) Balance ($) Balance ($) (Mos.) or ARD Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
GMAC1430 Courtyard by Marriott - Orlando 7.875 0.1263 6,000,000 5,944,261 114 8/1/08 1
GMAC1440 Courtyard by Marriott - Sugarland 7.500 0.1263 5,300,000 5,234,958 109 3/1/08 1
GMAC2430 Residence Inn by Marriott - Sugarland 7.500 0.1263 4,150,000 4,099,071 109 3/1/08 1
<CAPTION>
Credit Servicing
Loan Monthly Amortization Tenant Fee
Number Property Name Payment ($) Type Prepayment Provisions Lease Rate (%)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
GMAC1430 Courtyard by Marriott - Orlando 46,278 Hyperamortizing Lock/48_Defeasance/71_0%/4 0.1263
GMAC1440 Courtyard by Marriott - Sugarland 39,553 Hyperamortizing Lock/48_Defeasance/66_0%/6 0.1263
GMAC2430 Residence Inn by Marriott - Sugarland 30,971 Hyperamortizing Lock/48_Defeasance/66_0%/6 0.1263
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall 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 Norwest Bank Minnesota,
National Association, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1999-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 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 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
B-1
<PAGE>
(vii) 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;
(viii) 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;
(ix) 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;
(x) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that
were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the
Mortgaged Property;
(xi) 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;
(xii) (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;
B-2
<PAGE>
(xiii) 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; and
(xiv) 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-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER TRUSTEE
Certificate of LaSalle National Bank
I, ____________________, a Trust Administrator of LaSalle National Bank,
not in its individual capacity but solely as trustee (in such capacity, the
"Seller Trustee") for the Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust (the "Seller"), hereby certify as follows:
The Seller Trustee is duly organized and validly existing under the laws of
the United States.
Attached hereto as Exhibit I is a true and correct copy of the Amended and
Restated Trust Agreement of the Seller, which Amended and Restated Trust
Agreement is on the date hereof, and has been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of LaSalle National Bank, in its capacity as
Seller Trustee 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 February 2, 1999 (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.
C-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
February __, 1999.
By: _____________________________________
Name:
Title:
I, _____________________, hereby certify that ____________________ is a
duly elected or appointed, as the case may be, qualified and acting
_______________ of LaSalle National Bank and that the signatures appearing above
is his or her genuine signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
February __, 1999.
By: _____________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT C-2
FORM OF CERTIFICATE OF THE SELLER TRUSTEE
Certificate of LaSalle National Bank
In connection with the execution and delivery by Restructured Asset Certificates
With Enhanced Returns, Series 1998-ML Trust (the "Seller") of, and the
consummation of the transaction contemplated by, that certain Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "Purchase Agreement"),
between GMAC Commercial Mortgage Securities, Inc. and the Seller, the Seller
Trustee hereby certifies that (i) the representations and warranties of the
Seller Trustee 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 __th day of February, 1999.
LASALLE NATIONAL BANK, not in
its individual capacity, but solely as
trustee of the Restructured Asset
Certificates With Enhanced Returns,
Series 1998-ML Trust.
By: ____________________________________
Name:
Title:
C-3
<PAGE>
EXHIBIT D
FORM OF SUPPLEMENTAL AGREEMENT
D-1
<PAGE>
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective as
of February 2, 1999, between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and Restructured Asset Certificates with Enhanced Returns, Series
1998-ML Trust as purchaser (the "Purchaser"), of which LaSalle National Bank is
the trustee (in such capacity, the "Purchaser Trustee").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser pursuant
to a certain Mortgage Loan Purchase Agreement (the "ML Trust Purchase
Agreement"), dated as of June 30, 1998.
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto ("the Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Depositor, 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. and Fitch IBCA, 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 February 1, 1999 (the "Pooling
and Servicing Agreement"), among the Depositor 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
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date (as defined below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class B,
Class C, Class D, Class E and a portion of the Class X Certificates to Goldman,
Sachs & Co., Deutsche Bank Securities Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation (together, the "Underwriters") pursuant to an
Underwriting Agreement dated as of the date hereof (the "Underwriting
Agreement"). The Depositor intends to sell a portion of the X Certificates to
GMAC Commercial Mortgage Corporation ("GMACCM," and in such capacity, the "Class
X Certificate Purchaser") pursuant to a Class X Certificate Purchase Agreement
dated as of the date hereof (the "Class X Certificate Purchase Agreement"). The
Depositor intends to sell the Class F, Class G, Class H, Class J and Class K
Certificates to GMACCM (in such capacity, an "Initial Purchaser") pursuant to a
Certificate Purchase Agreement dated as of the date hereof (the "Certificate
Purchase Agreement"). The Depositor intends to sell the Class R-I, Class R-II
and Class R-III Certificates to Goldman, Sachs & Co. (in such capacity, an
"Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transactions described above, desires to amend and supplement certain of the
provisions of the ML Trust Purchase Agreement as they relate to the Mortgage
Loans in order to facilitate such transactions
<PAGE>
and in contemplation of the assignment by the Purchaser to the Depositor of all
of its right, title and interest in and to this Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Amendment of ML Trust Purchase Agreement.
The parties hereto agree that, with respect to the Mortgage Loans only, the
ML Trust Purchase Agreement is hereby amended to the extent that the provisions
of the ML Trust Purchase Agreement are inconsistent with this Agreement.
Section 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of February 9, 1999 (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 Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, 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 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, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(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
2
<PAGE>
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
Class X Certificate Purchaser, 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) 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) 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 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
its successors or assigns or a breach of any of the representations and
warranties made pursuant to subsection (a) above and set forth in Exhibit B
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation the Depositor, the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto or if this Agreement is assigned, to such
assignee. The representations, warranties and covenants set forth in this
Section 2(a) shall replace and amend and restate in their entirety the
representations, warranties and covenants of the Seller set forth in Section
4.1(a) of the ML Trust Purchase Agreement to the extent they relate to the
Mortgage Loans.
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SECTION 3. Representations, Warranties and Covenants of the Purchaser Trustee.
(a) The Purchaser Trustee, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser Trustee is duly organized, validly existing and in
good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Purchaser
Trustee, and the performance and compliance with the terms of this
Agreement by the Purchaser Trustee, will not violate the Purchaser
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) The Purchaser Trustee 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 Trustee, enforceable against the Purchaser Trustee 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 Trustee 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 Trustee's good faith and reasonable judgment,
is likely to affect materially and adversely either the ability of the
Purchaser Trustee to perform its obligations under this Agreement or the
financial condition of the Purchaser Trustee.
(vi) No litigation is pending or, to the best of the Purchaser
Trustee's knowledge, threatened against the Purchaser Trustee or the
Purchaser which would prohibit the Purchaser Trustee or the Purchaser from
entering into this Agreement or, in the Purchaser Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Purchaser Trustee or the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser Trustee or the Purchaser.
(vii) The Purchaser Trustee has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Class X Certificate Purchaser, the Initial Purchasers and their respective
affiliates, that may be entitled to any
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<PAGE>
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) 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 Purchaser Trustee with this Agreement,
or the consummation by the Purchaser Trustee 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 Purchaser Trustee under
this Agreement.
(b) The Purchaser 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 Seller, and its successor and assigns, with respect to
each Mortgage Loan each of the representations and warranties set forth below
with such changes or modifications as may be permitted or required by the Rating
Agencies:
(i) Immediately prior to the transfer thereof to the Depositor, to the
Purchaser's knowledge, the Purchaser had whatever title to such Mortgage
Loan as was conveyed to it by Seller, 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 such title to such Mortgage
Loan to the Depositor free and clear of any pledge, lien, encumbrance or
security interest executed by the Purchaser.
(ii) The Purchaser has full right and authority to sell, assign and
transfer its interest in such Mortgage Loan.
(iii) To the Purchaser's knowledge, the Purchaser has not, by act or
omission, done anything that would materially impair the coverage under the
lender's title insurance policy that insures the lien of the related
Mortgage.
(iv) To the Purchaser's knowledge, the Purchaser has not waived any
material default, breach, violation or event of acceleration existing under
the related Mortgage or Mortgage Note.
(v) To the Purchaser's knowledge, there is no valid offset, defense or
counterclaim to such Mortgage Loan.
(vi) To the Purchaser's knowledge, the terms of the related Mortgage
and the Mortgage Note have not been impaired, waived, altered or modified
by the Purchaser in any material respect, except as specifically set forth
in the related Mortgage File.
(c) 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
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<PAGE>
interests of the Seller, the party discovering such breach shall give prompt
written notice to the other party hereto.
SECTION 4. 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 as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 2(a) and set forth in
Exhibit B (a "Breach"), 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
Depositor, 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 as
in effect on the Closing Date) 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 as in effect
on the Closing Date.
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 4(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, as of the Closing Date, 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 B-1 to Exhibit B 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 B 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
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<PAGE>
the interests of holders of Certificates, also a "Breach"), the Seller shall be
required, at its option, to either (i) cure such Breach in all material respects
or (ii) repurchase the affected Mortgage Loan, in each case, within the
applicable Permitted Cure Period. If any such 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 preceding paragraph only, the "Permitted Cure Period"
applicable to any Defect or Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Defect or Breach, as the case may be;
provided that if such Defect or 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 Breach, as the case may be, could be corrected or
cured within 180 days of the earlier of discovery by the Seller and receipt by
the Seller of notice of such Defect or 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 4, 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 or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the Purchaser,
and its successors and assigns (including, without limitation, the Depositor,
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 2(a) and set forth in Exhibit B, or in connection with the circumstances
described in Section 4(b). If the Seller defaults on its obligations to
repurchase any Mortgage Loan in accordance with Section 4(a) or 4(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. The remedies provided in
this Section 4
7
<PAGE>
shall replace and amend and restate in their entirety the provisions of Section
4.3 of the ML Trust Purchase Agreement.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller 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 to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event Purchaser fails to so deliver
each such Mortgage File to the Trustee, the Seller 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.
(b) For the benefit of the Purchaser and its successors and assigns, the
Seller acknowledges and agrees that the Depositor intends to cause the Trustee
to perform a limited review of the Mortgage Files relating to the Mortgage Loans
to enable the Trustee to confirm to the Depositor on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B of the Mortgage
Loan Purchase Agreement has been delivered to the Trustee with respect to each
such Mortgage File. If the Seller cannot deliver, or cause to be delivered as to
any Mortgage Loan, the original Mortgage Note, the 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 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 of the Mortgage Loan Purchase
Agreement, 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
5 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
Depositor or Trustee within 180 days of the Closing Date (or within such longer
period after the Closing Date as the Trustee (or such subsequent owner) may
consent to, which consent shall not be unreasonably withheld so long as the
Seller has provided the Depositor or Trustee with evidence of such recording or
filing, as the case may be, or has certified to the Depositor or Trustee as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy).
(c) 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 of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued,
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<PAGE>
the delivery requirements of this Section 5 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
Depositor or 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 of the Mortgage Loan Purchase
Agreement 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.
(d) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; 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 Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. 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 7. Costs.
Costs relating to the transactions contemplated hereby and in the Mortgage
Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. 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 9. 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 10. 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 11. 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 12. 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, to the Depositor and the Depositor 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.
SECTION 13. 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.
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5
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/ David Lazarus
---------------------------
Name: David Lazarus
Title: Vice President
RESTRUCTURED ASSET CERTIFICATES WITH ENHANCED
RETURNS, SERIES 1998-ML TRUST
By: LaSalle National Bank, not in its
individual capacity, but solely as
trustee under the Trust Agreement, as
amended and restated, dated as of June
26, 1998, between Lehman Ali Inc., as
sponsor, and LaSalle National Bank, as
trustee
By: /s/ Barbara Wolf
---------------------------
Name: Barbara Wolf
Title: Assistant Vice President
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT B
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, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Depositor, the Purchaser 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 Depositor free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Purchaser 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 Purchaser'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 attached as Exhibit A hereto 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 for
such Mortgage Loan, 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
Agreement of which this Exhibit B 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
(subject only to any prior purchase money 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 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
<PAGE>
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. Neither the Seller
nor the Purchaser has, 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. Neither the Seller nor the
Purchaser has 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 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. 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
B-2
<PAGE>
related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance provisions 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 Federal 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 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.
(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
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<PAGE>
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
two 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 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) included in the Mortgage File 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, except those which are
insured against by the Title Policy referred to in (vi) above.
(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).
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<PAGE>
(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) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(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. To the extent such facility participates in Medicaid
or Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(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 3.01(a) 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
B-5
<PAGE>
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 for one of the
following purposes: 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 such 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) [Reserved]
(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. Each Mortgaged Property consists of the related
Mortgagor's fee simple interest in real estate or the related Mortgage Loan is
secured in whole or in part by the interest of the Mortgagor as a lessee under a
ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage Loan
that is secured by the interest of the Mortgagor under a Ground Lease may or may
not be secured by the related fee interest in such
B-6
<PAGE>
Mortgaged Property (the "Fee Interest"). If a Mortgage Loan is secured in whole
or in part by a Ground Lease, either (1) the ground lessor's Fee Interest is
subordinated to the lien of the Mortgage or (2) the following apply to such
Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence
customarily performed in the origination of comparable mortgage loans
by 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 the ground lessor's related fee interest and
Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(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 under such
Mortgage Loan 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) The mortgagee under such Mortgage Loan 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;
B-7
<PAGE>
(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 under such Mortgage Loan 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;
(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 materially adversely affect the security provided
by the related Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement 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.
B-8
<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 (excluding any lien relating to another Mortgage
Loan that is cross-collateralized with such Mortgage Loan) 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.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. The Mortgagor is an entity, other than an
individual, whose organizational documents or the related Mortgage Loan
Documents provide substantially to the effect that the Mortgagor: (A) is formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may not engage in any
business unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgage Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) 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 August 1, 1998), (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.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
B-9
<PAGE>
EXHIBIT E
FORM OF ASSIGNMENT
<PAGE>
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT is made on February 2, 1999 by Restructured
Asset Certificates with Enhanced Returns, Series 1998-ML Trust, a New York trust
("ML Trust"), to GMAC Commercial Mortgage Securities, Inc., a Delaware
corporation (the "Depositor").
WHEREAS, GMAC Commercial Mortgage Corporation ("GMACCM") sold certain
mortgage loans (the "Mortgage Loans") to ML Trust pursuant to a certain Mortgage
Loan Purchase Agreement (the "ML Trust Purchase Agreement"), dated as of June
30, 1998.
WHEREAS, ML Trust intends to sell the Mortgage Loans to the Depositor and
the Depositor intends to transfer the Mortgage Loans, together with other
multifamily and commercial mortgage loans to a trust fund (the "Trust Fund") to
be formed by the Depositor, beneficial ownership of which will be evidenced by a
series of mortgage pass-through certificates (the "Certificates"). The Trust
Fund will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of February 1, 1999 (the "Pooling and
Servicing Agreement"), among the Depositor as depositor, GMACCM as master
servicer and special servicer and Norwest Bank Minnesota, National Association,
as trustee (in such capacity, the "Trustee"). Capitalized terms not otherwise
defined herein have the meanings assigned to them in the Pooling and Servicing
Agreement.
WHEREAS, GMACCM and ML Trust, in connection with the transactions described
above, entered into a Supplemental Agreement, dated as of February 2, 1999 (the
"Supplemental Agreement"), which amended and supplemented certain of the
provisions of the ML Trust Purchase Agreement as they relate to the Mortgage
Loans in order to facilitate such transactions.
WHEREAS, as a condition precedent to the consummation of the transactions
described above, including, without limitation, the receipt by ML Trust of a
ratable portion of the proceeds of the sale of the Certificates, it is required
that ML Trust assign to the Depositor all of ML Trust's right, title and
interest in and to the Supplemental Agreement.
NOW, THEREFORE, ML Trust, for and in consideration of good and valuable
consideration, does hereby assign to the Depositor all of ML Trust's right,
title and interest in and to the Supplemental Agreement.
<PAGE>
IN WITNESS WHEREOF, ML Trust and the Depositor have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first written above.
RESTRUCTURED ASSET CERTIFICATES WITH ENHANCED
RETURNS, SERIES 1998-ML TRUST
By: LaSalle National Bank, not in its
individual capacity, but solely as
trustee under the trust agreement, dated
as of June 26, 1998, as amended and
restated, between Lehman Ali Inc., as
sponsor, and LaSalle National Bank, as
trustee
By: /s/ Barbara Wolf
---------------------------------------
Name: Barbara Wolf
Title: Assistant Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
---------------------------------------
Name: David Lazarus
Title: Vice President
Acknowledged By:
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
---------------------------------------
Name: David Lazarus
Title: Vice President
<PAGE>
EXHIBIT F
FORM OF INDEMNIFICATION AGREEMENT
F-1
<PAGE>
INDEMNIFICATION AGREEMENT
GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1999-C1
WHEREAS, GMAC Commercial Mortgage Corporation ("GMACCM") sold certain
mortgage loans (the "Mortgage Loans") to Restructured Asset Certificates with
Enhanced Returns, Series 1998-ML Trust (the "ML Trust") pursuant to a certain
Mortgage Loan Purchase Agreement (the "ML Trust Purchase Agreement"), dated as
of June 30, 1998.
WHEREAS, ML Trust intends to sell the Mortgage Loans to GMAC Commercial
Mortgage Securities, Inc. (the "Depositor") and the Depositor intends to
transfer the Mortgage Loans, together with other multifamily and commercial
mortgage loans to a trust fund (the "Trust Fund") to be formed by the Depositor,
beneficial ownership of which will be evidenced by a series of mortgage
pass-through certificates (the "Certificates"). The Trust Fund will be created
and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), among the Depositor, as depositor, GMACCM, as master servicer and
special servicer, and Norwest Bank Minnesota, National Association, as trustee
(in such capacity, the "Trustee"). Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Pooling and Servicing
Agreement.
WHEREAS, GMACCM and ML Trust, in connection with the transactions described
above, entered into a Supplemental Agreement, dated as of February 2, 1999 (the
"Supplemental Agreement"), which amended and supplemented certain of the
provisions of the ML Trust Purchase Agreement as they relate to the Mortgage
Loans in order to facilitate such transactions.
WHEREAS, ML Trust will assign to the Depositor all of ML Trust's right,
title and interest in and to the Supplemental Agreement.
WHEREAS, as a condition precedent to the consummation of the transactions
described above, including, without limitation, the receipt by ML Trust of a
ratable portion of the proceeds of the sale of the Certificates, it is required
that Lehman ALI, Inc. ("Lehman"), indemnify GMACCM for any losses relating to
the breach of certain representations and warranties of ML Trust in the
Supplemental Agreement.
NOW THEREFORE, in consideration of the agreements contained herein, and
other valuable consideration, Lehman and GMACCM agree as follows:
1. Indemnification and Contribution. (a) Lehman agrees to indemnify and
hold harmless GMACCM and each person who controls GMACCM within the meaning of
either the Securities Act of 1933, as amended (the "Securities Act") or 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 it
may become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon the breach of any of
ML Trust's representations or warranties contained in any of clauses (i) or (ii)
of Section
<PAGE>
3(b) of the Supplemental Agreement. This indemnity will be in addition to any
liability which ML Trust may otherwise have.
(b) Promptly after receipt by an indemnified party under this Section 1 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 1, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 1. 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 reasonably satisfactory to such
indemnified party; provided 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 which 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 so to assume the
defense of such action and approval by the indemnified party of counsel (which
approval shall not be reasonably withheld), the indemnifying party will not be
liable to such indemnified party for expenses incurred by the 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 immediately preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel in each jurisdiction), (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 in writing 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 be only in respect of the counsel referred
to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section I shall for any
reason be unavailable to, or insufficient to hold harmless an indemnified party
in accordance with its terms to an indemnified party under this Section 1, then
Lehman on the one hand and GMACCM on the other shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect of) referred to in subsection (a)
or (b) above, in such proportion as is appropriate to reflect the relative fault
of ML Trust, on the one hand, and GMACCM on the other, in connection with the
breach of representation and warranty that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the breach of representation or warranty relates to information supplied
by ML Trust or GMACCM and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such breach of representation
or warranty. Lehman and GMACCM agree that it would not be just and equitable if
contributions pursuant to this subsection (c) were to be
<PAGE>
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in the first
sentence of this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this Section 1, subject to the limitations therein provided under this
subsection (c). 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 also guilty of such fraudulent
misrepresentation.
2. 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 GMACCM, 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 the General
Counsel, GMAC Commercial Mortgage Corporation, or such other address or
facsimile number as may hereafter be furnished to Lehman in writing by GMACCM;
and if to Lehman, addressed to Lehman ALI, Inc., at Three World Financial
Center, New York, New York 10288, facsimile no. (212) 526-6139, confirmation
number (212) 526-9605, or to such other address or facsimile number as Lehman
may designate in writing to GMACCM.
3. 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.
4. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meaning set forth in the Pooling and Servicing Agreement.
5. Miscellaneous. This Indemnification Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. This
Indemnification Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Indemnification Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Indemnification Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument. Any person into which Lehman may be merged, consolidated or
converted, or any corporation resulting from any merger or consolidation to
which Lehman shall be a party, or any person succeeding to the business of
Lehman, shall be the successor of Lehman, 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed by their respective officers hereunto duly
authorized, this 2nd day of February, 1999.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ David Lazarus
--------------------------------
Name: David Lazarus
Title: Vice President
LEHMAN ALI, INC.
By: /s/ Yon Cho
--------------------------------
Name: Yon Cho
Title: Vice President
