SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1 TO CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: October 29, 1998
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(Date of earliest event reported)
GS Mortgage Securities Corporation II
Commercial Pass Through Certificates, Series 1998-C1
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(Exact name of registrant as specified in its charter)
Delaware 333-40939 22-3442024
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
85 Broad Street, New York, N.Y. 10004
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 902-1000
<PAGE>
Item 5. Other Events.
Attached as Exhibit 4 is the Pooling and Servicing Agreement (as defined
below) for the GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1 (the "Certificates"). On October 29,
1998, GS Mortgage Securities Corporation II (the "Company") caused the issuance,
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1998 (the
"Pooling and Servicing Agreement"), by and among the Company, as seller, Goldman
Sachs Mortgage Company, as responsible party, Falcon Financial, LLC, as
responsible party, AMRESCO Capital Limited, Inc., as responsible party, AMRESCO
Commercial Mortgage Funding, L.P., as responsible party, GMAC Commercial
Mortgage Corporation, as master servicer and special servicer, LaSalle National
Bank, as trustee, and ABN AMRO BANK N.V., as fiscal agent, of the Certificates,
issued in sixteen classes. The Class A-1, Class A-2, Class A-3, Class X, Class
B, Class C, Class D and Class E Certificates (the "Publicly Offered
Certificates"), with an aggregate principal balance as of October 11, 1998 (the
"Cut-Off Date") of $1,861,517,825, were sold to Goldman, Sachs & Co. ("GS&Co.")
pursuant to an Underwriting Agreement, dated October 26, 1998, by and between
GS&Co., as underwriter, and the Company.
Attached as Exhibit 8 is the opinion of Cadwalader, Wickersham & Taft,
special tax counsel to the Company, regarding tax matters (the "Tax Matters
Opinion"), provided in connection with the issuance of the Certificates.
Capitalized terms used herein and not defined herein have the same meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit 4 Pooling and Servicing Agreement
Exhibit 8 Tax Matters Opinion
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
GS MORTGAGE SECURITIES CORPORATION II
By: /s/ Jay Strauss
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Name: Jay Strauss
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Title: Secretary
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Date: November 23, 1998
<PAGE>
Exhibit Index
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Item 601(a) of Regulation
S-K Exhibit No. Description
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4 Pooling and Servicing Agreement
8 Tax Matters Opinion
GS MORTGAGE SECURITIES CORPORATION II,
Seller,
GOLDMAN SACHS MORTGAGE COMPANY,
Responsible Party,
FALCON FINANCIAL, LLC,
Responsible Party,
AMRESCO CAPITAL LIMITED, INC.,
Responsible Party,
AMRESCO COMMERCIAL MORTGAGE FUNDING, L.P.,
Responsible Party,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer,
LASALLE NATIONAL BANK,
Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent
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POOLING AND SERVICING AGREEMENT
Dated as of October 11, 1998
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................
SECTION 1.01 Defined Terms...............................................
SECTION 1.02 Certain Calculations........................................
SECTION 1.03 Certain Constructions.......................................
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.....
SECTION 2.01 Conveyance of Mortgage Loans................................
SECTION 2.02 Acceptance by Custodian and the Trustees....................
SECTION 2.03 Representations and Warranties of the Seller
and the Responsible Parties...............................
SECTION 2.04 Representations, Warranties and Covenants
of the Master Servicer and Special Servicer...............
SECTION 2.05 Execution and Delivery of Certificates;
Issuance of Lower-Tier Regular Interests..................
SECTION 2.06 Miscellaneous REMIC and Grantor Trust Provisions............
ARTICLE III ADMINISTRATION AND SERVICING OF
THE MORTGAGE LOANS........................................
SECTION 3.01 Master Servicer to Act as Master Servicer;
Administration of the Mortgage Loans......................
SECTION 3.02 Liability of the Master Servicer and Special Servicer.......
SECTION 3.03 Collection of Certain Mortgage Loan Payments................
SECTION 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...........................................
SECTION 3.05 Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution
Account; Excess Interest Distribution Account;
Payment Reserve Account..................................
SECTION 3.06 Permitted Withdrawals from the Collection Account...........
SECTION 3.07 Investment of Funds in the Collection Account,
the REO Account, the Interest Reserve Account,
the Borrower Accounts, and Other Accounts.................
SECTION 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage...........................
SECTION 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions.........................
SECTION 3.10 Realization Upon Defaulted Mortgage Loans...................
SECTION 3.11 Trustee to Cooperate; Release of Mortgage Files.............
SECTION 3.12 Servicing Fees, Trustee Fees and Special
Servicing Compensation....................................
SECTION 3.13 Reports to the Trustee; Collection Account Statements.......
SECTION 3.14 Annual Statement as to Compliance...........................
SECTION 3.15 Annual Independent Public Accountants' Servicing Report.....
SECTION 3.16 Access to Certain Documentation.............................
SECTION 3.17 Title and Management of REO Properties......................
SECTION 3.18 Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19 Additional Obligations of the Master Servicer; Inspections..
SECTION 3.20 Reports to the Securities and Exchange Commission;
Available Information.....................................
SECTION 3.21 Lock-Box Accounts, Escrow Accounts and Reserve Accounts.....
SECTION 3.22 Property Advances...........................................
SECTION 3.23 Appointment of Special Servicer.............................
SECTION 3.24 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping..........................
SECTION 3.25 Interest Reserve Account....................................
SECTION 3.26 Limitations on and Authorizations of the
Master Servicer and Special Servicer with Respect
to Specific Mortgage Loans................................
SECTION 3.27 Modifications, Waivers and Amendments.......................
SECTION 3.28 The Healthcare Adviser......................................
ARTICLE IV DISTRIBUTIONS TO CERTIFICATEHOLDERS.................................
SECTION 4.01 Distributions...............................................
SECTION 4.02 Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher.......
SECTION 4.03 Compliance with Withholding Requirements....................
SECTION 4.04 REMIC Compliance............................................
SECTION 4.05 Imposition of Tax on the Trust Fund.........................
SECTION 4.06 Remittances; P&I Advances...................................
SECTION 4.07 Grantor Trust Reporting.....................................
SECTION 4.08 Reinvestment Enhancement Instrument;
Reinvestment Reserve Account..............................
ARTICLE V THE CERTIFICATES.....................................................
SECTION 5.01 The Certificates............................................
SECTION 5.02 Registration, Transfer and Exchange of Certificates.........
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........
SECTION 5.04 Appointment of Paying Agent.................................
SECTION 5.05 Access to Certificateholders' Names and Addresses...........
SECTION 5.06 Actions of Certificateholders...............................
SECTION 5.07 Authenticating Agent........................................
SECTION 5.08 Appointment of Custodians...................................
ARTICLE VI THE SELLER, THE MASTER SERVICER AND THE SPECIAL SERVICER............
SECTION 6.01 Liability of the Seller, the Master Servicer and
the Special Servicer......................................
SECTION 6.02 Merger or Consolidation of the Master Servicer and
the Special Servicer......................................
SECTION 6.03 Limitation on Liability of the Seller, the Master
Servicer and Others.......................................
SECTION 6.04 Limitation on Resignation of the Master Servicer
or Special Servicer.......................................
SECTION 6.05 Rights of the Seller and the Trustee in Respect of the
Master Servicer and Special Servicer......................
SECTION 6.06 Master Servicer or Special Servicer as Owner
of a Certificate..........................................
ARTICLE VII DEFAULT 157
SECTION 7.01 Events of Default...........................................
SECTION 7.02 Trustee to Act; Appointment of Successor....................
SECTION 7.03 Notification to Certificateholders..........................
SECTION 7.04 Other Remedies of Trustee...................................
SECTION 7.05 Waiver of Past Events of Default; Termination...............
ARTICLE VIII CONCERNING THE TRUSTEE............................................
SECTION 8.01 Duties of Trustee...........................................
SECTION 8.02 Certain Matters Affecting the Trustee.......................
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
SECTION 8.04 Trustee May Own Certificates................................
SECTION 8.05 Payment of Trustee Fees and Expenses; Indemnification.......
SECTION 8.06 Eligibility Requirements for Trustee........................
SECTION 8.07 Resignation and Removal of the Trustee......................
SECTION 8.08 Successor Trustee and Fiscal Agent..........................
SECTION 8.09 Merger and Consolidation of Trustee.........................
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee...............
SECTION 8.11 Fiscal Agent Appointed; Concerning the Fiscal Agent.........
SECTION 8.12 Controlling Certificateholders and Controlling
Class Representative......................................
ARTICLE IX TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE........................
SECTION 9.01 Termination; Optional Mortgage Loan Purchase................
ARTICLE X MISCELLANEOUS PROVISIONS.............................................
SECTION 10.01 Counterparts...............................................
SECTION 10.02 Limitation on Rights of Certificateholders.................
SECTION 10.03 Governing Law..............................................
SECTION 10.04 Notices....................................................
SECTION 10.05 Severability of Provisions.................................
SECTION 10.06 Notice to the Seller and Each Rating Agency................
SECTION 10.07 Amendment..................................................
SECTION 10.08 Confirmation of Intent.....................................
SECTION 10.09 No Intended Third-Party Beneficiaries......................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class X Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class F Certificate
Exhibit A-10 Form of Class G Certificate
Exhibit A-11 Form of Class H Certificate
Exhibit A-12 Form of Class J Certificate
Exhibit A-13 Form of Class K Certificate
Exhibit A-14 Form of Class Q Certificate
Exhibit A-15 Form of Class R Certificate
Exhibit A-16 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G [Reserved]
Exhibit H [Reserved]
Exhibit I Form of Summary Report
Exhibit J Form of Monthly Distribution Statement
Exhibit K-1 Form of Regulation S Transfer Certificate for Transfers during
Restricted Period
Exhibit K-2 Form of Regulation S Transfer Certificate for Transfers after
Restricted Period
Exhibit L Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit M Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit N Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate during the Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Global
Certificate during Restricted Period
Exhibit P Form of Omnibus Assignment
Exhibit Q-1 Form of Comparative Financial Status Report
Exhibit Q-2 Form of Delinquent Loan Status Report
Exhibit Q-3 Form of Historical Loan Modification Report
Exhibit Q-4 Form of Historical Loss Estimate Report
Exhibit Q-5 Form of REO Status Report
Exhibit Q-6 Form of Servicer Watch List
Exhibit Q-7 Form of Operating Statement Analysis
Exhibit Q-8 Form of NOI Adjustment Worksheet
Exhibit Q-9 CSSA Surveillance Reports
Exhibit Q-10 CSSA Loan Files
Exhibit Q-11 CSSA Property File
Exhibit R Form of ABN AMRO Letter of Credit
Annex A GSMC Retained Interest Loans
Annex B Representations and Warranties with Respect to Each Mortgage Loan
Annex C Mortgage Loans With Over 5% Concentrations
Annex D Schedule of Exceptions to Representations and Warranties
<PAGE>
Pooling and Servicing Agreement, dated as of October 11, 1998, among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as Responsible Party, Falcon Financial LLC, as Responsible Party, AMRESCO
Capital Limited, Inc., as Responsible Party, AMRESCO Commercial Mortgage
Funding, L.P., as Responsible Party, GMAC Commercial Mortgage Corporation, as
Master Servicer and Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Seller intends to sell pass-through certificates to be issued hereunder
in multiple classes which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund consisting primarily of the Mortgage Loans.
As provided herein, the Trustee will elect that designated portions of the Trust
Fund, exclusive of the Default Interest, the Class Q Distribution Account, the
Excess Interest, the AIMCO Multifamily Pool Conditional Debt, the Excess
Interest Distribution Account, the Reinvestment Enhancement Instrument and the
Reinvestment Reserve Account (such portion of the Trust Fund, the "Trust
REMICs"), be treated for federal income tax purposes as two separate real estate
mortgage investment conduits (each, a "REMIC" or, in the alternative, the
"Upper-Tier REMIC" and the "Lower-Tier REMIC," respectively). The Class A-1,
Class A-2, Class A-3, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates represent "regular interests"
in the Upper-Tier REMIC. The Class R Certificates constitute the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class LR Certificates constitute the sole class of "residual
interests" in the Lower-Tier REMIC for purposes of the REMIC Provisions. There
are also twelve classes of uncertificated Lower-Tier Regular Interests issued
under this Agreement (the Class LA-1, Class LA-2, Class LA-3, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ and Class LK
Interests), each of which will constitute a regular interest in the Lower-Tier
REMIC. All such Lower-Tier Regular Interests will be held by the Trustee as
assets of the Upper-Tier REMIC. The parties intend that the portions of the
Trust Fund representing assets of the Grantor Trust, including the Default
Interest, the Class Q Distribution Account, the Excess Interest, the AIMCO
Multifamily Pool Conditional Debt, the Excess Interest Distribution Account and
the Reinvestment Enhancement Instrument, will be treated as a grantor trust
under Subpart E of Part 1 of Subchapter J of the Code, that the Class Q
Certificates represent pro rata undivided beneficial interests in the portion of
the Trust Fund consisting of the Default Interest, the AIMCO Multifamily Pool
Conditional Debt, and the Class Q Distribution Account, that the Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates represent undivided beneficial interests in specified portions of
the Trust Fund consisting of the Excess Interest and the Excess Interest
Distribution Account and that the Goldman Group or its designee be treated as
the beneficial owner of the Reinvestment Enhancement Contract and the
Reinvestment Reserve Account.
The following table sets forth the designation and aggregate initial
Certificate Principal Amount (or, with respect to the Class X Certificates,
Notional Amount) for each Class of Certificates (other than the Class R, Class
LR and Class Q Certificates).
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Initial Certificate
Principal Amount or
Class Notional Amount
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Class A-1 $207,500,000
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Class A-2 $436,033,000
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Class A-3 $650,220,628
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Class X (1) $1,861,517,825
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Class B $102,384,000
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Class C $102,383,000
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Class D $107,038,000
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Class E $32,576,000
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Class F $83,768,000
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Class G $23,268,000
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Class H $55,846,000
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Class J $23,269,000
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Class K $37,232,197
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(1) The initial Notional Amount of the Class X Certificates is equal to the
initial Certificate Principal Amount of the Class A-1, Class A-2, Class A-3,
Class B, Class C Certificates, Class D, Class E, Class F, Class G, Class H,
Class J and Class K.
The Class Q, Class R and Class LR Certificates do not have Certificate
Principal Amounts or Notional Amounts. The Certificate Principal Amount of any
Class of Certificates outstanding at any time represents the maximum amount
which holders thereof are entitled to receive as distributions allocable to
principal from the cash flow on the Mortgage Loans and the other assets in the
Trust Fund; provided, however, that in the event that amounts previously
allocated as Realized Losses to a Class of Certificates in reduction of the
Certificate Principal Amount thereof are recovered subsequent to the reduction
of the Certificate Principal Amount of such Class to zero, such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01. As of the Cut-Off Date, the Mortgage Loans
have an aggregate Stated Principal Balance equal to $1,861,517,825.00
In consideration of the mutual agreements herein contained, the Seller,
each Responsible Party, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"ACLI": AMRESCO Capital Limited, Inc., a Delaware corporation, and its
successors in interest.
"ACMFLP": AMRESCO Commercial Mortgage Funding, L.P., a Delaware limited
partnership, and its successors in interest.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Additional Trust Fund Expenses": (i) Special Servicing Fees,
Rehabilitation Fees and Liquidation Fees, (ii) interest in respect of
unreimbursed Advances, (iii) the cost of various default-related or
unanticipated Opinions of Counsel required or permitted to be obtained in
connection with the servicing of the Mortgage Loans and the administration of
the Trust Fund, (iv) unanticipated, non-Mortgage Loan specific expenses of the
Trust Fund, including indemnities and expense reimbursements to the Trustee,
indemnities and expense reimbursements to the Master Servicer, the Special
Servicer and the Seller and federal, state and local taxes, and tax-related
expenses, specifically payable out of the Trust Fund and (v) any other
default-related or unanticipated expense of the Trust Fund not specifically
included in the calculation of Realized Loss for which there is no corresponding
collection from a Borrower.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed for the number of days from the date on which such Advance was made
through, but not including, the date of reimbursement of the related Advance or
other such amount, less any amount of interest previously paid on such Advance;
provided, that, with respect to a P&I Advance, in the event that the related
Borrower makes payment of the amount in respect of which such P&I Advance was
made with interest at the Default Rate, the Advance Interest Amount payable to
the Master Servicer, the Trustee or the Fiscal Agent shall be paid (i) first
from the amount of Default Interest paid by the Borrower and (ii) to the extent
such amounts are insufficient therefor, from amounts on deposit in the
Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most recently
published in the "Money Rates" section of The Wall Street Journal, New York
edition, on or before the related Record Date), compounded monthly, as of each
Master Servicer Remittance Date.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Master Servicer, the Special
Servicer or the Seller to determine whether any Person is an Affiliate of such
party.
"Agent Member": Members of, or participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"AIMCO Multifamily Pool Agreed Valuation Amount": As of any date of
determination, the aggregate of the Individual AIMCO Loan Agreed Valuation
Amounts for such date.
"AIMCO Multifamily Pool Conditional Debt": An amount, with respect to each
Individual AIMCO Loan, equal to the excess of (i) the face amount of such
Individual AIMCO Loan over (ii) the Individual AIMCO Loan Agreed Valuation
Amount of such Individual AIMCO Loan, which was approximately $42.2 million as
of the Cut-Off Date. The AIMCO Multifamily Pool Conditional Debt shall not be an
asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"AIMCO Multifamily Pool Loan": The Mortgage Loan identified as Loan No.
AIM-1 on the Mortgage Loan Schedule.
"Allocated Loan Amount": With respect to each Mortgaged Property as of any
date of determination, the portion of the principal balance (or AIMCO
Multifamily Pool Agreed Valuation Amount, in the case of the AIMCO Multifamily
Pool Loan) of the related Mortgage Loan then allocated to such Mortgaged
Property in accordance with the terms of the applicable Mortgage or Loan
Agreement; provided, that the Allocated Loan Amount for a Mortgaged Property
shall not be decreased by the amount of any release payment made by the related
Borrower with respect to any other Mortgaged Property securing the same Mortgage
Loan, to the extent the amount of the release payment paid by such Borrower with
respect to such other Mortgaged Property is in excess of the Allocated Loan
Amount for such other Mortgaged Property.
"Americold Pool Loan": The Mortgage Loan identified as No. ACS on the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
indicated in the related Loan Documents upon which such ARD Loan commences
accruing interest at the applicable Revised Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06.
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan as of the last day of the related Collection Period over (b) the
excess of (i) 90% of the sum of the appraised values of the related Mortgaged
Properties as determined by Updated Appraisals obtained by the Special Servicer
(the cost of which shall be advanced by the Master Servicer as a Property
Advance) over (ii) the sum of (A) to the extent not previously advanced by the
Master Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such
Mortgage Loan at a per annum rate equal to its Mortgage Rate, (B) all
unreimbursed Advances, with interest thereon at the Advance Rate in respect of
such Mortgage Loan and (C) all currently due and unpaid real estate taxes and
assessments and insurance premiums and all other amounts, including, if
applicable, ground rents, due and unpaid with respect to such Mortgage Loan
(which taxes, premiums and other amounts have not been the subject of an Advance
by the Master Servicer, the Trustee or the Fiscal Agent, as applicable). If no
Updated Appraisal has been obtained within the 12 months prior to the first
Distribution Date on or after an Appraisal Reduction Event has occurred, for
purposes of the calculations described above, the Special Servicer shall
estimate the value of the related Mortgaged Properties (the "Special Servicer's
Appraisal Reduction Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. Within 60
days after the Special Servicer receives notice or is otherwise aware of the
Appraisal Reduction Event, the Special Servicer shall obtain an independent MAI
appraisal, the costs of which shall be paid by the Master Servicer as a Property
Advance. On the first Distribution Date occurring on or after the delivery of
such independent MAI appraisal, the Special Servicer shall adjust the Appraisal
Reduction Amount to take into account such appraisal (regardless of whether the
Updated Appraisal is higher or lower than the Special Servicer's Appraisal
Reduction Estimate). Each Appraisal Reduction Amount shall also be adjusted with
respect to the next Distribution Date to take into account any subsequent
Updated Appraisal and annual letter updates, as of the date of each such
subsequent Updated Appraisal or letter update. Upon payment in full or
liquidation of any Mortgage Loan for which an Appraisal Reduction Amount has
been determined, such Appraisal Reduction Amount will be eliminated.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 120 days after an uncured Delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
90 days after the date on which a reduction in the amount of Monthly Payments on
the Mortgage Loan, or a change in any other material economic term of the
Mortgage Loan, becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) 60 days after a receiver in respect of the
related Mortgaged Property has been appointed, (v) immediately after a Borrower
declares bankruptcy, (vi) 60 days after an involuntary petition of bankruptcy is
filed with respect to the Borrower, if such petition is not dismissed prior to
the expiration of such period, and (vii) immediately after a Mortgage Loan
becomes an REO Mortgage Loan. The Special Servicer shall notify the Master
Servicer and the Master Servicer shall notify the Special Servicer, as
applicable, promptly upon the occurrence of any of the foregoing events.
"Archon": Archon Financial, L.P., a Delaware limited partnership, and its
successors in interest.
"ARD Loan": Any Mortgage Loan which contains a hyper-amortization feature
pursuant to which, after an Anticipated Repayment Date, any principal
outstanding on such date accrues interest at the Revised Rate rather than at the
Initial Rate.
"Asset Status Report": As defined in Section 3.27(k).
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, 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.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Master Servicer shall be responsible for determining whether any assignment
is legally sufficient or in recordable form.
"Assumption Fees": Any fees collected by the Master Servicer or Special
Servicer in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 5.07.
"Available Funds": For a Distribution Date, the sum of (i) all Monthly
Payments or other receipts on account of principal and interest (including
Unscheduled Payments and any Net REO Proceeds transferred from an REO Account
pursuant to Section 3.17(b)) on or in respect of the Mortgage Loans received by
the Master Servicer in the Prepayment Period relating to such Distribution Date
or relating to a Due Date in the Collection Period relating to such Distribution
Date but received by the Master Servicer in a prior Collection Period, (ii) all
other amounts received by the Master Servicer in such Prepayment Period and
deposited in the Collection Account by the Master Servicer pursuant to Section
3.05 allocable to such Mortgage Loans, and including all P&I Advances made by
the Master Servicer, the Trustee or the Fiscal Agent, as applicable, in respect
of such Distribution Date and any interest or other income earned on funds in
the Interest Reserve Account, (iii) for the Distribution Date occurring in each
March, the related Withheld Amounts remitted to the Lower-Tier Distribution
Account pursuant to Section 3.25, (iv) any late payments of Monthly Payments
received after the end of the Collection Period relating to such Distribution
Date but prior to the related Determination Date, and (v) any funds released
from the Payment Reserve Account in accordance with Section 3.05(e) for such
Distribution Date and any proceeds received on the Reinvestment Enhancement
Instrument (including from the Reinvestment Reserve Account) pursuant to Section
4.08(a), but excluding the following, to the extent deposited in the Collection
Account:
(a) amounts permitted to be used to reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances and interest thereon as described in
Section 3.06(ii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee (net of any amounts used to offset Prepayment
Interest Shortfalls) and an amount representing any applicable Special
Servicing Compensation with respect to such Distribution Date;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service transaction
fees, demand fees, beneficiary statement charges, Assumption Fees and
similar fees, and reinvestment earnings on Investment Accounts which the
Master Servicer or the Special Servicer is entitled to retain as additional
servicing compensation;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds or
the Repurchase Price received with respect to a Mortgage Loan which
represents any unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, to which the Master Servicer, Trustee and the Special
Servicer, respectively, are entitled;
(f) all amounts representing certain unanticipated or default related
expenses specifically reimbursable or payable to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent and other amounts
permitted to be retained by the Master Servicer or withdrawn by the Master
Servicer from the Collection Account to the extent expressly set forth in
this Agreement (including, without limitation, as provided in Section 3.06
and including any indemnities provided for herein);
(g) Yield Maintenance Charges;
(h) Default Interest;
(i) with respect to each Mortgage Loan which accrues interest on the
basis of a 360-day year and the actual number of days in the related month
and any Distribution Date relating to the one-month period preceding the
Distribution Date in each February and in any January of a year which is
not a leap year, an amount equal to the related Withheld Amount pursuant to
Section 3.25;
(j) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(c), 3.18 or 9.01 during
the related Prepayment Period and subsequent to the date as of which the
amount required to effect such purchase or repurchase was determined;
(k) all payments on the Mortgage Loans deposited in the Payment Reserve
Account in accordance with Section 3.05(e) since the preceding Distribution
Date;
(l) the amount reasonably determined by the Trustee to be necessary to
pay any applicable federal, state or local taxes imposed on the Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to the extent
described in Section 4.05; and
(m) all amounts received on or in respect of the AIMCO Multifamily Pool
Conditional Debt.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification provides for an amortization schedule extending
beyond its Maturity Date, unless such extension results solely from the accrual
of interest on the basis of the actual number of days elapsed in a year of 360
days, notwithstanding calculation of Monthly Payments based on a 360-day year
consisting of twelve 30-day months.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the amount outstanding on the Maturity Date of such Mortgage
Loan in excess of the related Monthly Payment.
"Base Interest Fraction": With respect to any Principal Prepayment on any
Mortgage Loan and with respect to any Class of Certificates (other than Class F,
Class G, Class H, Class J, Class Q and Residual Certificates) is a fraction (a)
whose numerator is the amount, if any, by which (i) the Pass-Through Rate on
such Class of Certificates exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment (or, if the Yield Maintenance
Charge is a fixed percentage of the principal balance of the related Mortgage
Loan, the yield rate applicable to any related yield maintenance charge) and (b)
whose denominator is the amount, if any, by which the (i) Mortgage Rate on such
Mortgage Loan exceeds (ii) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Yield Maintenance Charge with respect
to such Principal Prepayment (or, if the Yield Maintenance Charge is a fixed
percentage of the principal balance of the related Mortgage Loan, the yield rate
applicable to any related yield maintenance charge); provided, however, that
under no circumstances shall the Base Interest Fraction be greater than one. If
such discount rate is greater than or equal to the lesser of (x) the Mortgage
Rate on the related Mortgage Loan and (y) the Pass-Through Rate described in the
preceding sentence, then the Base Interest Fraction shall equal zero.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository). Each
of the Trustee and the Master Servicer shall have the right to require, as a
condition to acknowledging the status of any Person as a Beneficial Owner under
this Agreement, that such Person provide evidence at its expense of its status
as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Broker Strip Amount": With respect to each Broker Strip Loan, the portion
of the Servicing Fee equal to 0.10% per annum of the Stated Principal Balance of
the related Mortgage Loan, calculated for the same number of days and on the
same basis as the Servicing Fee.
"Broker Strip Loans": Those Mortgage Loans identified as Loan Nos. O0393
and O0148 on the Mortgage Loan Schedule.
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the City of New York, New York, the cities in which the
principal offices of the Master Servicer or Special Servicer are located, or the
city in which the Corporate Trust Office is located are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the related Originator in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-Off Date.
"CEDEL": Citibank, N.A., as depositary for CEDEL Bank, S.A., or its
successor in such capacity.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class X, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class Q, Class
R or Class LR Certificate issued, authenticated and delivered hereunder.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Principal Amount": With respect to any Class of Certificates
(other than the Class X, Class Q, Class R and Class LR Certificates) (a) on or
prior to the first Distribution Date, an amount equal to the aggregate initial
Certificate Principal Amount of such Class, as specified in the Preliminary
Statement hereto, and (b) as of any date of determination after the first
Distribution Date, the Certificate Principal Amount of such Class of
Certificates on the Distribution Date immediately prior to such date of
determination, after actual distributions of principal thereon and allocation of
Realized Losses thereto on such prior Distribution Date; provided that for
purposes of determining Voting Rights, the Certificate Principal Amount of each
of the Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates shall be deemed to have been reduced by the amount of
any Appraisal Reduction Amounts notionally allocated thereto pursuant to Section
4.01(j). With respect to any Class of Lower-Tier Regular Interest, the
Certificate Principal Amount of its related Certificate.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": With respect to any Certificate, the Person whose name
is registered in the Certificate Register; provided, however, that, except to
the extent provided in the next proviso, solely for the purpose of giving any
consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Seller, the Master Servicer, the Special Servicer, the
Trustee, a manager of a Mortgaged Property, a Borrower or any Person known to a
Responsible Officer of the Certificate Registrar to be an Affiliate of the
Seller, the Trustee, the Master Servicer or the Special Servicer, 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 or take any such action has
been obtained; provided, however, that (i) for purposes of obtaining the consent
of Certificateholders to an amendment of this Agreement, any Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer shall be deemed to be
outstanding, provided, that, such amendment does not relate to compensation of
the Master Servicer or the Special Servicer, or otherwise benefit the Master
Servicer or the Special Servicer (in its capacity as such) or any Affiliate
thereof (other than solely in its capacity as Certificateholder) in any material
respect, in which case such Certificate shall be deemed not to be outstanding;
and (ii) for purposes of obtaining the consent of Certificateholders to any
action proposed to be taken by the Special Servicer with respect to a Specially
Serviced Mortgage Loan, any Certificates beneficially owned by the Master
Servicer or an Affiliate thereof shall be deemed to be outstanding, provided
that the Special Servicer is not the Master Servicer. For purposes of obtaining
the consent of Certificateholders to any action with respect to a particular
Mortgage Loan proposed to be taken by the Master Servicer or Special Servicer,
any Certificates beneficially owned by the Affiliates of the related Borrower,
the related Manager, or Affiliates of the related Manager shall not be deemed to
be outstanding.
Notwithstanding the foregoing, solely for purposes of providing or
distributing any reports, statements or other information required or permitted
to be provided to a Certificateholder hereunder, a Certificateholder shall
include any Beneficial Owner, or any Person identified by a Beneficial Owner as
a prospective transferee of a Certificate beneficially owned by such Beneficial
Owner but only if the Trustee or another party hereto furnishing such report,
statement or information has been provided with the name of the Beneficial Owner
of the related Certificate or the Person identified as a prospective transferee
thereof. For purposes of the foregoing, the Seller, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Fiscal Agent or other such
Person may rely, without limitation, on a participant listing from the
Depository or statements furnished by a Person that on their face appear to be
statements from a participant in the Depository to such Person indicating that
such Person beneficially owns Certificates.
"Class": With respect to the Certificates, all of the Certificates bearing
the same alphabetical and numerical class designation, and with respect to the
Lower-Tier Regular Interests, each interest bearing the applicable alphabetical
and numerical designation set forth in the Preliminary Statement hereto.
"Class A Certificates": The Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-1 hereto.
"Class A-1 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-1
Certificates.
"Class A-1 Component Pass-Through Rate" A per annum rate equal to the WAC
Rate minus the Class A-1 Pass-Through Rate.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.060%.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-2 hereto.
"Class A-2 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-2
Certificates.
"Class A-2 Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class A-2 Pass-Through Rate.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.620%.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-3 hereto.
"Class A-3 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-3
Certificates.
"Class A-3 Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class A-3 Pass-Through Rate.
"Class A-3 Pass-Through Rate": A per annum rate equal to 6.135%.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-5 hereto.
"Class B Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class B
Certificates.
"Class B Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class B Pass-Through Rate.
"Class B Pass-Through Rate": A per annum rate equal to 6.970%.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-6 hereto.
"Class C Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class C
Certificates.
"Class C Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class C Pass-Through Rate.
"Class C Pass-Through Rate": A per annum rate equal to 6.910%.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-7 hereto.
"Class D Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class D
Certificates.
"Class D Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class D Pass-Through Rate.
"Class D Pass-Through Rate": With respect to the initial Distribution Date,
a per annum rate equal to 7.450%, and thereafter, the lesser of such per annum
rate and the WAC Rate.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-8 hereto.
"Class E Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class E
Certificates.
"Class E Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class E Pass-Through Rate.
"Class E Pass-Through Rate": With respect to the initial Distribution Date,
a per annum rate equal to 7.450%, and thereafter, the lesser of such per annum
rate and the WAC Rate.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-9 hereto.
"Class F Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class F
Certificates.
"Class F Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class F Pass-Through Rate.
"Class F Pass-Through Rate": A per annum rate equal to 6.000%.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-10 hereto.
"Class G Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class G
Certificates.
"Class G Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class G Pass-Through Rate.
"Class G Pass-Through Rate": A per annum rate equal to 6.000%.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-11 hereto.
"Class H Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class H
Certificates.
"Class H Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class H Pass-Through Rate.
"Class H Pass-Through Rate": A per annum rate equal to 6.000%.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-12 hereto.
"Class J Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class J
Certificates.
"Class J Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class J Pass-Through Rate.
"Class J Pass-Through Rate": A per annum rate equal to 6.000%.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-13 hereto.
"Class K Component": With respect to the Class X Certificates, at any date
of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class K
Certificates.
"Class K Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus the Class K Pass-Through Rate.
"Class K Pass-Through Rate": A per annum rate equal to 6.000%.
"Class LA-1 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LA-1 Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LA-2 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LA-2 Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LA-3 Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LA-3 Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LB Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LB Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LC Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LC Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LD Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LD Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LE Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LE Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LF Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LF Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LG Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LG Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LH Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LH Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LJ Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LJ Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LK Interest": A regular interest in the Lower-Tier REMIC entitled to
the monthly distribution payable thereto pursuant to Section 4.01(a).
"Class LK Pass-Through Rate": A per annum rate equal to the WAC Rate.
"Class LR Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-16 hereto. The Class LR Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount.
"Class Q Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-14 hereto and entitled to the distributions payable thereto pursuant
to Section 4.01(a). The Class Q Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount. The Class Q Certificates
represent a beneficial ownership interest in payments on the AIMCO Multifamily
Pool Conditional Debt and the Default Interest, subject in the case of Default
Interest to offset, to the extent necessary, to pay interest on Advances.
"Class Q Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(c), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class Q Certificateholders, Class Q
Distribution Account" and which must be an Eligible Account. The Class Q
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Class R Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-15 hereto. The Class R Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-4 hereto.
"Class X Pass-Through Rate": A per annum rate equal to the weighted average
of the Class A-1 Component Pass-Through Rate, the Class A-2 Component
Pass-Through Rate, the Class A-3 Component Pass-Through Rate, the Class B
Component Pass-Through Rate, the Class C Component Pass-Through Rate, the Class
D Component Pass-Through Rate, the Class E Component Pass-Through Rate, the
Class F Component Pass-Through Rate, the Class G Component Pass-Through Rate,
the Class H Component Pass-Through Rate, the Class J Component Pass-Through Rate
and the Class K Component Pass-Through Rate, weighted on the basis of their
respective Notional Amounts.
"Closing Date": October 29, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Co-Lender Agreement": The agreement, dated as of May 21, 1998, among the
Trustee, GMACCM and GSMC, relating to the administration of the Americold Pool
Loan and the Other Americold Pool Loan.
"Collection Account": The account or accounts created and maintained by the
Master Servicer pursuant to Section 3.05(a), which shall be entitled "GMAC
Commercial Mortgage Corporation in trust for LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, Collection Account" and
which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan, the period beginning on the day after the Due Date in the month preceding
the month in which such Distribution Date occurs (or, in the case of the
Distribution Date occurring on November 18, 1998, beginning on the day after the
Cut-Off Date) and ending on the Due Date in the month in which such Distribution
Date occurs.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit Q-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income or net cash flow, as
applicable, and debt service coverage ratio for each Mortgage Loan as of the
date of the latest financial information available immediately preceding the
preparation of such report for each of the following four periods (to the extent
such information is available): (i) the most current available year-to-date,
(ii) the most recent twelve months, (iii) the previous two full fiscal years,
and (iv) the "base year" (representing the original analysis of information used
as of the Cut-Off Date); provided, however, that debt service coverage ratio
shall not be calculated for any Mortgaged Property for which twelve months of
operating information is not available (including for purposes of clause (i)).
For the purposes of the Master Servicer's production of any such report that is
required to state information for any period prior to the Cut-Off Date, the
Master Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the applicable Mortgage Loan
Seller.
"Component": Any of the Class A-1 Component, Class A-2 Component, Class A-3
Component, Class B Component, Class C Component, Class D Component, Class E
Component, Class F Component, Class G Component, Class H Component, Class J
Component and Class K Component.
"Controlling Certificateholders": Each Holder (or Beneficial Owner, if
applicable) of a Certificate of the Controlling Class as certified to the
Trustee from time to time by such Holder or Beneficial Owner.
"Controlling Class": As of any time of determination, the Class of
Certificates outstanding representing the most subordinate Certificates (other
than the Class R or Class LR Certificates) that equals at least 25% of its
initial Certificate Principal Amount (or if no Class of Certificates has a
Certificate Principal Amount of at least 25% of its initial Certificate
Principal Amount, the most subordinate Class of Certificates outstanding other
than the Class R and Class LR Certificates).
"Controlling Class Representative": The Controlling Certificateholder
selected by a majority of the Controlling Certificateholders, by Certificate
Principal Amount, as certified by the Trustee from time to time; provided, that,
absent such selection, or (i) until a Controlling Class Representative is so
selected, or (ii) upon receipt of notice from a majority of the Controlling
Certificateholders, by Certificate Principal Amount, that a Controlling Class
Representative is no longer so designated, the Controlling Certificateholder
which owns the largest aggregate Certificate Principal Amount of the Controlling
Class shall be the Controlling Class Representative.
"Corporate Trust Office": The principal office of the Trustee located at
135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674-4107, Attention:
Asset Backed Securities Trust Services Group-GSMSC II 1998-C1, or the principal
trust office of any successor trustee qualified and appointed pursuant to
Section 8.08.
"Cross-over Date": The Distribution Date on which the Certificate Principal
Amount of each Class of Certificates entitled to distributions of principal
(other than the Class A-1, Class A-2 and Class A-3 Certificates) has been
reduced to zero due to the application of Realized Losses.
"CSSA Data Files": With respect to the Mortgage Loans, data files which
contain the information substantially in the forms of the CSSA standard
reporting package attached as Exhibits Q-9, Q-10 and Q-12, as the same may be
modified from time to time.
"Custodial Agreement": The custodial agreement, if any, from time to time
in effect between the Custodian named therein and the Trustee, as the same may
be amended or modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 5.08 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Seller or
any Affiliate thereof.
"Cut-Off Date": October 11, 1998.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of (i) the related Default Rate over (ii) the
sum of the related Mortgage Rate plus, if applicable, the Excess Rate for such
Mortgage Loan. The Default Interest shall not be an asset of the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment, as
such rate is set forth on the Mortgage Loan Schedule.
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit Q-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 1 Collection Period, delinquent 2 Collection Periods, delinquent 3
Collection Periods or more, current but specially serviced, or were in
foreclosure but were not REO Property.
"Denomination": As defined in Section 5.01.
"Depository": The Depository Trust Company or a successor appointed by the
Certificate Registrar (which appointment shall be at the direction of the Seller
if the Seller is legally able to do so).
"Depository Participant": A 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 fifth
Business Day prior to such Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space "for occupancy only" within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), 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 or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10 percent of the
construction of such building or improvement was completed before default became
imminent), other than through an Independent Contractor; provided, however, that
the Special Servicer, on behalf of the Trust Fund, shall not be considered to
Directly Operate an REO Property solely because the Special Servicer, on behalf
of the Trust Fund, establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property or takes other actions
consistent with Section 1.856-4(b)(5)(ii) of the regulations of the United
States Department of the Treasury.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Date": The 18th day of each month (or, if such 18th day is
not a Business Day, the next succeeding Business Day), commencing on November
18, 1998.
"Due Date": With respect to any Mortgage Loan, the day each month set forth
in the related Note on which the Monthly Payment is due and payable, and with
respect to any Distribution Date, the Due Date occurring in the month in which
such Distribution Date occurs.
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the sum of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date.
"Eligible Account": Either (i) (A) an account or accounts maintained with
either a federal or state chartered depository institution or trust company the
long-term unsecured debt obligations (or short-term unsecured debt obligations
if the account holds funds for less than 30 days) or commercial paper of which
are rated by each of the Rating Agencies in its highest rating category at all
times (or, in the case of the REO Account, Collection Account, Interest Reserve
Account and Escrow Account, the long-term unsecured debt obligations (or
short-term unsecured debt obligations if the account holds funds for less than
30 days) of which are rated at least "AA-" by each Rating Agency or, if
applicable, the short-term rating equivalent thereof, which is at least "F1+" by
Fitch and "A-1" by S&P, or (B) as to which the Master Servicer or the Trustee,
as applicable, has received written confirmation from each of the Rating
Agencies that holding funds in such account would not cause any Rating Agency to
qualify, withdraw or downgrade any of its ratings on the Certificates or (ii) a
segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity which, in the case of a state chartered depository institution or trust
company is subject to regulations substantially similar to 12 C.F.R. ss.9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority, or (iii)
any other account that, as evidenced by a written confirmation from each Rating
Agency, would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, which may
be an account maintained with the Trustee or the Master Servicer; provided,
however, that accounts held at Banc One Texas (or any successor in interest),
and any other bank authorized under the applicable Loan Documents (solely with
respect to the related Mortgage Loan), shall be Eligible Accounts for so long as
there is no downgrade, qualification or withdrawal of the rating of such
institutions from their ratings as of the Closing Date. Eligible Accounts may
bear interest.
"Eligible Healthcare Adviser": Any Person who is acceptable to the Rating
Agencies to advise the Special Servicer with respect to the loans referred to in
Section 3.28. No Person shall be a Eligible Healthcare Adviser (i) without the
written consent of the Rating Agencies or (ii) if any Rating Agency submits in
writing a notice stating that if the designated Person were to serve as
healthcare adviser hereunder, any of the then-current ratings assigned by such
Rating Agency assigned to the respective Classes of the Certificates would be
qualified, downgraded or withdrawn as a result thereof.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A, (ii) an Institutional Accredited Investor or (iii) a
Regulation S Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the related Originator in
connection with the origination of the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b).
"Escrow Payment": Any payment made by any Borrower to the Master Servicer
pursuant to the related Mortgage, Lock-Box Agreement or Loan Agreement for the
account of such Borrower for application toward the payment of taxes, insurance
premiums, assessments, ground rents and similar items in respect of the related
Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Master Servicer Event of Default or Special Servicer
Event of Default, as applicable.
"Excess Interest": With respect to each ARD Loan, interest accrued on such
Mortgage Loan at the related Excess Rate plus interest thereon to the extent
permitted by applicable law at the related Revised Rate. The Excess Interest
shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate account or accounts by the Trustee pursuant
to Section 3.05(d), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, Excess Interest Distribution
Account" and which must be an Eligible Account. The Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Prepayment Interest Shortfall": With respect to any Distribution
Date, the aggregate amount, if any, by which the Prepayment Interest Shortfall
with respect to all Principal Prepayments received during the related Prepayment
Period exceeds the sum of (x) the Prepayment Interest Excess with respect to all
Principal Prepayments received during the related Prepayment Period, plus (y) an
amount equal to the product of (i) 1/12th of 0.04% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans for the related Interest Accrual Period.
"Excess Rate": With respect to each ARD Loan, the excess of the related
Revised Rate over the related Initial Rate, each as set forth in the Mortgage
Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Falcon": Falcon Financial, LLC, a Delaware limited liability company, and
its successors in interest.
"Falcon Loan Sale Agreement": The Loan Sale Agreement, dated as of the
Cut-Off Date, by and between the Seller and Falcon.
"FDIC": The Federal Deposit Insurance Corporation, and its successors in
interest.
"Federal Reserve Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"FHLMC": The Federal Home Loan Mortgage Corporation, and its successors in
interest.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or any Mortgage Loan subject to repurchase by the related
Responsible Party pursuant to Section 2.03(c), the recovery of all Insurance
Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments
or recoveries (including proceeds of the final sale of any REO Property) which
the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the
Special Servicer), in its reasonable judgment as evidenced by a certificate of a
Servicing Officer delivered to the Trustee and the Custodian (and the Master
Servicer, if the certificate is from the Special Servicer), expects to be
finally recoverable. The Master Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Master Servicer hereunder and the transfer of such records to
a successor Master Servicer and (ii) five years following the termination of the
Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation, in
its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch IBCA, Inc., and its successors in interest.
"Fixed Voting Rights Percentage": As defined in the definition of "Voting
Rights."
"FNMA": The Federal National Mortgage Association, and its successors in
interest.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"Form 10-K": An Annual Report in Form 10-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"Form 12b-25": A Notification of Late Filing required by Rule 12b-25 under
the General Rules and Regulations under the Exchange Act.
"Global Certificates": The Class A-1, Class A-2, Class A-3, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates.
"GMACCM": GMAC Commercial Mortgage Corporation, a California corporation,
and its successors in interest.
"Goldman Group": The Goldman Sachs Group, L.P., a Delaware limited
partnership, and its successors in interest.
"Goldman Group Guaranty": That certain guaranty, dated October 29, 1998, of
Goldman Group, relating to certain representations and warranties of GSMC.
"Grantor Trust": A segregated asset pool within the Trust Fund consisting
of the Default Interest, the Excess Interest, the AIMCO Multifamily Pool
Conditional Debt, the Reinvestment Enhancement Instrument and amounts held from
time to time in the Class Q Distribution Account and the Excess Interest
Distribution Account.
"Group 1": The Mortgage Loans designated as Group 1 Mortgage Loans on the
Mortgage Loan Schedule.
"Group 2": The Mortgage Loans designated as Group 2 Mortgage Loans on the
Mortgage Loan Schedule.
"GSMC": Goldman Sachs Mortgage Company, a New York limited partnership, and
its successors in interest.
"GSMC Loan Sale Agreement": The Loan Sale Agreement, dated as of the
Cut-Off Date, by and between the Seller and GSMC.
"GSMC Retained Interest Amount": With respect to each GSMC Retained
Interest Loan, an amount equal to the amount of interest accrued on such
Mortgage Loan (at the related Mortgage Rate) during the period from and after
the related origination date of such Mortgage Loan up to but not including the
date that is one month prior to the Due Date for such Mortgage Loan in November
1998. Such amount is set forth on Annex A hereto.
"GSMC Retained Interest Loan": Any of the twelve Mortgage Loans identified
on Annex A hereto.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now or hereafter existing, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, 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.
"Healthcare Adviser": A consultant who provides advice to the Special
Servicer with respect to a Healthcare Adviser Loan that has become a Specially
Serviced Mortgage Loan and the related Mortgaged Property, appointed by the
Controlling Class Representative or the Special Servicer, as set forth herein.
"Healthcare Adviser Fee": With respect to each Healthcare Adviser Loan that
is a Specially Serviced Mortgage Loan and any Distribution Date, an amount paid
to the Healthcare Advisor as compensation for its services hereunder. Such
amount shall be negotiated by the Special Servicer in accordance with the
Servicing Standard.
"Healthcare Adviser Loans": The Mortgage Loans identified in the Mortgage
Loan Schedule with the following Loan Numbers: 090001099, 090001100 and SP007.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit Q-3 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, have
been modified pursuant to this Agreement (i) during the related Collection
Period and (ii) since the Cut-Off Date, showing the original and the revised
terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit Q-4 attached hereto, setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and Liquidation Expenses, both for the current period and
historically, and (ii) the amount of Realized Losses occurring during the
related Collection Period and historically, set forth on a Mortgage
Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Indemnifying Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Seller, the Trustee, the Master
Servicer, the Special Servicer, any Borrower or any Affiliate thereof, and (ii)
is not connected with any such Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer and the
Trustee has been delivered to the Trustee to that effect) or (ii) any other
Person (including the Master Servicer and the Special Servicer) if the Master
Servicer, on behalf of itself and the Trustee, has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) 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 (provided that such income would otherwise so qualify).
"Individual AIMCO Loan": Each of the fifteen first-lien mortgage loans
comprising the AIMCO Multifamily Pool Loan, each evidenced by an individual
Mortgage Note and secured by, among other things, a Mortgage on an individual
Mortgaged Property.
"Individual AIMCO Loan Agreed Valuation Amount": With respect to any
Individual AIMCO Loan, at any date of determination, an amount equal to the
"Agreed Valuation Amount" (as such term is defined in the related Loan
Documents).
"Individual Certificate": Any Certificate in definitive, fully registered
form without interest coupons.
"Initial Rate": With respect to an ARD Loan, the Mortgage Rate at which
interest accrues on such ARD Loan until its Anticipated Repayment Date.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Master Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Sequential Pay Certificates or any Class of Lower-Tier Regular
Interests, an amount equal to interest for the related Interest Accrual Period
at the Pass-Through Rate for such Class on the related Certificate Principal
Amount (provided, that for interest accrual purposes any distributions in
reduction of Certificate Principal Amount or reductions in Certificate Principal
Amount as a result of allocations of Realized Losses on the Distribution Date
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period). With respect to any Distribution
Date and the Class X Certificates, an amount equal to interest for the related
Interest Accrual Period at the Pass-Through Rate for such Class for such
Interest Accrual Period on the Class X Notional Amount (provided, that for
interest accrual purposes any reductions in Notional Amount as a result of
allocations of Realized Losses on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period). Calculations of interest due in respect of the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months.
"Interest Accrual Period": With respect to any Distribution Date and with
respect to each Class of Certificates, the calendar month preceding the month in
which such Distribution Date occurs. Each Interest Accrual Period with respect
to each Class of Certificates is assumed to consist of 30 days.
"Interest Distribution Amount": With respect to any Distribution Date and
each Class of Regular Certificates and Lower-Tier Regular Interests, an amount
equal to (A) the sum of (i) the Interest Accrual Amount for such Distribution
Date and (ii) the Interest Shortfall, if any, for such Distribution Date, less
(B) any Excess Prepayment Interest Shortfall allocated to such Class on such
Distribution Date pursuant to Section 4.01(g).
"Interest Reserve Account": The account created and maintained by the
Trustee pursuant to Section 3.25, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, Interest Reserve
Account" and which shall be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date for any Class
of Regular Certificates and Lower-Tier Regular Interests is the sum of (a) the
excess, if any, of (i) the Interest Distribution Amount for such Class for the
immediately preceding Distribution Date, over (ii) all distributions of interest
(other than Excess Interest) made with respect to such Class on the immediately
preceding Distribution Date, and (b) to the extent permitted by applicable law,
(i) other than in the case of the Class X Certificates, one month's interest on
any such excess at the Pass-Through Rate applicable to such Class for the
current Distribution Date, and (ii) in the case of the Class X Certificates, one
month's interest on any such excess at the WAC Rate for such Distribution Date.
"Interested Person": As of any date of determination, the Seller, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Borrower, any manager of a Mortgaged Property, any Independent Contractor
engaged by the Special Servicer pursuant to Section 3.17, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Liquidation Expenses": Expenses incurred by the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest on the related Property Advances at the Advance Rate
not previously reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": With respect to any Mortgage Loan or REO Property which
is sold or transferred or otherwise liquidated, an amount equal to the
applicable Principal Recovery Percentage of the amount equal to (a) the
Liquidation Proceeds of such Mortgage Loan or REO Property (other than any such
proceeds specified in clause (i) of the definition of Liquidation Proceeds)
minus (b) any broker's commission and related brokerage referral fees.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the related Originator and the Borrower, pursuant to which such
Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents executed
or delivered in connection with the origination of such Mortgage Loan, or
subsequently added to the related Mortgage File (including, without limitation,
with respect to the Americold Pool Loan, the Co-Lender Agreement).
"Loan Group": Either Group 1 or Group 2.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Seller or any
sub-servicer for the Seller, as set forth in the Mortgage Loan Schedule.
"Loan Sale Agreement": The Falcon Loan Sale Agreement or the GSMC Loan Sale
Agreement.
"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 rental or other income generated by the Mortgaged Property. 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 3.07, which Person shall be taxed on all reinvestment income or gain
thereon.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box or
other similar agreement, if any, between the related Originator and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lock-out Period": With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower-Tier Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Lower-Tier Distribution Account" and
which must be an Eligible Account.
"Lower-Tier Regular Interests": The Class LA-1, Class LA-2, Class LA-3,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ
and Class LK Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest, amounts
collected on the AIMCO Multifamily Pool Conditional Debt and Excess Interest),
collections thereon, any REO Property acquired in respect thereof and all
proceeds of such REO Property, other property of the Trust Fund related thereto,
and amounts held in respect thereof from time to time in the Collection Account,
the Interest Reserve Account and the Lower-Tier Distribution Account.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the management
agreement, if any, by and between the Manager and the related Borrower, or any
successor management agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for the
related Mortgaged Properties.
"Master Servicer": GMACCM or its successor in interest, or any successor
Master Servicer appointed as herein provided.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer Remittance Date": With respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicer Remittance Report": A report prepared by the Master
Servicer in such media as may be agreed upon by the Master Servicer and the
Trustee containing such information regarding the Mortgage Loans as will permit
the Trustee to calculate the amounts to be distributed pursuant to Section 4.01
and to furnish statements to Certificateholders pursuant to Section 4.02 and
containing such additional information as the Master Servicer and the Trustee
may from time to time agree.
"Maturity Date": With respect to each Mortgage Loan, the maturity date as
set forth on the Mortgage Loan Schedule.
"Monthly Distribution Statement": As defined in Section 4.02(a).
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal (if
any) and interest at the related Mortgage Rate, which is payable by the related
Borrower on such Due Date under the related Note or Notes. The Monthly Payment
with respect to (i) an REO Mortgage Loan, or (ii) any Mortgage Loan which is
delinquent at its respective Maturity Date and with respect to which the Special
Servicer does not enter into an extension, is the monthly payment that would
otherwise have been payable on the related Due Date had the related Note not
been discharged or the related Maturity Date had not been reached, as the case
may be, determined as set forth in the preceding sentence and on the assumption
that all other amounts, if any, due thereunder are paid when due.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
listed in Section 2.01(i) through (xvi) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-Off Date. Such term shall include
any REO Mortgage Loan or defeased Mortgage Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Borrower's name;
(b) the Monthly Payment in effect as of the Cut-Off Date;
(c) the Mortgage Rate (separately identifying the Excess Rate and the
Revised Rate, if any), including the interest calculation convention (i.e.,
"30/360" or "actual/360");
(d) the Net Mortgage Rate in effect at the Cut-Off Date;
(e) the original principal balance;
(f) the original term to stated maturity, remaining term to
stated maturity, and Maturity Date;
(g) the original and remaining amortization terms;
(h) the Stated Principal Balance as of the Cut-Off Date;
(i) the loan-to-value ratio as of the Cut-Off Date;
(j) the applicable Servicing Fee Rate as of the Cut-Off Date;
(k) the applicable Loan Number;
(l) the number of Mortgaged Properties securing such Mortgage
Loan;
(m) the Anticipated Repayment Date, if any;
(n) the Originator; and
(o) the applicable Loan Group.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clauses (e) and (h) above for all of the Mortgage Loans.
"Mortgage Loan Seller": Each of Falcon and GSMC.
"Mortgage Rate": With respect to any Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan as stated in the related Note, in
each case without giving effect to the Excess Rate or the Default Rate with
respect to any Mortgage Loan. Notwithstanding the foregoing, if any Mortgage
Loan does not accrue interest on the basis of a 360-day year consisting of
twelve 30-day months, then, for purposes of calculating the WAC Rate, the
Mortgage Rate of such Mortgage Loan for any one-month period preceding a related
Due Date shall be the annualized rate at which interest would have to accrue in
respect of such Mortgage 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 Mortgage Loan during such one-month period
at the related Mortgage Rate; provided, however, that with respect to each
Mortgage Loan which accrues interest on the basis of a 360-day year and the
actual number of days, (i) the Mortgage Rate for the one-month period preceding
the Due Dates in January and February in any year which is not a leap year and
in February in any year which is a leap year, shall be determined net of any
Withheld Amounts and (ii) the Mortgage Rate for the one-month period preceding
the Due Date in March shall be determined taking into account the addition of
any such Withheld Amounts.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain Mortgage Loans, a leasehold estate, or both a leasehold estate and a
fee simple estate, or a leasehold estate in a portion of the property and a fee
simple estate in the remainder, in a parcel of land improved by a commercial
property, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(c).
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other Loan Documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan (including an REO Mortgage Loan) net of the amount of (i)
Liquidation Expenses incurred with respect thereto and, (ii) with respect to
proceeds received in connection with the taking of a Mortgaged Property (or
portion thereof) by the power of eminent domain in condemnation, amounts
required to be applied to the restoration or repair of the related Mortgaged
Property.
"Net Mortgage Rate": With respect to any Mortgage Loan and any Distribution
Date, the per annum rate equal to the Mortgage Rate for such Mortgage Loan minus
the related Servicing Fee Rate (adjusted if necessary to accrue on the basis of
a 360-day year consisting of twelve 30-day months); provided, however, that for
purposes of calculating any Pass-Through Rate, the Net Mortgage Rate of such
Mortgage Loan shall be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Special
Servicer or resulting from bankruptcy, insolvency or similar proceeding
involving the related Borrower.
"Net REO Proceeds": With respect to each REO Property and any related REO
Mortgage Loan, REO Proceeds with respect to such REO Property or REO Mortgage
Loan (other than the proceeds of a liquidation thereof) net of any insurance
premiums, taxes, assessments, ground rents and other costs and expenses
permitted to be paid therefrom pursuant to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Master Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit Q-8 attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit Q-8 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Non-U.S. Person": A person other than a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which,
in the good faith business judgment of the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, will not or, in the
case of a proposed Advance, would not be ultimately recoverable from late
payments, Insurance Proceeds, Liquidation Proceeds and other collections on or
in respect of the related Mortgage Loan, in any case taking into account all
prior unreimbursed Advances and the likelihood of recovery of anticipated
Advance Interest Amounts. The judgment or determination by the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced in the case of the Master Servicer or
Special Servicer, by a certificate of a Servicing Officer delivered to the
Trustee, the Fiscal Agent, the Seller and, in the case of the Special Servicer,
to the Master Servicer, and in the case of the Trustee or the Fiscal Agent, by a
certificate of a Responsible Officer of the Trustee or Fiscal Agent, as
applicable, delivered to the Seller (and the Trustee if the certificate is from
the Fiscal Agent), which in each case sets forth such judgment or determination
and the procedures and considerations of the Master Servicer, Special Servicer,
Trustee or Fiscal Agent, as applicable, forming the basis of such determination
(including, but not limited to, information selected by the Person making such
judgment or determination in its good faith discretion, such as related income
and expense statements, rent rolls, occupancy status, property inspections,
Master Servicer, Special Servicer, Trustee or Fiscal Agent inquiries, third
party engineering and environmental reports, and an appraisal conducted by an
MAI appraiser in accordance with MAI standards or any Updated Appraisal thereof
conducted within the past 12 months; copies of such documents to be included
with the certificate of a Responsible Officer). Any determination of
non-recoverability made by the Master Servicer may be made without regard to any
value determination made by the Special Servicer other than pursuant to an
Updated Appraisal. In addition, upon the determination by the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent that an Advance with
respect to any Mortgage Loan would be a Nonrecoverable Advance, any future
Advances with respect to such Mortgage Loan shall be deemed to be Nonrecoverable
Advances until notice to the contrary is received from the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as the case may be.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Master Servicer, the Seller or any Holder of a Class LR Certificate pursuant to
Section 9.01(c).
"Notional Amount": For any date of determination, (a) with respect to the
Class X Certificates, a notional principal amount equal to the aggregate of the
principal amounts of the Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC,
Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ and Class LK
Interests, corresponding to the Certificate Principal Amounts of the Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates, respectively, as of the preceding
Distribution Date (after giving effect to the distributions of principal on such
Distribution Date) or, in the case of the first Distribution Date, as of the
Closing Date, and (b) in the case of each Component, the amount set forth in the
applicable definition thereof.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer or the Special Servicer, as the case may be, customarily
performing functions similar to those performed by any of the above designated
officers and also with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject, or an authorized officer of the Seller, and
delivered to the Seller, the Trustee or the Master Servicer, as the case may be.
"Operating Statement Analysis": With respect to each Mortgage Loan and REO
Mortgage Property, a report substantially containing the content described in
Exhibit Q-7 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Seller, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor"), (c)
qualification of the Grantor Trust as a grantor trust or (d) a resignation of
the Master Servicer pursuant to Section 6.04, must be an opinion of counsel who
is Independent of the Seller, the Special Servicer and the Master Servicer.
"Originator": Each of AMRESCO Capital, L.P., a Delaware limited
partnership, Archon, Central Park Capital, L.P., a Delaware limited partnership,
Falcon, GSMC and MF VMF, LLC, a Delaware limited liability company.
"Other Americold Pool Loan": As defined in Section 2.01.
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to but without duplication,
payment or reimbursement of interest thereon at the Advance Rate through the
date of payment or reimbursement.
"Pass-Through Rate": Each of the Class A-1 Pass-Through Rate, the Class A-2
Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class X Pass-Through
Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate and the Class K Pass-Through Rate. The Class Q, Class R and
Class LR Certificates do not have Pass-Through Rates.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Payment Reserve Account": The account created and maintained by the
Trustee pursuant to Section 3.05(e), which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, Payment Reserve
Account" and which shall be an Eligible Account.
"Payment Reserve Release Date": The earlier to occur of (a) the
Distribution Date immediately following the Distribution Date on which the
Certificate Principal Amount of the Class A-3 Certificates has been reduced to
zero (or the Distribution Date on which such reduction occurs, if any other
Class of Certificates would be entitled to distributions in reduction of the
Certificate Principal Amount thereof on such Distribution Date in accordance
with Section 4.01, without regard to amounts held in the Payment Reserve
Account); or (b) the Distribution Date immediately following the earliest of (i)
receipt of any unscheduled payment of principal on any Mortgage Loan (other than
a Principal Prepayment in full on any ARD Loan on its Anticipated Repayment
Date), (ii) occurrence of a delinquency of 60 days or more with respect to any
Mortgage Loan, or (iii) failure of any Mortgage Loan to be paid in full on its
Maturity Date (or, with respect to any ARD Loan, on its Anticipated Repayment
Date) or within 30 days thereafter.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class Q, Class R and
Class LR Certificates), the percentage interest is equal to the initial
denomination of such Certificate divided by the initial Certificate Principal
Amount or Notional Amount, as applicable, of such Class of Certificates. With
respect to any Class Q, Class R or Class LR Certificate, the percentage interest
is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn
and a maximum maturity of 365 days, regardless of whether issued by the Seller,
the Master Servicer, the Trustee or any of their respective Affiliates and
having at all times the required ratings, if any, provided for in this
definition, unless each Rating Agency shall have confirmed in writing to the
Master Servicer that a lower rating would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of: the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); provided,
however, that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change, (B) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index, and (C) such
investments must not be subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit System (consolidated system-wide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however, that the
investments described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change, (B)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (C) such investments
must not be subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or similar
deposits, bankers' acceptances and repurchase agreements of any 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 S&P or Fitch, otherwise
acceptable to S&P or Fitch, as applicable, as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates); provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must not be
subject to liquidation prior to their maturity;
(v) demand and time deposits in, or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, the short term obligations of which are rated
in the highest short term rating category by each Rating Agency (or, if not
rated by S&P or Fitch, otherwise acceptable to S&P or Fitch, as applicable,
as confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates); provided, however, that the
investments described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change, (B)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (C) such investments
must not be subject to liquidation prior to their maturity;
(vi) debt obligations rated by each Rating Agency (or, if not rated by
S&P or Fitch, otherwise acceptable to S&P or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest long-term unsecured
rating category; provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must not be
subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
that is rated by each Rating Agency (or, if not rated by S&P or Fitch,
otherwise acceptable to S&P or Fitch, as applicable, as confirmed in
writing that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned
to the Certificates) in its highest short-term unsecured money market fund
rating; provided, however, that the investments described in this clause
must (A) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately with that index,
and (C) such investments must not be subject to liquidation prior to their
maturity;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund") so
long as the Fund is rated by each Rating Agency in its highest short-term
unsecured debt ratings category (or, if not rated by S&P or Fitch,
otherwise acceptable to S&P or Fitch, as applicable, as confirmed in
writing that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned
to the Certificates); and
(ix) any other demand, money market or time deposit, demand obligation
or any other obligation, security or investment, provided that each Rating
Agency has confirmed in writing to the Master Servicer, Special Servicer or
Trustee, as applicable, that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates;
provided, however, that, in the judgment of the Master Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments, (ii) the right to
receive principal and interest payments derived from the underlying investment
provides a yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment or (iii) the rating for such instrument or
security includes an "r" designation.
Notwithstanding the foregoing, to the extent that the Loan Documents with
respect to a particular Mortgage Loan require the funds in the related Borrower
Accounts to be invested in investments other than those itemized in clause (i)
through (ix) above, the Master Servicer shall invest the funds in such Borrower
Accounts in accordance with the terms of the related Loan Documents.
"Permitted Transferee": With respect to a Class R or Class LR Certificate,
any Person that is a Qualified Institutional Buyer other than (a) a Disqualified
Organization, (b) any other Person so designated by the Certificate Registrar
based upon an Opinion of Counsel (provided at the expense of such Person or the
Person requesting the Transfer) to the effect that the Transfer of an Ownership
Interest in any Class R or Class LR Certificate to such Person may cause the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that the Certificates are outstanding, (c) a Person that is a Disqualified
Non-U.S. Person and (d) a Plan or any Person investing the assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, 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(k).
"Prepayment Assumption": The assumption that there will be zero prepayments
with respect to the Mortgage Loans, other than the ARD Loans, which are assumed
to prepay in full on their Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Distribution Date, for
each Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Prepayment Period, which Principal Prepayment was applied to such
Mortgage Loan after the Due Date in such Prepayment Period, the amount of
interest that accrued for such Mortgage Loan on the amount of such Principal
Prepayment during the period commencing on the date after such Due Date and
ending on the date as of which such Principal Prepayment was applied to the
unpaid principal balance of the Mortgage Loan, inclusive, to the extent
collected from the related Borrower.
"Prepayment Interest Shortfall": With respect to any Distribution Date, for
each Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Prepayment Period, which Principal Prepayment was applied to such
Mortgage Loan prior to the Due Date in such Prepayment Period, the amount of
interest, to the extent not collected from the related Borrower, that would have
accrued such Mortgage Loan on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to the unpaid principal balance of the Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
"Prepayment Period": With respect to any Distribution Date, the period
beginning the day after the Determination Date in the month immediately
preceding the month in which such Distribution Date occurs (or on the Cut-Off
Date, in the case of the first Distribution Date) through and including the
Determination Date immediately preceding such Distribution Date.
"Principal Distribution Amount": For any Distribution Date and a Loan Group
will be equal to the sum, without duplication, of:
(i) the principal component of all scheduled Monthly Payments which
became due on the related Due Date (if received, or advanced by the Master
Servicer, the Trustee or Fiscal Agent, in respect of such Distribution
Date) with respect to the Mortgage Loans in such Loan Group;
(ii) the principal component of any payment on any Mortgage Loan in
such Loan Group received or applied on or after the date on which such
payment was due in the related Prepayment Period, net of the principal
portion of any unreimbursed P&I Advances related to such Mortgage Loan;
(iii) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan in such Loan Group (other than any amounts applied as AIMCO
Multifamily Pool Conditional Debt) received or applied during the related
Prepayment Period, net of the principal portion of any unreimbursed P&I
Advances related to such Mortgage Loan; and
(iv) the Principal Shortfall, if any, for such Distribution Date and
Loan Group.
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof. The Principal Distribution Amount for Group
1 will be decreased by the amount of any payments on the Mortgage Loans
deposited during the applicable Prepayment Period into the Payment Reserve
Account pursuant to Section 3.05(e). On the Payment Reserve Release Date, the
Principal Distribution Amount for Group 1 will be increased by the amount of any
funds released for such Distribution Date from the Payment Reserve Account
representing principal collections on Mortgage Loans in Group 1. After the date
upon which either (A) the Class A-1 and Class A-2 Certificates have been reduced
to zero, or (B) the Class A-3 Certificates have been reduced to zero, the
Principal Distribution Amount for both Loan Groups will not be reduced by any
amounts deposited in the Payment Reserve Account.
"Principal Prepayment": Any payment of principal made by a Borrower 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 the full amount of
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Principal Recovery Percentage": With respect to (i) any Specially Serviced
Mortgage Loan with a Stated Principal Balance greater than or equal to
$50,000,000, 0.75%, and (ii) any Specially Serviced Mortgage Loan with a Stated
Principal Balance less than $50,000,000, 1.00%.
"Principal Shortfall": For any Distribution Date and any Loan Group, the
amount, if any, by which (i) the Principal Distribution Amount for the preceding
Distribution Date for such Loan Group exceeds (ii) the aggregate amount actually
distributed with respect to principal on one or more Classes of Certificates on
such preceding Distribution Date in respect of such Principal Distribution
Amount.
"Private Global Certificate": Each of the Regulation S Global Certificate
or Rule 144A Global Certificate with respect to the Class F, Class G, Class H,
Class J and Class K Certificates so long as any such Class of Certificates is
registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, pursuant to Section 3.04 or Section 3.22, as applicable. Each
reference to the payment or reimbursement of a Property Advance shall be deemed
to include, whether or not specifically referred to, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such Advance through and including the date of payment or reimbursement.
Pursuant to the terms of the Co-Lender Agreement, Property Advances with respect
to the Americold Loan will be required to be made by the servicer under the
Series 1998-GL II Pooling Agreement and the Master Servicer shall reimburse such
servicer with respect to such Servicing Advances as required pursuant to the
Co-Lender Agreement.
"Property Protection Expenses": Any costs and expenses incurred by the
Master Servicer, the Special Servicer or the Trustee pursuant to Sections 3.04,
3.08, 3.10(f), 3.10(g), 3.10(i) and 3.17(b) or indicated herein as being a cost
or expense of the Lower-Tier REMIC (in respect of the Mortgage Loans), in each
case to be advanced by the Master Servicer, the Special Servicer or the Trustee,
as applicable.
"Public Global Certificate": Each of the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class X Certificates so long as any such
Class of Certificates is registered in the name of a nominee of the Depository.
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": As used in Sections 3.08 and 5.08, in the case of (i)
all policies not referred to in clause (ii) below, (a) an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction and whose claims paying ability is rated (x) in one of
the three highest applicable rating categories by at least two nationally
recognized statistical rating organizations (one of which must be S&P), and (y)
either "A" by Fitch or at least A-IX by Best's Rating Guide, or (b) a company
approved in the Loan Documents for any particular Mortgage Loan, and (ii) in the
case of the fidelity bond and the errors and omissions insurance required to be
maintained pursuant to Section 3.08(c), shall have a claim paying ability rated
by each Rating Agency (and if such company is not rated by Fitch, is rated A-IX
by Best's Key Rating Guide) no lower than two ratings categories (without regard
to pluses or minuses) lower than the highest rating of any outstanding Class of
Certificates from time to time, but in no event lower than "BBB" by Fitch and
S&P unless in the case where such insurance is not rated by one or more Rating
Agencies or where such insurance has a claims paying ability rated by one or
more Rating Agencies in a rating category lower than required herein, either (a)
such insurer's obligations are guaranteed or backed by a company having such a
claim-paying ability rating, or (b) each such Rating Agency has confirmed in
writing that obtaining the related insurance from an insurance company that is
not rated by such Rating Agency (subject to the foregoing exceptions) or that
has a lower claims paying ability than such requirements shall not result, in
and of itself, in a downgrade, qualification or withdrawal of the then current
ratings by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar successor provision).
"Rated Final Distribution Date": The Distribution Date occurring in October
2030.
"Rating Agency": Any of S&P or Fitch. References herein to the highest
long-term unsecured debt rating category of S&P and Fitch shall mean "AAA" and
in the case of any other rating agency shall mean such highest rating category
or better without regard to any plus or minus or numerical qualification.
"Rating Agency Monitoring Fee": The annual monitoring and surveillance fees
charged by the Rating Agencies, plus any fees charged by the Rating Agencies in
connection with assumptions of Mortgage Loans or written confirmations obtained
from such Rating Agencies relating to the ratings of the Certificates. The
Master Servicer shall pay, from its own funds, the annual monitoring and
surveillance fees for S&P. On or prior to the Closing Date, the Seller shall pay
a one time annual monitoring and surveillance fee for Fitch.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the amount, if any,
by which (A) the aggregate Certificate Principal Amount of the Certificates,
after giving effect to distributions on such Distribution Date exceeds (B) the
sum of (x) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to any payments of principal received or advanced with respect to
the Due Date occurring immediately prior to such Distribution Date plus (y)
prior to the Payment Reserve Release Date, any payments on the Mortgage Loans
deposited into the Payment Reserve Account pursuant to Section 3.05(e).
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(viii).
"Record Date": With respect to each Distribution Date and each Class of
Certificates, the close of business on the last day of the month immediately
preceding the month in which such Distribution Date occurs, or if such day is
not a Business Day, the immediately preceding Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class X
Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificates": As defined in Section 5.01.
"Regulation S Investor": With respect to a transferee of a Regulation S
Global Certificate, a transferee that acquires such Certificate pursuant to
Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in the
form of Exhibit K-1 or Exhibit K-2 hereto, as applicable.
"Rehabilitation Fee": As to any Mortgage Loan that has been a Specially
Serviced Mortgage Loan, on the occasion that such Mortgage Loan has not been a
Specially Serviced Mortgage Loan for three consecutive Collection Periods, an
amount equal to the Principal Recovery Percentage of the highest Stated
Principal Balance of such Mortgage Loan while it was a Specially Serviced
Mortgage Loan; provided, however, that such Rehabilitation Fee shall be due only
once for each Mortgage Loan during the term of this Agreement.
"Reinvestment Enhancement Instrument": Either (a) an irrevocable letter of
credit in the amount of $2,990,126, issued by ABN AMRO Bank N.V. in favor of the
Trustee on behalf of the Certificateholders as beneficiary, substantially in the
form attached hereto as Exhibit R, or (b) funds maintained in the Reinvestment
Reserve Account established by the Trustee pursuant to Section 4.08, or (c)
another instrument or obligation provided by or on behalf of the Seller in
accordance with Section 4.08 in lieu of either of the assets described in (a) or
(b) hereof. The Reinvestment Enhancement Instrument shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Reinvestment Reserve Account": The account created and maintained by the
Trustee pursuant to Section 4.08, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, Reinvestment
Reserve Account" and which shall be an Eligible Account. All funds at any time
held in such account shall be invested in Permitted Investments at the direction
of the Seller. The Reinvestment Reserve Account shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class of Lower-Tier Regular Interest, the related Certificates set forth below,
and for any Class of Sequential Pay Certificates, the related Class of
Lower-Tier Regular Interest set forth below:
<PAGE>
Related Lower-Tier
Related Certificate Regular Interest
------------------- ------------------
Class A-1 Class LA-1
Class A-2 Class LA-2
Class A-3 Class LA-3
Class B Class LB
Class C Class LC
Class D Class LD
Class E Class LE
Class F Class LF
Class G Class LG
Class H Class LH
Class J Class LJ
Class K Class LK
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily furnished
in connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property within the
meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such
charges are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Master Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit Q-5 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 [Determination] Date immediately preceding the
preparation of such report, (i) the acquisition date of such REO Property, (ii)
the amount of income collected with respect to any REO Property net of related
expenses and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent appraisal or other valuation thereof available to the Special
Servicer as of such date of determination (including any prepared internally by
the Special Servicer).
"Repurchase Price": With respect to a Mortgage Loan shall be equal to the
sum of:
(i) the outstanding principal balance of such Mortgage Loan as of the
date of purchase;
(ii) 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;
(iii) all related unreimbursed Property Advances (including any
Property Advances made or due and owing with respect to the Americold Pool
Loan pursuant to the terms of the Co-Lender Agreement) plus accrued and
unpaid interest on all related Advances at the Advance Rate and accrued and
unpaid Special Servicing Fees allocable to such Mortgage Loan; and
(iv) all reasonable out-of-pocket expenses reasonably incurred by the
Master Servicer, the Special Servicer, the Seller and the Trustee in
respect of the breach giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the repurchase obligation,
which are reimbursable to such parties pursuant to the terms herein.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Account Reinvestment Requirement": For any Distribution Date,
one-twelfth (1/12) of the product of (x) the amount of payments on the Mortgage
Loans deposited in the Payment Reserve Account prior to the month in which such
Distribution Date occurs and (y) the weighted average of the Net Mortgage Rates
on the Mortgage Loans in Group 1 with respect to which principal payments have
previously been deposited in the Payment Reserve Account, with weighting
determined for purposes of such calculation based on the aggregate amount of
such principal payments on each such Mortgage Loan deposited in the Payment
Reserve Account prior to the month in which such Distribution Date occurs.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve 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 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. To the extent not inconsistent with the related Mortgage Loan,
each such Reserve Account shall be an Eligible Account.
"Residual Certificates": The Class R and Class LR Certificates.
"Responsible Officer": Any officer of the Asset-Backed Securities Trust
Services Group of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Master Servicer
by the Trustee and the Fiscal Agent, as such list may from time to time be
amended.
"Responsible Party": Each of ACLI, ACMFLP, GSMC and Falcon, in their
capacity of making certain representations and warranties in this Agreement.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the Underwriter and any other distributor (as
defined in Regulation S) of the Certificates, and (b) the Closing Date.
"Revised Rate": With respect to any ARD Loan, the revised Mortgage Rate on
each such ARD Loan (in the absence of a default), as set forth on the Mortgage
Loan Schedule.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificates": As defined in Section 5.01.
"S&P": Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., or its successor in interest.
"Scheduled Final Distribution Date": The Distribution Date occurring in
[April] 2028.
"Securities Legend": With respect to each Rule 144A Global Certificate,
Residual Certificate or any Individual Certificate, the legend set forth in, and
substantially in the form of, Exhibit F hereto.
"Seller": GS Mortgage Securities Corporation II, a Delaware corporation,
and its successors and assigns.
"Sequential Pay Certificates": The Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates, collectively.
"Series 1998-GL II": As defined in Section 2.01.
"Series 1998-GL II Master Servicer": GMACCM in its capacity as master
servicer under the Series 1998-GL II Pooling Agreement.
"Series 1998-GL II Pooling Agreement": That certain Pooling and Servicing
Agreement, dated as of May 11, 1998, among the Seller, the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, relating to the Series
1998-GL II.
"Series 1998-GL II Special Servicer": GMACCM in its capacity as special
servicer under the Series 1998-GL II Pooling Agreement.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of the Servicing Fee Rate and
the Stated Principal Balance of such Mortgage Loan, computed for the same number
of days respecting which any related interest payment due or deemed due on the
related Mortgage Loan is computed pursuant to the terms of the Mortgage Note and
applicable law. Such amount includes the compensation payable to the Master
Servicer and the Trustee Fee. With respect to any Distribution Date, to the
extent that there are Prepayment Interest Shortfalls with respect to Principal
Prepayments received during the related Collection Period, the Servicing Fee to
which the Master Servicer would otherwise be entitled to with respect to all the
Mortgage Loans for such Distribution Date (but not the fees payable to the
Special Servicer, the Trustee or the Rating Agencies) shall be reduced by the
amount sufficient to fully offset such Prepayment Interest Shortfalls; provided,
however, that in no event shall the amount of such reduction exceed 1/12 of
0.04% of the Stated Principal Balance of the Mortgage Loans for the related
Collection Period.
"Servicing Fee Rate": A per annum rate equal to 0.1275% (or, with respect
to the Mortgage Loans whose Loan Numbers set forth in the Mortgage Loan Schedule
are Loan Numbers O0148 and O0393, 0.2275%).
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or this Agreement and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's or employee's knowledge of and familiarity
with the particular subject, and, in the case of any certification required to
be signed by a Servicing Officer, such an officer or employee whose name and
specimen signature appears on a list of servicing officers furnished to the
Trustee by the Master Servicer or the Special Servicer, as applicable, as such
list may from time to time be amended.
"Servicing Standard": With respect to the Master Servicer or Special
Servicer shall mean the servicing of the Mortgage Loans by the Master Servicer
or Special Servicer in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Master Servicer or Special Servicer as
the case may be, in the exercise of its good faith and reasonable judgment) and
in accordance with applicable law, the specific terms of the respective Mortgage
Loans and this Agreement, and, in the case of the Americold Pool Loan, the
Co-Lender Agreement, and to the extent not inconsistent with the foregoing, in
the same manner in which, and 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, and in each event with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans or, if a Mortgage Loan comes into and continues in default
and if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collection that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate), but in any
case without regard to:
(i) any known relationship that the Master Servicer, the Special
Servicer or any Affiliate of the Master Servicer or the Special Servicer
may have with any Borrower or any other parties to this Agreement;
(ii) the ownership of any Certificate by the Master Servicer, the
Special Servicer or any Affiliate of the Master Servicer or Special
Servicer, as applicable;
(iii) the Master Servicer's or Special Servicer's obligation, as
applicable, to make Advances; or
(iv) 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 for its
services hereunder or with respect to any particular transaction.
"Special Servicer": GMACCM or its successor in interest, or any successor
Special Servicer appointed as provided herein.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicer's Appraisal Reduction Estimate": As defined in the
definition of Appraisal Reduction Amount.
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Special Servicing Fee, the Rehabilitation Fee, and the Liquidation Fee which
shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Interest Accrual Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan; provided,
that in connection with any partial interest payment, such amounts shall be
computed for the same period respecting which any related interest payment due
or deemed due on the related Mortgage Loan is computed; provided further, that
such fee for the first Interest Accrual Period shall be appropriately prorated
to reflect the fact that the first Interest Accrual Period is less than a full
month.
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Specially Serviced Mortgage Loan": Subject to Section 3.24, any Mortgage
Loan (other than the Americold Pool Loan) with respect to which:
(i) the related Borrower has not made two consecutive Monthly Payments
(and has not cured at least one such Delinquency by the next Due Date under
the related Mortgage Loan), or any Balloon Mortgage Loan is delinquent as
to its Balloon Payment for more than 30 days;
(ii) the related Borrower has expressed to the Master Servicer an
inability to pay or a hardship in paying the Mortgage Loan in accordance
with its terms;
(iii) the Master Servicer has received notice that the related Borrower
has become the subject of any bankruptcy, insolvency or similar proceeding,
admitted in writing the inability to pay its debts as they come due or made
an assignment for the benefit of creditors;
(iv) the Master Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged Property securing such
Mortgage Loan;
(v) a default of which (a) the Master Servicer has notice (other than a
failure by the related Borrower to pay principal or interest) and (b) which
materially and adversely affects the interests of the Certificateholders
has occurred and remains unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace period is specified, 60
days); provided that a default requiring a Property Advance shall be deemed
to materially and adversely affect the interests of the Certificateholders;
or
(vi) in the opinion of the Master Servicer (consistent with the
Servicing Standard) a default under a Mortgage Loan is imminent and such
Mortgage Loan deserves the attention of the Special Servicer;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause (i) above,
when the Borrower thereunder has brought the Mortgage Loan current and
thereafter made three consecutive full and timely Monthly Payments
including pursuant to any workout of the Mortgage Loan;
(b) with respect to the circumstances described in clause (ii), (iii),
(iv) and (vi) above, when such circumstances cease to exist in the good
faith judgment of the Special Servicer; or
(c) with respect to the circumstances described in clause (v) above,
when such default is cured;
provided, in any case, that at that time no circumstance identified in clauses
(i) through (vi) above exists that would cause the Mortgage Loan to continue to
be characterized as a Specially Serviced Mortgage Loan.
In the event the Other Americold Pool Loan becomes a specially serviced
mortgage loan under the terms of the Series 1998-GL II Pooling Agreement, the
Americold Pool Loan shall be a Specially Serviced Mortgage Loan under this
Agreement. Pursuant to the Co-Lender Agreement, the special servicer under the
Series 1998-GL II Pooling Agreement will be required to specially service both
mortgage loans. When the Other Americold Pool Loan ceases to be a specially
serviced mortgage loan under the Series 1998-GL II Pooling Agreement, the
Americold Pool Loan shall cease to be a Specially Serviced Mortgage Loan
hereunder.
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance (or, with respect
to the AIMCO Multifamily Pool Loan, the AIMCO Multifamily Pool Agreed Valuation
Amount) as of the Cut-Off Date of such Mortgage Loan, minus (b) the sum of (i)
the principal portion of each Monthly Payment due on such Mortgage Loan after
the Cut-Off Date and prior to such date of determination, if received from the
Borrower or advanced by the Master Servicer, the Special Servicer, Trustee, or
Fiscal Agent, (ii) all voluntary and involuntary principal prepayments and other
unscheduled collections of principal received with respect to such Mortgage
Loan, to the extent distributed to Certificateholders or applied to other
payments required under this Agreement before such date of determination and
(iii) any adjustment thereto as a result of a reduction of principal by a
bankruptcy court or as a result of a modification reducing the principal amount
due on such Mortgage Loan (or, with respect to the AIMCO Multifamily Pool Loan,
the AIMCO Multifamily Pool Agreed Valuation Amount). The Stated Principal
Balance of a Mortgage Loan with respect to which title to the related Mortgaged
Property has been acquired by the Trust Fund is equal to the principal balance
thereof outstanding on the date on which such title is acquired less any Net REO
Proceeds allocated to principal on such Mortgage Loan. The Stated Principal
Balance of a Specially Serviced Mortgage Loan with respect to which the Special
Servicer has made a Final Recovery Determination is zero.
"Strip Holder": John B. Levey or any heir, successor or assign with respect
to the Broker Strip Amounts.
"Subordinate Certificates": Any of the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates.
"Tax Returns": The federal income tax return on IRS 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
the Upper-Tier REMIC or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Treasury Regulations": Applicable final or temporary regulation of the
U.S. Department of the Treasury.
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-Off Date (other than any GSMC Retained Interest
Amounts); (iii) any REO Property; (iv) all revenues received in respect of any
REO Property; (v) the Master Servicer's and the Trustee's rights under the
insurance policies with respect to the Mortgage Loans required to be maintained
pursuant to this Agreement and any proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any security agreements; (vii) any indemnities or
guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Collection Account, the Lower-Tier Distribution Account,
the Upper-Tier Distribution Account, the Excess Interest Distribution Account,
the Interest Reserve Account, the Payment Reserve Account, the Reinvestment
Reserve Account, the Class Q Distribution Account and any REO Account including
reinvestment income thereon; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi)
the Reinvestment Enhancement Instrument.
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a national banking association, in its
capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Trustee Fee Rate and (ii) the Stated Principal Balance of
such Mortgage Loan; provided, that, in connection with any partial interest
payment, such amounts shall be computed for the same period respecting which any
related interest payment due or deemed due on the related Mortgage Loan is
computed; provided further, that such fee for the first Interest Accrual Period
shall be appropriately prorated to reflect the fact that the first Interest
Accrual Period is less than a full month.
"Trustee Fee Rate": A rate equal to 0.002% per annum.
"Underwriter": Goldman, Sachs & Co.
"Unscheduled Payments": With respect to a Mortgage Loan and a Prepayment
Period, all Net Liquidation Proceeds, Net Insurance Proceeds and net
condemnation proceeds payable under such Mortgage Loan, any Principal
Prepayment, the purchase price of any Mortgage Loan that is purchased pursuant
to Sections 3.18 or 9.01, and any other payments under or with respect to such
Mortgage Loan not scheduled to be made, but excluding Yield Maintenance Charges,
Excess Interest, Default Interest, the Repurchase Price paid for any Mortgage
Loan pursuant to Section 2.03 and any amount paid in connection with the release
of the related Mortgaged Properties through defeasance.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-Off Date and in accordance with MAI standards, the costs of which
shall be paid as a Property Advance by the Master Servicer. Updated Appraisals
shall be conducted by an MAI appraiser selected by the Special Servicer.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, Upper-Tier Distribution
Account" and which must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a corporation,
partnership (except to the extent provided in applicable Treasury regulations)
or other entity created or organized in or under the laws of the United States
or any political subdivision thereof, an estate whose income is subject to
United States federal income tax regardless of its source, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence as of
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class Q, Class R and
Class LR Certificates, (b) 4%, in the case of the Class X Certificates; provided
that the Voting Rights of the Class X Certificates shall be reduced to zero upon
the reduction of the Notional Amount of such Class to zero (the applicable
percentage for such Class is the "Fixed Voting Rights Percentage"); (c) in the
case of any of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates, a
percentage equal to the product of (i) 100% minus the Fixed Voting Rights
Percentage multiplied by (ii) a fraction, the numerator of which is equal to the
aggregate outstanding Certificate Principal Amount of any such Class (which will
be reduced for this purpose by the amount of any Appraisal Reduction Amounts
notionally allocated to such Class, if applicable) and the denominator of which
is equal to the aggregate outstanding Certificate Principal Amounts of all
Classes of Certificates. The Voting Rights of any Class of Certificates shall be
allocated among Holders of Certificates of such Class in proportion to their
respective Percentage Interests. The aggregate Voting Rights of Holders of more
than one Class of Certificates shall be equal to the sum of the products of each
such Holder's Voting Rights and the percentage of Voting Rights allocated to the
related Class of Certificates. Any Certificateholder may transfer its Voting
Rights without transferring its ownership interest in the related Certificates
provided that such Certificateholder provides notice of such transfer to the
Trustee prior to the effectiveness of such transfer.
"WAC Rate": With respect to any Distribution Date, a per annum rate equal
to the weighted average of the Net Mortgage Rates in effect for the Mortgage
Loans as of their respective Due Dates in the month preceding the month in which
such Distribution Date occurs, weighted on the basis of their respective Stated
Principal Balances on such Due Dates; provided, however, for purposes of
calculating the WAC Rate, payments on the Mortgage Loans deposited in the
Payment Reserve Account shall be treated as if they had not been made until such
time as such payments are released from the Payment Reserve Account.
"Watch List": A report substantially containing the content described in
Exhibit Q-6 attached hereto, setting forth, among other things, any Mortgage
Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan.
"Withheld Amounts": As defined in Section 3.25.
"Yield Maintenance Charge": With respect to any Mortgage Loan, the yield
maintenance charge or prepayment premium, if any, payable under the related
Mortgage Note in connection with certain prepayments.
SECTION 1.02 Certain Calculations. Unless otherwise specified herein, the
following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans
shall be made in accordance with the terms of the related Note and
Mortgage.
(b) The portion of any Insurance Proceeds and Net Liquidation Proceeds
in respect of a Mortgage Loan allocable to principal shall equal the total
amount of such proceeds minus (a) any portion thereof payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent pursuant to
the provisions of this Agreement and (b) a portion thereof equal to the
interest component of the Monthly Payment at the related Net Mortgage Rate
from the date as to which interest was last paid by the Borrower up to but
not including the Due Date in the Prepayment Period in which such proceeds
are received.
(c) For purposes of distribution of Yield Maintenance Charges pursuant
to Section 4.01(c) on any Distribution Date, the Class of Certificates as
to which any prepayment shall be deemed to be distributed shall be
determined on the assumption that the portion of the Principal Distribution
Amount paid to the Certificates on such Distribution Date in respect of
principal shall consist first of scheduled payments included in the
definition of Principal Distribution Amount and second of prepayments
included in such definition.
(d) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Master Servicer or the Trustee;
provided, however, that for purposes of calculating distributions on the
Certificates, Principal Prepayments with respect to any Mortgage Loan are
deemed to be received on the date they are applied in accordance with
Section 3.01(b) to reduce the outstanding principal balance of such
Mortgage Loan on which interest accrues.
(e) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred shall be applied to Default Interest and other amounts
due on such Mortgage Loan prior to the application to late fees.
(f) Excess Interest shall not be added to the outstanding principal
balance of the Mortgage Loans notwithstanding that the related Loan
Documents may provide otherwise.
SECTION 1.03 Certain Constructions. For purposes of this Agreement,
references to the most or next most subordinate Class of Certificates
outstanding at any time shall mean the most or next most subordinate Class of
Certificates then outstanding as among the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates; provided, however, that for purposes of determining
the most subordinate Class of Certificates, in the event that the Class A
Certificates are the only Class of Certificates outstanding (other than the
Class X, Class Q, Class LR or Class R Certificates), the Class A Certificates
and the Class X Certificates together will be treated as the most subordinate
Class of Certificates. For purposes of this Agreement, each Class of
Certificates other than the Class Q, Class LR and Class R Certificates shall be
deemed to be outstanding only to the extent its respective Certificate Principal
Amount or Notional Amount has not been reduced to zero; provided, however, that
notwithstanding the foregoing, solely for the purpose of distributing Excess
Interest in accordance with the terms and priorities set forth in Section
4.01(e), any Class of Certificates entitled to distributions of Excess Interest
shall continue to be deemed to be outstanding for so long as the Mortgage Loans
with respect to which such Class is entitled to distributions of Excess Interest
received therefrom (as set forth in Section 4.01(e)) remain outstanding. For
purposes of this Agreement, the Class Q Certificates shall be deemed to be
outstanding so long as there are any Certificates outstanding, and the Class R
and Class LR Certificates shall be deemed to be outstanding so long as the Trust
REMICs have not been terminated pursuant to Section 9.01.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans. The Seller, concurrently with
the execution and delivery hereof, does hereby, sell, transfer, assign, set over
and otherwise convey to the Trustee without recourse (except to the extent
herein provided) all the right, title and interest of the Seller in and to the
Mortgage Loans, including all rights to payment in respect thereof, except as
set forth below, and any security interest thereunder (whether in real or
personal property and whether tangible or intangible) in favor of the Seller,
and all Reserve Accounts, Lock-Box Accounts, the Goldman Group Guaranty, the
Reinvestment Enhancement Instrument, the Co-Lender Agreement and all other
assets included or to be included in the Trust Fund for the benefit of the
Certificateholders. Such transfer and assignment includes all interest and
principal due on or with respect to the Mortgage Loans other than interest and
principal due on or prior to the Cut-Off Date, and, with respect to the GSMC
Retained Interest Loans, the applicable GSMC Retained Interest Amounts. In
connection with such transfer and assignment, the Seller shall make a cash
deposit to the Collection Account in an amount equal to the Cash Deposit. The
Master Servicer shall remit any GSMC Retained Interest Amounts to GSMC in
immediately available funds to an account designated in writing by GSMC promptly
on the Master Servicer Remittance Date immediately following receipt. The Seller
shall cause the Reserve Accounts and Lock-Box Accounts to be transferred to and
held in the name of the Master Servicer on behalf of the Trustee as successor to
the applicable Originator.
In connection with such transfer and assignment, the Seller shall, on or
prior to the Closing Date, deliver to, and deposit with, the Custodian (on
behalf of the Trustee), with copies to the Master Servicer and Special Servicer,
the following documents or instruments with respect to each Mortgage Loan so
assigned (other than the Americold Pool Loan, with respect to items (ii), (iii),
(v) and (viii) below, which have previously been delivered pursuant to the
pooling agreement related to Series 1998-GL II):
(i) the original of the Note, endorsed without recourse to the order of
the Trustee in one of the following forms: "Pay to the order of LaSalle
National Bank, as Trustee for the GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, without
recourse", "Pay to the order of LaSalle National Bank, as Trustee, without
recourse", "Pay to the order of LaSalle National Bank, as Custodian,
without recourse", "Pay to the order of LaSalle National Bank, as Custodial
Agent without recourse", which Note and all endorsements thereon shall,
unless the Mortgage Loan was originated by the related Originator, show a
complete chain of endorsement from the related Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing the
related Originator as mortgagee or, if any such original Mortgage has not
been returned from the applicable public recording office, a copy thereof
certified to be a true and complete copy of the original thereof submitted
for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the jurisdiction in which the Mortgaged Property is located
to either "LaSalle National Bank, as Trustee for the GS Mortgage Securities
Corporation II Commercial Mortgage Pass-Through Certificates, Series
1998-C1, without recourse", "LaSalle National Bank, as Trustee, without
recourse", "LaSalle National Bank, as Custodian, without recourse" or
"LaSalle National Bank, as Custodial Agent, without recourse";
(iv) if the related security agreement is separate from the Mortgage,
the original executed version or counterpart thereof of such security
agreement and the assignment thereof to the Trustee;
(v) a copy of the UCC-1 financing statement, together with an original
executed UCC-2 or UCC-3 financing statement, in a form suitable for filing,
disclosing the assignment to the Trustee of the security interest in the
personal property (if any) constituting security for repayment of the
Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof relating
to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original pro
forma title insurance policy), together with any endorsements thereto;
(viii) if any related Assignment of Leases, Rents and Profits is
separate from the Mortgage, the original executed version, together with an
executed reassignment of such instrument to the Trustee (a "Reassignment of
Assignment of Leases, Rents and Profits") in suitable form for recordation
in the jurisdiction in which the Mortgaged Property is located (which
reassignment, however, may be included in the Assignment of Mortgage and
need not be a separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loan, if
any, and copies of the original environmental indemnities, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties, collateral assignments thereof and any consents of
manager;
(xi) a copy of the related ground lease, if any, as amended, for the
Mortgaged Properties, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and
the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement is separate from the Mortgage
or Loan Agreement, a copy thereof; with respect to the Reserve Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if
any, submitted for filing with respect to the related Originator's security
interest in the Reserve Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-2 or UCC-3 financing statements assigning such
security interest to the Trustee on behalf of the Certificateholders);
(xiv) any and all amendments, modifications and supplements to, and
waivers related to, any of the foregoing;
(xv) [Reserved];
(xvi) any letters of credit and other written agreements related to the
Mortgage Loan; and
(xvii) with respect to the Americold Pool Loan, the Co-Lender
Agreement.
On or promptly following the Closing Date (but in no event later than (x)
thirty Business Days following the Closing Date in the case of clause (1)(a)
below and (y) 60 days following the Closing Date in the case of clauses 1(b) and
2 below), the Seller (or its designee) shall, at its expense, (1) record (a)
each Assignment of Mortgage referred to in Section 2.01(iii) which has not yet
been submitted for recording and (b) each Reassignment of Assignment of Leases,
Rents and Profits referred to in Section 2.01(viii) (if not otherwise included
in the related Assignment of Mortgage) which has not yet been submitted for
recordation; and (2) file each UCC-2 or UCC-3 financing statement referred to in
Section 2.01(v) or (xiii) which has not yet been submitted for filing. In the
event that any such document is lost or returned unrecorded because of a defect
therein, the Seller, or its designee, at the Seller's expense shall use its best
efforts to promptly prepare a substitute document for signature by the Seller,
and thereafter the Seller or such designee shall cause each such document to be
duly recorded. The Trustee shall, promptly upon receipt of the original recorded
copy (and in no event later than five Business Days following such receipt)
deliver such original to the Custodian. Notwithstanding anything to the contrary
contained in this Section 2.01, in those instances where the public recording
office retains the original Mortgage, Assignment of Mortgage or Reassignment of
Assignment of Leases, Rents and Profits, if applicable, after any has been
recorded, the obligations hereunder of the Seller shall be deemed to have been
satisfied upon delivery to the Custodian of a copy of such Mortgage, Assignment
of Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, certified by the public recording office to be a true and complete
copy of the recorded original thereof. If a pro forma title insurance policy has
been delivered to the Custodian in lieu of an original title insurance policy,
the Seller will promptly deliver to the Custodian the related original title
insurance policy upon receipt thereof. The Seller shall promptly cause the
UCC-1's referred to in Section 2.01(v), if not already filed, to be filed in the
applicable public recording office and upon filing will promptly deliver to the
Custodian the related UCC-1, with evidence of filing thereon. Copies of such
recorded or filed documents shall be delivered to the Master Servicer by the
Seller or the Trustee, as applicable.
Notwithstanding anything to the contrary contained in this Section 2.01,
if, on the Closing Date as to any Mortgage Loan, the Seller cannot deliver in
complete and recordable form any one of the assignments in favor of the Trustee
referred to in clauses (iii), (v), (viii) or (xiii) of the definition of
"Mortgage File" solely because of the unavailability of recording information as
to any existing document or instrument, the Seller may provisionally satisfy the
delivery requirements of this Section 2.01(b) by delivering with respect to such
Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit P; provided that all required original
assignments with respect to such Mortgage Loan, in fully complete and recordable
form, are delivered by the Seller for recording within 180 days of the Closing
Date (or within such longer period as the Trustee in its discretion may permit).
The Americold Pool Loan is secured by Mortgaged Properties which also serve
as security for another loan made by GSMC (the "Other Americold Pool Loan"). The
Other Americold Pool Loan is included in a trust fund created in connection with
the issuance of the Seller's Commercial Mortgage Pass-Through Certificates,
Series 1998-GL II ("Series 1998-GL II"). Each of the Americold Pool Loan and the
Other Americold Pool Loan is a pari passu loan, and each is entitled to payments
made by the related Borrower and other amounts received in respect of the
related Mortgaged Properties pro rata on the basis of amounts owing under each
such loan.
Under the terms of the Co-Lender Agreement, the servicer of the Series
1998-GL II will perform the functions of the Master Servicer for both the
Americold Pool Loan and the Other Americold Pool Loan and the special servicer
for the Series 1998-GL II will, to the extent necessary, specially service both
the Americold Pool Loan and the Other Americold Pool Loan, in each case under
the terms of the Co-Lender Agreement and the Series 1998-GL II Pooling
Agreement. Pursuant to the terms of the GSMC Loan Sale Agreement, GSMC has
assigned its rights and obligations under the Co-Lender Agreement to the Seller.
The Seller hereby assigns its rights and obligations under the Co-Lender
Agreement to the Trustee on behalf of the Certificateholders. Nothing herein
shall be deemed to override the provisions of the Co-Lender Agreement or the
Series 1998-GL II Pooling Agreement.
SECTION 2.02 Acceptance by Custodian and the Trustee. If the Seller cannot
deliver any original or certified recorded document described in Section 2.01 on
the Closing Date, the Seller shall use its best efforts, promptly upon receipt
thereof and in any case not later than 45 days from the Closing Date, to deliver
such original or certified recorded documents to the Custodian (unless the
Seller is delayed in making such delivery by reason of the fact that such
documents shall not have been returned by the appropriate recording office in
which case it shall notify the Custodian and the Trustee in writing of such
delay and shall deliver such documents to the Custodian promptly upon the
Seller's receipt thereof). By its execution and delivery of this Agreement, the
Trustee acknowledges the assignment to it of the Mortgage Loans in good faith
without notice of adverse claims and declares that the Custodian holds and will
hold such documents and all others delivered to it constituting the Mortgage
File (to the extent the documents constituting the Mortgage File are actually
delivered to the Custodian) for any Mortgage Loan assigned to the Trustee
hereunder in trust, upon the conditions herein set forth, for the use and
benefit of all present and future Certificateholders. The Trustee agrees to
review each Mortgage File within 45 days after the later of (a) the Trustee's
receipt of such Mortgage File or (b) execution and delivery of this Agreement,
to ascertain that all documents (other than the Environmental Reports referred
to in clause (ix) of Section 2.01 which shall be delivered to the Master
Servicer) referred to in Section 2.01 above (in the case of the documents
referred to in Section 2.01(iv), (v), (vi), (vii) (in the case of any
endorsement thereto) and (viii) and (x) through (xvii), as identified to it in
writing by the Seller) and any original recorded documents referred to in the
first sentence of this Section 2.02 included in the delivery of a Mortgage File
have been received, have been executed, appear to be what they purport to be,
purport to be recorded or filed (as applicable) and have not been torn,
mutilated or otherwise defaced, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. In so doing, the Trustee may
rely on the purported due execution and genuineness of any such document and on
the purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans, identified in the Mortgage Loan Schedule,
appear not to be what they purport to be or have been torn, mutilated or
otherwise defaced, the Trustee shall promptly so notify the Seller and the
applicable Responsible Party by providing a written report, setting forth for
each affected Mortgage Loan, with particularity, the nature of the defective or
missing document. The applicable Responsible Party shall deliver an executed,
recorded or undamaged document, as applicable, or, if the failure to deliver
such document in such form has a material adverse effect on the security
provided by the related Mortgaged Property, the applicable Responsible Party
shall repurchase the related Mortgage Loan, in any case in the manner and within
the time period provided in Section 2.03. None of the Master Servicer, the
Special Servicer and the Trustee shall be responsible for any loss, cost, damage
or expense to the Trust Fund resulting from any failure to receive any document
constituting a portion of a Mortgage File noted on such a report.
The Trustee also hereby acknowledges the assignment to it and receipt by it
of the Goldman Group Guaranty and the Co-lender Agreement and the Reinvestment
Enhancement Instrument described in clause (a) of the definition thereof.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
Illinois and, except as otherwise specifically provided in this Agreement, shall
not remove such instruments from Illinois, as applicable, unless it receives an
Opinion of Counsel (obtained and delivered at the expense of the Person
requesting the removal of such instruments from Illinois) that in the event the
transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after
such removal, the Trustee will possess a first priority perfected security
interest in such instruments.
SECTION 2.03 Representations and Warranties of the Seller and the
Responsible Parties.
(a) Each of the Seller and the Responsible Parties hereby represents and
warrants that:
(i) It is a corporation, limited partnership, or limited liability
company, as applicable, duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(ii) It has taken all necessary action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby, including (in the case of the Seller),
but not limited to, the power and authority to sell, assign and transfer
the Mortgage Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by it and assuming the due authorization, execution and delivery
of this Agreement by each other party hereto, this Agreement and all of the
obligations of such Person hereunder are the legal, valid and binding
obligations of such Person, enforceable in accordance with the terms of
this Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
laws relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance
of its obligations hereunder by such Person will not conflict with any
provision of its certificate of incorporation, limited partnership, or
organization, as applicable, or its bylaws or operating agreement, or any
law or regulation to which it is subject, or conflict with, result in a
breach of or constitute a default under (or an event which with notice or
lapse of time or both would constitute a default under) any of the terms,
conditions or provisions of any agreement or instrument to which such
Person is a party or by which it is bound, or any order or decree
applicable to it, or result in the creation or imposition of any lien on
any of its assets or property, which would materially and adversely affect
the ability of such Person to carry out the transactions contemplated by
this Agreement. Such Person has obtained any consent, approval,
authorization or order of any court or governmental agency or body required
for the execution, delivery and performance by such Person of this
Agreement;
(v) There is no action, suit or proceeding pending against it in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect its ability to carry out its
obligations under this Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage Loan, will
have a valid and perfected security interest of first priority in each of
the Mortgage Loans and any proceeds thereof.
(b) Each Responsible Party hereby makes each of the applicable
representations and warranties listed on Schedule I with respect to the Mortgage
Loans for which it is designated as Responsible Party on the Mortgage Loan
Schedule and agrees to cause to be delivered to the Trustee the applicable
Mortgage Loan Documents in accordance with Sections 2.01 and 2.02.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders and the Master Servicer. No such
representation or warranty shall be limited by the terms of any assignment,
endorsement or allonge included in any Mortgage File.
(d) Upon discovery by the Custodian, the Master Servicer, the Special
Servicer, or the Trustee of a breach of any representation or warranty of the
applicable Responsible Party in this Agreement, with respect to any Mortgage
Loan, or that any document required to be included in the Mortgage File does not
conform to the requirements of Section 2.01, such Person shall give prompt
notice thereof to the applicable Responsible Party, the applicable Loan Seller
and the Seller, and such Responsible Party shall either cure such breach or
document defect or repurchase said Mortgage Loan, at the Repurchase Price,
within 90 days of the receipt of notice of the breach; it being understood and
agreed that none of the Custodian, the Master Servicer, the Special Servicer,
and the Trustee has an obligation to conduct any investigation with respect to
such matters (except, in the case of the Mortgage Files, to the extent provided
in Section 2.01); provided, however, that in the event that such breach or
non-conformity is capable of being cured but not within such 90 day period and
the applicable Responsible Party has commenced and is diligently proceeding with
the cure of such breach or non-conformity within such 90 day period (other than
a breach that would cause a related Mortgage Loan to fail to qualify as a
Qualified Mortgage), the applicable Responsible Party shall have an additional
90 days to complete such cure; provided, further, that with respect to such
additional 90 day period such Responsible Party shall have delivered an
officer's certificate to the Trustee and the Master Servicer setting forth the
reason such breach is not capable of being cured within the initial 90 day
period and what actions such Responsible Party is pursuing in connection with
the cure thereof and stating that such Responsible Party anticipates that such
breach will be cured within the additional 90 day period.
(e) Upon receipt by the Master Servicer from the applicable Responsible
Party of the Repurchase Price for the repurchased Mortgage Loan, the Master
Servicer shall deposit such amount in the Collection Account and the Trustee,
pursuant to Section 3.11, shall, upon receipt of a certificate of a Servicing
Officer certifying as to the receipt by the Master Servicer of the Repurchase
Price and the deposit of the Repurchase Price into the Collection Account
pursuant to this Section 2.03(d), release or cause to be released to the
applicable Responsible Party 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 prepared by the Master
Servicer to vest in the applicable Responsible Party any Mortgage Loan released
pursuant hereto, and the Trustee and the Master Servicer shall have no further
responsibility with regard to such Mortgage File.
(f) In the event that the applicable Responsible Party incurs any expense
in connection with curing a breach of a representation or warranty pursuant to
Section 2.03(c) which also constitutes a default under the related Mortgage
Loan, such Responsible Party shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Master Servicer shall use reasonable efforts in
recovering, or assisting the applicable Responsible Party in recovering, from
the related Borrower the amount of any such expenses.
SECTION 2.04 Representations, Warranties and Covenants of the Master
Servicer and Special Servicer.
(a) GMACCM, in its capacity as Master Servicer and Special Servicer
hereunder, hereby represents, warrants and covenants that as of the Closing Date
or as of such date specifically provided herein:
(i) The Master Servicer and the Special Servicer is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of California; the Master Servicer and the Special Servicer is, and
throughout the term of this Agreement shall remain, to the extent necessary
duly authorized and qualified to transact in the jurisdiction where any
Mortgaged Property is located any and all business contemplated by this
Agreement; the Master Servicer and the Special Servicer, possesses and
shall continue to possess all requisite authority, power, licenses,
permits, franchise, and approvals to conduct its business and to execute,
deliver, and comply with its obligations under this Agreement;
(ii) The execution and delivery of this Agreement and the Master
Servicer's and the Special Servicer's performance of and compliance with
the terms hereof in the manner contemplated by this Agreement will not
violate the Articles of Incorporation or By-Laws of the Master Servicer or
the Special Servicer, respectively, or any other instrument governing its
operations, or any laws, regulations, orders or decrees of any governmental
authority applicable to the Master Servicer or the Special Servicer,
respectively, and will not constitute a default (or any event which, with
notice or lapse of time or both, would constitute a default) under any
contract, agreement, or other instrument to which the Master Servicer or
the Special Servicer, respectively, is a party or which may be applicable
to any of its assets;
(iii) The Agreement constitutes a valid, legal, and binding obligation
of the Master Servicer and the Special Servicer, enforceable against it in
accordance with its terms, subject to bankruptcy laws and other similar
laws of general application affecting rights of creditors and subject to
the application of the rules of equity, including those respecting the
availability of specific performance;
(iv) The Agreement has been duly executed and delivered by the Master
Servicer and the Special Servicer;
(v) All consents, approvals, authorizations, orders or filings of or
with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Master
Servicer and the Special Servicer, have been obtained or made; and
(vi) There is no pending action, suit or proceeding, arbitration or
governmental investigation against the Master Servicer and the Special
Servicer, the outcome of which could reasonably be expected to materially
affect the Master Servicer's or Special Servicer's, respectively,
performance under this Agreement.
(b) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Seller and
the Master Servicer or Special Servicer, as the case may be. Upon discovery by
the Seller, the Master Servicer, the Special Servicer or a Responsible Officer
of the Trustee (or upon written notice thereof from any Certificateholder) of a
breach of any of the representations and warranties set forth in this Section
which materially and adversely affects the interests of the Certificateholders,
the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties hereto.
SECTION 2.05 Execution and Delivery of Certificates; Issuance of Lower-Tier
Regular Interests. The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery of the related Mortgage Files to the Custodian (to the
extent the documents constituting the Mortgage Files are actually delivered to
the Custodian), subject to the provisions of Section 2.01 and Section 2.02 and,
concurrently with such delivery, (i) the Trustee acknowledges the issuance of
the Lower-Tier Regular Interests to the Seller and the execution,
authentication, and delivery of the Class LR Certificates to or upon the order
of the Seller, evidencing ownership of the entire Lower-Tier REMIC, in exchange
for the Mortgage Loans (other than the Excess Interest and the Default
Interest), receipt of which is hereby acknowledged, (ii) the Seller hereby
conveys all rights, title and interest in and to the Lower-Tier Regular
Interests to the Trustee and (iii) the Trustee acknowledges that it has executed
and caused to be authenticated and delivered to and upon the order of the
Seller, (A) in exchange for the Lower-Tier Regular Interests and the Excess
Interest, the Regular Certificates and the Class R Certificates and (B) in
exchange for the Default Interest, the Class Q Certificates, in authorized
denominations, registered in the names set forth in such order and duly
authenticated by the Trustee evidencing ownership of the Upper-Tier REMIC and
the undivided interests in the Grantor Trust set forth in Section 2.06(b).
SECTION 2.06 Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH, Class LJ and Class LK Interests are
hereby designated as "regular interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code, and the Class LR Certificates are
hereby designated as the sole class of "residual interests" in the Lower-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Class A-1, Class
A-2, Class A-3, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates are hereby designated as representing
beneficial interests in "regular interests" in the Upper-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code and the Class R Certificates are
hereby designated as the sole class of "residual interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Closing Date is
hereby designated as the "Startup Day" of the Lower-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(1) of the Code is the
Scheduled Final Distribution Date.
(b) The Class Q Certificates represent pro rata undivided beneficial
interests in the Default Interest (subject to the liability of the Trust Fund to
pay interest on Advances at the Advance Rate), the AIMCO Multifamily Pool
Conditional Debt and the Class Q Distribution Account. The Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F and Class G Certificates represent
pro rata undivided beneficial interests in any Excess Interest with respect to
the Mortgage Loans and related portions of the Excess Interest Distribution
Account, pro rata based on their initial Certificate Principal Amounts. The
Class Q Certificates do not represent regular or residual interests in either
the Upper-Tier REMIC or the Lower-Tier REMIC. The Goldman Group is the
beneficial owner of the Reinvestment Enhancement Instrument and the Reinvestment
Reserve Account.
(c) None of the Seller, the Trustee, the Master Servicer, the Fiscal Agent
or the Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as specifically
contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01 Master Servicer to Act as Master Servicer; Administration of
the Mortgage Loans.
(a) The Master Servicer and the Special Servicer, each as an independent
contractor, shall service and administer the Mortgage Loans on behalf of the
Trust Fund and the Trustee (as trustee for Certificateholders) in accordance
with the Servicing Standard. To the extent consistent with the foregoing and
subject to any express limitations set forth in this Agreement (and, with
respect to the Americold Pool Loan, the Co-Lender Agreement), the Master
Servicer and Special Servicer shall seek to maximize the timely and complete
recovery of principal and interest on the Mortgage Loans. Subject only to the
Servicing Standard, the Master Servicer and Special Servicer shall have full
power and authority, acting alone or through sub-servicers (subject to paragraph
(c) of this Section 3.01 and to Section 3.02), to do or cause to be done any and
all things in connection with such servicing and administration which it may
deem consistent with the Servicing Standard and, in its reasonable judgment, in
the best interests of the Certificateholders, including, without limitation,
with respect to each Mortgage Loan, to prepare, execute and deliver, on behalf
of the Certificateholders and the Trustee or any of them: (i) any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien on each Mortgaged Property and related
collateral; (ii) subject to Sections 3.09, 3.10, 3.26 and 3.27, any
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties. Notwithstanding the foregoing, neither the
Master Servicer nor the Special Servicer shall modify, amend, waive or otherwise
consent to any change of the terms of any Mortgage Loan except under the
circumstances described in Sections 3.09, 3.10, 3.26 and 3.27 hereof. The Master
Servicer and Special Servicer shall service and administer the Mortgage Loans in
accordance with applicable law and shall provide to the Borrowers any reports
required to be provided to them thereby. Subject to Section 3.11, the Trustee
shall, upon the receipt of a written request of a Servicing Officer, execute and
deliver to the Master Servicer and Special Servicer any powers of attorney and
other documents prepared by the Master Servicer and Special Servicer and
necessary or appropriate (as certified in such written request) to enable the
Master Servicer and Special Servicer to carry out their servicing and
administrative duties hereunder. Each of the Master Servicer and the Special
Servicer shall indemnify the Trustee for any and all costs, liabilities and
expenses incurred by the Trustee in connection with the negligent or willful
misuse of such powers of attorney by the Master Servicer or the Special
Servicer, as applicable.
The Master Servicer and Special Servicer agree to administer and enforce
the terms of the Co-Lender Agreement on behalf of the Trustee and the Trust Fund
in accordance with the Servicing Standard. Notwithstanding the foregoing, the
Master Servicer and the Special Servicer shall not be required to take any
action with respect to the Americold Pool Loan which would conflict with the
terms of the Co-Lender Agreement or the servicing of the Americold Loan and
Other Americold Loan under the Series 1998-GL II Pooling Agreement.
(b) Unless otherwise provided in the related Loan Documents, the Master
Servicer shall apply any partial Principal Prepayment received on a Mortgage
Loan on a date other than a Due Date to the principal balance of such Mortgage
Loan as of the Due Date immediately following the date of receipt of such
partial Principal Prepayment. Unless otherwise provided in the related Loan
Documents, the Master Servicer shall apply any amounts received on U.S. Treasury
obligations (which shall not be redeemed by the Master Servicer prior to the
maturity thereof) in respect of a Mortgage Loan being defeased pursuant to its
terms to the principal balance of and interest on such Mortgage Loan as of the
Due Date immediately following the receipt of such amounts.
(c) Each of the Master Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided that (i) any such agreement shall be
consistent with the provisions of this Agreement, (ii) no sub-servicer retained
by the Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Master Servicer or the Special Servicer, as applicable, which approval shall
be given or withheld in accordance with the procedures set forth in Sections
3.09, 3.10, 3.26 and 3.27, and (iii) such agreement shall be consistent with the
Servicing Standard. Any such sub-servicing agreement may permit the sub-servicer
to delegate its duties to agents or subcontractors so long as the related
agreements or arrangements with such agents or subcontractors are consistent
with the provisions of this Section 3.01(c). Any sub-servicing agreement entered
into by the Master Servicer or the Special Servicer, as applicable, shall
provide that it may be assumed or terminated by the Trustee, if the Trustee has
assumed the duties of the Master Servicer or the Special Servicer, or by any
successor Master Servicer or Special Servicer, as applicable, without cost or
obligation to the assuming or terminating party or the Trust Fund, upon the
assumption by such party of the obligations of the Master Servicer or the
Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Master Servicer or the Special Servicer, as the case may be, and
such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Master Servicer assumes the obligations
of the Master Servicer, or if the Trustee or any successor Special Servicer
assumes the obligations of the Special Servicer, in each case in accordance with
Section 7.02, the Trustee or such successor, as applicable, to the extent
necessary to permit the Trustee or such successor, as applicable, to carry out
the provisions of Section 7.02, shall, without act or deed on the part of the
Trustee or such successor, as applicable, succeed to all of the rights and
obligations of the Master Servicer or the Special Servicer, as applicable, under
any sub-servicing agreement entered into by the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 3.01(c), subject to the right of
termination by the Trustee set forth in Section 3.01(c). In such event, the
Trustee or the successor Master Servicer or the successor Special Servicer, as
applicable, shall be deemed to have assumed all of the Master Servicer's or the
Special Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or the
Special Servicer, as applicable, prior to such deemed assumption) and to have
replaced the Master Servicer or the Special Servicer, as applicable, as a party
to such sub-servicing agreement to the same extent as if such sub-servicing
agreement had been assigned to the Trustee or such successor Master Servicer or
successor Special Servicer, as applicable, except that the Master Servicer or
Special Servicer, as applicable, shall not thereby be relieved of any liability
or obligations under such sub-servicing agreement that accrued prior to the
succession of the Trustee or the successor Master Servicer or successor Special
Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer or successor
Special Servicer, as applicable, assumes the servicing obligations of the Master
Servicer or the Special Servicer, as applicable, upon request of the Trustee, or
such successor Master Servicer or Special Servicer, as applicable, the Master
Servicer or Special Servicer shall at its own expense deliver to the Trustee or
such successor Master Servicer or Special Servicer, as applicable, all documents
and records relating to any sub-servicing agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held by it,
if any, and will otherwise use its best efforts to effect the orderly and
efficient transfer of any sub-servicing agreement to the Trustee or the
successor Master Servicer or Special Servicer, as applicable.
SECTION 3.02 Liability of the Master Servicer and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
Special Servicer and any Person acting as sub-servicer (or its agents or
subcontractors) or any reference to actions taken through any Person acting as
sub-servicer or otherwise, the Master Servicer or Special Servicer, as
applicable, shall remain obligated and primarily liable for the servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement (and with respect to the Americold Pool Loan, the Co-Lender Agreement)
without diminution of such obligation or liability by virtue of such
sub-servicing agreements or arrangements or by virtue of indemnification from
any Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Master Servicer or
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans. Each of the Master Servicer and the Special Servicer shall be
entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Master Servicer or Special Servicer, as applicable, by
such sub-servicer, and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification, but no such agreement for indemnification
shall be deemed to limit or modify this Agreement.
SECTION 3.03 Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer or the Special Servicer, as applicable, shall use
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and shall
follow the Servicing Standard with respect to such collection procedures. The
Master Servicer shall use its reasonable efforts to collect income statements,
rent rolls and other reporting information from Borrowers as required by the
related Loan Documents and the terms hereof. Consistent with the foregoing, the
Master Servicer or Special Servicer, as applicable, may in its discretion waive
any late payment charge in connection with any delinquent Monthly Payment with
respect to any Mortgage Loan. In addition, the Master Servicer shall be entitled
to take such actions with respect to the collection of payments on the Mortgage
Loans as are permitted or required under Section 3.26 hereof.
(b) In the event that the Master Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Master Servicer or Special Servicer, as
applicable, will promptly notify the Trustee. Notwithstanding any other
provision of this Agreement or any Loan Document, so long as the related
Mortgage Loan is part of the Trust Fund, neither the Master Servicer nor the
Special Servicer shall enforce collection of any interest on any ARD Loan with
respect to the applicable Revised Rate at a rate in excess of two percent
(2.00%) per annum in excess of the applicable Initial Rate.
SECTION 3.04 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Master Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments, ground rents and
other similar items that are or may become a lien on the related Mortgaged
Property and the status of insurance premiums payable with respect thereto. From
time to time, the Master Servicer shall (i) obtain all bills for the payment of
such items (including renewal premiums), and (ii) effect payment of all such
bills with respect to such Mortgaged Properties prior to the applicable penalty
or termination date, in each case employing for such purpose Escrow Payments as
allowed under the terms of the related Mortgage Loan. If a Borrower fails to
make any such payment on a timely basis or collections from the Borrower are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer shall advance the amount of any shortfall as a
Property Advance unless the Master Servicer determines in its good faith
business judgment that such Advance would be a Nonrecoverable Advance. In the
event that any such advance is made by the servicer under the Series 1998-GL II
Pooling Agreement, the Master Servicer shall, in accordance with the terms of
the Co-Lender Agreement, make a Property Advance equal to the amount required
under the terms of the Co-Lender Agreement. The Master Servicer shall be
entitled to reimbursement of Advances, with interest thereon at the Advance
Rate, that it makes pursuant to the preceding sentence from amounts received on
or in respect of the related Mortgage Loan respecting which such Advance was
made or if such Advance has become a Nonrecoverable Advance, to the extent
permitted by Section 3.06 of this Agreement. No costs incurred by the Master
Servicer in effecting the payment of taxes and assessments on the Mortgaged
Properties shall, for the purpose of calculating distributions to
Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit.
(b) The Master Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Payments shall be deposited within two Business Days after
receipt. The Master Servicer shall also deposit into each applicable Escrow
Account any amounts representing losses on Permitted Investments to the extent
required by Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds
which are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Escrow Accounts shall be
Eligible Accounts (except to the extent the related Mortgage Loan requires or
permits it to be held in an account that is not an Eligible Account) and shall
be entitled, "GMAC Commercial Mortgage Corporation, as Master Servicer, in trust
for LaSalle National Bank, as Trustee in trust for Holders of GS Mortgage
Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and Various Borrowers." Withdrawals from an Escrow Account may be made
by the Master Servicer only:
(i) to effect timely payments of items constituting Escrow Payments for
the related Loan Documents and in accordance with the terms of the related
Mortgage Loan;
(ii) to transfer funds to the Collection Account to reimburse the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, for any Advance (with interest thereon at the Advance Rate)
relating to Escrow Payments, but only from amounts received with respect to
the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement;
(v) to pay from time to time to the related Borrower (a) any interest
or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Borrower under law or by
the terms of the Mortgage Loan, or otherwise to the Master Servicer and (b)
any other funds required to be released to the related Borrowers pursuant
to the related Loan Documents; and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05 Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution Account; Excess Interest
Distribution Account; Payment Reserve Account.
(a) The Master Servicer shall establish and maintain the Collection Account
in the Trustee's name, for the benefit of the Certificateholders and the Trustee
as the Holder of the Lower-Tier Regular Interests. The Collection Account shall
be established and maintained as an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Collection Account within two Business
Days following receipt the following payments and collections received or made
by it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans,
including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments;
(iii) all Yield Maintenance Charges;
(iv) any amounts required to be deposited pursuant to Section 3.07(b)
in connection with net losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net Liquidation
Proceeds;
(vi) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be retained by
the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement to
be deposited into the Collection Account by the Master Servicer or Special
Servicer, including, without limitation, proceeds of any repurchase of a
Mortgage Loan pursuant to Sections 2.03(c) hereof.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, to the extent provided herein, payments in the nature of late
payment charges (subject to Section 3.12 hereof), Assumption Fees, loan
modification fees, loan service transaction fees, extension fees, demand fees,
beneficiary statement charges and similar fees need not be deposited in the
Collection Account by the Master Servicer and, to the extent permitted by
applicable law, the Master Servicer shall be entitled to retain any such charges
and fees received with respect to the Mortgage Loans. In the event that the
Master Servicer deposits in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall give written notice to the Trustee of the location and account
number of the Collection Account and shall notify the Trustee in writing of any
subsequent change thereof.
(b) The Trustee shall establish and maintain (i) the Lower-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests; and (ii) the Upper-Tier Distribution Account in the name of the
Trustee, in trust for the benefit of the Certificateholders. The Lower-Tier
Distribution Account and Upper-Tier Distribution Account shall be established
and maintained as Eligible Accounts or as sub-accounts of a single Eligible
Account. With respect to each Distribution Date, on or before such date the
Trustee shall make the withdrawals from the Lower-Tier Distribution Account, as
set forth in Section 4.01 hereof, shall make the deposits into the Upper-Tier
Distribution Account, as set forth in Section 4.01 hereof, and shall cause the
amount of Available Funds (including P&I Advances) and Yield Maintenance Charges
to be distributed in respect of the Certificates, pursuant to Section 4.01
hereof on such date.
(c) The Trustee shall establish and maintain the Class Q Distribution
Account in the name of the Trustee in trust for the benefit of the Holders of
the Class Q Certificates. The Class Q Distribution Account shall be established
and maintained as an Eligible Account. On or before the Master Servicer
Remittance Date related to each Distribution Date, the Master Servicer shall
remit to the Trustee for deposit in the Class Q Distribution Account an amount
equal to the sum of (i) (A) the amount of the aggregate Default Interest
received during the preceding Collection Period, minus (B) any portions thereof
applied to pay the Advance Interest Amount in respect of Advances (such amount,
if any, the "Net Default Interest" for such Distribution Date) plus amounts in
respect of the AIMCO Multifamily Pool Conditional Debt received during the
preceding Collection Period. Notwithstanding any other provision of this
Agreement, no amounts shall be remitted for deposit in the Class Q Distribution
Account with respect to collections on any Individual AIMCO Loan until the
related Individual AIMCO Loan Agreed Valuation Amount has been paid in full in
accordance with the terms of such Individual AIMCO Loan, and the Holders of the
Class Q Certificates shall have no interest in any amounts collected on any
Individual AIMCO Loan prior to such payment in full.
(d) Prior to the Master Servicer Remittance Date relating to the Collection
Period, if any, in which Excess Interest is received, the Trustee shall
establish and maintain the Excess Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Certificateholders as set forth in
Section 2.06(b). The Excess Interest Distribution Account shall be established
and maintained as an Eligible Account. On or before the Master Servicer
Remittance Date related to the applicable Distribution Date, the Master Servicer
shall remit to the Trustee for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the applicable
Collection Period.
Following the distribution of Excess Interest to Certificateholders on the
first Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Excess Interest, the Trustee
shall terminate the Excess Interest Distribution Account.
(e) The Trustee shall establish and maintain the Payment Reserve Account in
the name of the Trustee in trust for the benefit of the Holders of the
Certificates. Funds in the Payment Reserve Account shall be invested in
Permitted Investments.
If at any time prior to July 1, 2008 (i) no unscheduled payment of
principal on any Mortgage Loan has been received (other than a Principal
Prepayment in full on any ARD Loan on its Anticipated Repayment Date), (ii) no
delinquency of 60 days or more has occurred with respect to any Mortgage Loan,
and (iii) no Mortgage Loan has failed to be paid in full on its Maturity Date
(or, with respect to any ARD Loan, on its Anticipated Repayment Date) or within
30 days thereafter, commencing on the Master Servicer Remittance Date in July,
2008 the Master Servicer shall remit to the Trustee for deposit in the Payment
Reserve Account the principal portion of all Monthly Payments and Balloon
Payments due on Mortgage Loans in Group 1 (including the Americold Pool Loan) in
the months of July, August and September, 2008, and all Principal Prepayments in
full on ARD Loans in Group 1 whose Anticipated Repayment Dates occur in such
period.
On each Master Servicer Remittance Date occurring after August 1, 2008, but
on or prior to the Payment Reserve Release Date, the Trustee shall withdraw from
the Payment Reserve Account an amount equal to the lesser of (x) the total
reinvestment income on funds in such account and (y) the Reserve Account
Reinvestment Requirement and deposit such amount in the Lower-Tier Distribution
Account. Any reinvestment income on funds in the Payment Reserve Account in
excess of such amount shall be remitted by the Trustee to the Goldman Group or
its designee on such Distribution Date by wire transfer to an account designated
by the Goldman Group or such designee as compensation for directing the
investment of funds in the Payment Reserve Account. In addition, on the Master
Servicer Remittance Date immediately preceding the Payment Reserve Release Date,
the Trustee shall withdraw from the Payment Reserve Account all remaining
amounts held therein representing principal payments on the Group 1 Mortgage
Loans deposited therein, together with reinvestment income on funds held in the
Payment Reserve Account in an amount equal to the lesser of (v) the total of
such reinvestment income or (w) the Reserve Account Reinvestment Requirement and
deposit such amounts in the Lower-Tier Distribution Account and terminate the
Payment Reserve Account. Any reinvestment income in excess of the Reserve
Account Reinvestment Requirement shall be remitted to Goldman Group or its
designee on such Distribution Date by wire transfer to an account designated by
Goldman Group or such designee as compensation for directing the investment of
funds in the Payment Reserve Account.
SECTION 3.06 Permitted Withdrawals from the Collection Account.
The Master Servicer may make withdrawals from the Collection Account only
as described below (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution
Account, the Class Q Distribution Account, the Interest Reserve Account,
the Excess Interest Distribution Account, the Payment Reserve Account, the
amounts required to be deposited in the Lower-Tier Distribution Account,
the Class Q Distribution Account, the Interest Reserve Account, the Excess
Interest Distribution Account and the Payment Reserve Account, pursuant to
Sections 4.01(a)(i), 3.05(c), 3.25, 3.05(d) and 3.05(e), respectively;
(ii) to pay or reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent for Advances and any related Advance Interest
Amounts (provided that the Trustee and the Fiscal Agent shall have priority
with respect to such payment or reimbursement of any such Advances and any
related Advance Interest Amounts), the Master Servicer's right to reimburse
any such Person pursuant to this clause (ii) being limited to (x) any
collections on or in respect of the particular Mortgage Loan or REO
Property respecting which such Advance was made, or (y) any other amounts
in the Collection Account in the event that such Advances have been deemed
to be Nonrecoverable Advances or are not recovered from such recoveries in
respect of the related Mortgage Loan or REO Property after a Final Recovery
Determination;
(iii) [Reserved]
(iv) to the extent not otherwise required to be applied against
Prepayment Interest Shortfalls, to pay on or before each Master Servicer
Remittance Date to the Master Servicer and the Special Servicer, as
applicable, as compensation, the aggregate unpaid Servicing Fee and Special
Servicing Compensation (if any), respectively, in respect of the
immediately preceding Interest Accrual Period, to be paid, in the case of
the Servicing Fee, from interest received on the related Mortgage Loan and
to pay from time to time to the Master Servicer in accordance with Section
3.07(b) any interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay on or before each Distribution Date to the Seller, the
applicable Responsible Party or any other applicable Person as the case may
be, with respect to each Mortgage Loan or REO Property that has previously
been purchased or repurchased by it pursuant to Section 2.03(c), Section
3.18 or Section 9.01, all amounts received thereon during the related
Collection Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other clause
of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee,
the Special Servicer, the Seller or the Fiscal Agent, as applicable, for
unpaid Servicing Fees, Special Servicing Compensation and other unpaid
items incurred by such Person pursuant to the second sentence of Section
3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section
3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section 8.05(d) or
Section 10.07, or any other provision of this Agreement pursuant to which
such Person is entitled to reimbursement or payment from the Trust Fund, in
each case only to the extent expressly reimbursable under such Section, it
being acknowledged that this clause (vi) shall not be deemed to modify the
substance of any such Section, including the provisions of such Section
that set forth the extent to which one of the foregoing Persons is or is
not entitled to payment or reimbursement;
(vii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by the
Trustee to be necessary to pay any applicable federal, state or local taxes
imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the
circumstances and to the extent described in Section 4.05;
(viii) to withdraw any amount deposited into the Collection Account
that was not required to be deposited therein;
(ix) to remit any GSMC Retained Interest Amount; and
(x) to clear and terminate the Collection Account pursuant to Section
9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to subclauses (ii)-(vi) above.
The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer
shall in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Fees (including investment income), or Trustee Fees,
Special Servicing Compensation, Advances, Advance Interest Amounts and their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Master Servicer or the
Special Servicer, as applicable).
The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution
Account, the Class Q Distribution Account, the Payment Reserve Account, the
Interest Reserve Account and the Excess Interest Distribution Account any and
all amounts received by the Trustee in accordance with Section 3.06(i). 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 clause (i) is
required to be delivered hereunder, the Master Servicer shall not have delivered
to the Trustee for deposit in the Lower-Tier Distribution Account, the Class Q
Distribution Account, the Payment Reserve Account, the Interest Reserve Account
and the Excess Interest Distribution Account the amounts required to be
deposited therein pursuant to the provisions of this Agreement (including,
without limitation Section 3.06(i)), then the Trustee shall, to the extent that
a Responsible Officer of the Trustee has such knowledge, provide notice of such
failure to the Master Servicer by facsimile transmission sent to telecopy No.
(312) 845-8617 (or such alternative number provided by the Master Servicer to
the Trustee in writing) and by telephone at telephone No. (312) 845-8585 (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; provided, however, that the Master Servicer will pay the
Trustee interest on such late payment at the prime rate until such late payment
is received by the Trustee.
SECTION 3.07 Investment of Funds in the Collection Account, the REO
Account, the Interest Reserve Account, the Borrower Accounts, and Other
Accounts.
(a) The Master Servicer (or with respect to any REO Account, the Special
Servicer) may direct any depository institution maintaining the Collection
Account and any Borrower Accounts (subject to the second succeeding sentence)
and any REO Account (each, for purposes of this Section 3.07, an "Investment
Account"), to invest the funds in such Investment Account in one or more
Permitted Investments that bear interest or are sold at a discount, and that
mature, unless payable on demand, no later than the Business Day preceding the
date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement. Any direction by the Master Servicer or the
Special Servicer, to invest funds on deposit in an Investment Account shall be
in writing and shall certify that the requested investment is a Permitted
Investment which matures at or prior to the time required hereby or is payable
on demand. In the case of any Escrow Account, Lock-Box Account, or Reserve
Account (the "Borrower Accounts"), the Master Servicer shall act upon the
written request of the related Borrower or Manager to the extent the Master
Servicer is required to do so under the terms of the respective Mortgage Loan or
related documents, provided that in the absence of appropriate written
instructions from the related Borrower or Manager meeting the requirements of
this Section 3.07, the Master Servicer shall have no obligation to, but will be
entitled to, direct the investment of funds in such accounts in Permitted
Investments. 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) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Master Servicer, or
the Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Master Servicer),
together with any document of transfer, if any, necessary to transfer title to
such investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Master Servicer or the Special Servicer, any Borrower or Manager or any losses
resulting therefrom, whether from Permitted Investments or otherwise. The Master
Servicer shall have no responsibility or liability with respect to the
investment direction of any Borrower or Manager or any losses resulting
therefrom, whether from Permitted Investments or otherwise. 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 (or the Special Servicer),
shall: (x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn on such
date; and (y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer (or the Special Servicer) that such
Permitted Investment would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Master Servicer, except with
respect to the investment of funds deposited in (i) any Borrower Account, which
shall be for the benefit of the related Borrower to the extent required under
the Mortgage Loan or applicable law or (ii) any REO Account, which shall be for
the benefit of the Special Servicer, and, if held in the Collection Account or
REO Account shall be subject to withdrawal by the Master Servicer or the Special
Servicer, as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable. The Master Servicer (or with respect to any REO Account, the Special
Servicer) shall deposit from its own funds into any applicable Investment
Account, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss (except with respect to
losses incurred as a result of the related Borrower or Manager exercising its
power under the related Loan Documents to direct such investment in such
Borrower Account); provided, however, that the Master Servicer or Special
Servicer, as applicable, may reduce the amount of such payment to the extent it
forgoes any investment income in such Investment Account otherwise payable to
it. The Master Servicer shall also deposit from its own funds in any Borrower
Account the amount of any loss incurred in respect of Permitted Investments,
except to the extent that amounts are invested for the benefit of the Borrower
under the terms of the Mortgage Loan or applicable law.
All amounts on deposit in the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account and the Class Q Distribution Account shall be
held uninvested.
(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 upon the request of Holders of Certificates
representing greater than 50% of the Percentage Interests of any Class shall,
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. In the
event the Trustee takes any such action, the Trust Fund shall pay or reimburse
the Trustee for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in connection therewith. In the event
that the Trustee does not take any such action, the Master Servicer may, but is
not obligated to, take such action at its own cost and expense.
SECTION 3.08 Maintenance of Insurance Policies and Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer on behalf of the Trustee, as mortgagee, shall use
reasonable best efforts to cause the related Borrower to maintain, to the extent
required by each Mortgage Loan (other than REO Mortgage Loans), and if the
Borrower does not so maintain, shall itself maintain (subject to the provisions
of this Agreement concerning Nonrecoverable Advances to the extent the Trustee
as mortgagee has an insurable interest and to the extent available at
commercially reasonable rates), (i) fire and hazard insurance (and hurricane
insurance, if applicable) with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the lesser of (a) one hundred
percent (100%) of the then "full replacement cost" of the improvements and
equipment, (excluding foundations, footings and excavation costs), without
deduction for physical depreciation, and (b) the outstanding principal balance
of the related Mortgage Loan or such greater amount as is necessary to prevent
any reduction in such policy by reason of the application of co-insurance
provisions and to prevent the Trustee thereunder from being deemed to be a
co-insurer and provided such policy shall include a "replacement cost" rider,
(ii) insurance providing coverage against 18 months (or such longer period or
with such extended period endorsement as provided in the related Mortgage or
other Loan Document) of rent interruptions and (iii) such other insurance as is
required in the related Mortgage Loan. The Special Servicer shall maintain fire
and hazard insurance with extended coverage on each REO Property (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) in an amount
which is at least equal to one hundred percent (100%) of the then "full
replacement cost" of the improvements and equipment (excluding foundations,
footings and excavation costs), without deduction for physical depreciation. If
the Special Servicer does not maintain the insurance described in the preceding
sentence or the required flood insurance described below, the Master Servicer
shall, as soon as practicable after receipt of notice of such failure, maintain
such insurance, and if the Master Servicer does not maintain such insurance, the
insurance required in the first sentence of this Section 3.08(a) or the required
flood insurance described below (if the related Borrower fails to maintain such
insurance), the Trustee shall, as soon as practicable after receipt of notice of
such failure, maintain such insurance and if the Trustee does not maintain such
insurance, the Fiscal Agent shall do so, provided that, in each such case, such
obligation will be subject to the provisions of this Agreement concerning
Nonrecoverable Advances and to the availability of such insurance at
commercially reasonable rates. The Special Servicer shall maintain, with respect
to each REO Property (i) public liability insurance providing such coverage
against such risks as the Special Servicer determines, consistent with the
related Loan Documents and the Servicing Standard, to be in the best interests
of the Trust Fund, (ii) insurance providing coverage against 18 months (or such
longer period of time as is consistent with the Loan Documents and the Servicing
Standard) of rent interruptions and (iii) such other insurance as was required
pursuant to the terms of the related Mortgage Loan. All insurance for an REO
Property shall be from a Qualified Insurer. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Loan Documents) shall be deposited into the Collection Account
pursuant to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any
cost incurred by the Master Servicer or the Special Servicer in maintaining any
such insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Master Servicer other
than pursuant to the terms of the related Loan Documents and pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property (other than an REO
Property) is located in a federally designated special flood hazard area, the
Master Servicer will use its reasonable best efforts to cause the related
Borrower to maintain, to the extent required by each Mortgage Loan, and if the
related Borrower does not so maintain, shall itself obtain (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) and maintain
flood insurance in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance required by the terms of the
related Mortgage Loan and as is available for the related property under the
national flood insurance program (assuming that the area in which such property
is located is participating in such program). If a Mortgaged Property is related
to a Mortgage Loan pursuant to which earthquake insurance was in place at the
time of origination, is required to be maintained pursuant to the terms of the
Mortgage Loan, the Master Servicer shall use its reasonable best efforts to
cause the related Borrower to maintain, and if the related Borrower does not so
maintain will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances and for so long as such insurance continues
to be available at commercially reasonable rates) and maintain earthquake
insurance in respect thereof, in the amount required by the Mortgage Loan or, if
not specified, in-place at origination. If an REO Property (i) is located in a
federally designated special flood hazard area or (ii) is related to a Mortgage
Loan pursuant to which earthquake insurance was in place at the time of
origination and continues to be available at commercially reasonable rates, the
Special Servicer will obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) and maintain flood insurance and/or
earthquake insurance in respect thereof providing the same coverage as described
in the preceding sentences or, with respect to earthquake insurance, in the
amount required by the Mortgage Loan or, if not specified, in-place at
origination. If at any time during the term of this Agreement a recovery under
an insurance policy in respect of an REO Property is not available but would
have been available if such insurance were maintained thereon in accordance with
the standards applied to Mortgaged Properties described herein, the Special
Servicer shall (subject to the provisions hereof relating to Nonrecoverable
Advances) either (i) immediately deposit into the Collection Account from its
own funds the amount that would have been recovered or (ii) apply to the
restoration and repair of the property from its own funds the amount that would
have been recovered, if such application would be consistent with the Servicing
Standard; provided, however, that the Special Servicer shall not be responsible
for any shortfall in insurance proceeds resulting from an insurer's refusal or
inability to pay a claim. In the case of any insurance otherwise required to be
maintained by the Master Servicer or the Special Servicer, as applicable, that
is not being so maintained because the Master Servicer or the Special Servicer,
as applicable, has determined that it is not available at commercially
reasonable rates, the Master Servicer or the Special Servicer, as applicable,
shall deliver an Officers' Certificate to the Trustee, the Seller and each
Rating Agency which details the steps that were taken in seeking such insurance
and the factors which led to the determination that such insurance was not so
available. Out-of-pocket expenses incurred by the Master Servicer or Special
Servicer in maintaining insurance policies pursuant to this Section 3.08 shall
be paid by the Master Servicer or Special Servicer as a Property Advance and
shall be reimbursable to the Master Servicer or Special Servicer with interest
at the Advance Rate. The Master Servicer (or the Special Servicer, with respect
to the Specially Serviced Mortgage Loans) agrees to prepare and present, on
behalf of itself, the Trustee and the Certificateholders, claims under each
related insurance policy maintained pursuant to this Section 3.08(a) in a timely
fashion in accordance with the terms of such policy and to take such reasonable
steps as are necessary to receive payment or to permit recovery thereunder. All
insurance policies required hereunder shall name the Trustee or the Master
Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as
loss payee, and, unless otherwise required under the related Loan Documents,
shall be issued by Qualified Insurers.
(b) (i) If the Master Servicer or the Special Servicer, as applicable,
obtains and maintains a blanket insurance policy insuring against fire and
hazard losses on all of the Mortgaged Properties (other than REO Properties) as
to which the related Borrower has not maintained insurance required by the
related Mortgage Loan or on all of the REO Properties, as the case may be, it
shall conclusively be deemed to have satisfied its respective obligations
concerning the maintenance of insurance coverage set forth in Section 3.08(a).
Any such blanket insurance policy shall be maintained with a Qualified Insurer.
A blanket insurance 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 a
policy otherwise complying with the provisions of Section 3.08(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 Collection Account
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. In connection with its activities as
Master Servicer or the Special Servicer hereunder, as applicable, the Master
Servicer and the Special Servicer, respectively, agree to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy which it maintains in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or permit recovery thereunder.
(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 and such policy shall be issued by a Qualified Insurer and
provide no less coverage in scope and amount for such Mortgaged Property or REO
Property than the insurance required to be maintained pursuant to Section
3.08(a), then the Master Servicer or Special Servicer shall conclusively be
deemed to have satisfied its respective obligations to maintain insurance
pursuant to Section 3.08(a). 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 3.08(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 Collection Account 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.
(c) The Master Servicer and the Special Servicer shall each maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of FNMA or FHLMC, whichever is greater, with the Trustee named as
certificateholder or loss payee, as applicable thereunder. The Master Servicer
and the Special Servicer each shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as applicable. In
addition, the Master Servicer and the Special Servicer shall each keep in force
during the term of this Agreement a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its obligations to service the Mortgage Loans hereunder in the
form and amount that would meet the servicing requirements of FNMA or FHLMC,
whichever is greater, with the Trustee named as certificateholder or loss payee,
as applicable thereunder. The Master Servicer and the Special Servicer shall
cause each and every sub-servicer for it to maintain, or cause to be maintained
by any agent or contractor servicing any Mortgage Loan on behalf of such
sub-servicer, a fidelity bond and an errors and omissions insurance policy which
satisfy the requirements for the fidelity bond and the errors and omissions
policy to be maintained by the Master Servicer pursuant to this Section 3.08(c).
All fidelity bonds and policies of errors and omissions insurance obtained under
this Section 3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions.
(a) If any Mortgage Loan 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 related Borrower, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related 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 Special Servicer, as applicable, on behalf of the Trust Fund
shall not be required to enforce such due-on-sale clause and in connection
therewith shall not be required to (x) accelerate payments thereon or (y)
withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan if (x) such provision is not exercisable
under applicable law or such exercise is reasonably likely to result in
meritorious legal action by the related Borrower or (y) the Master Servicer or
Special Servicer, as applicable, determines, in accordance with the Servicing
Standard, that granting such consent would be likely to result in a greater
recovery, on a present value basis (discounting at the related Net Mortgage
Rate), than would enforcement of such clause. If the Master Servicer or Special
Servicer, as applicable, determines that granting of such consent would likely
result in a greater recovery, the Master Servicer or Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Master Servicer's or Special Servicer's, as applicable, regular commercial
mortgage origination or servicing standards and criteria (as evidenced in
writing by the Master Servicer or Special Servicer) and the terms of the related
Mortgage and (b) if the Stated Principal Balance of such Mortgage Loan as of the
Cut-Off Date (either alone or when aggregated with all other Mortgage Loans to
Borrowers that are Affiliates, or that are cross-collateralized with such
Mortgage Loan) is at least 5% of the aggregate Stated Principal Balances of all
Mortgage Loans as of the Cut-Off Date, the Master Servicer or Special Servicer
has received written confirmation from each Rating Agency that such assumption
or substitution would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates. In
connection with each such assumption or substitution entered into by the Special
Servicer, the Special Servicer shall give prior notice thereof to the Master
Servicer. The Master Servicer or Special Servicer, as applicable, shall notify
the Trustee that any such assumption or substitution agreement has been
completed by forwarding to the Trustee (with a copy to the Master Servicer, if
applicable,) the original copy of such agreement, which copies shall be added to
the related Mortgage File and shall, for all purposes, be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding any other provision of this Agreement, upon receipt of the
written consent of the Holder of a majority interest in the Controlling Class,
the Master Servicer shall consent to, and execute any documents provided to it
by the Controlling Class with respect to the one time sale of the Mortgaged
Property securing the Mortgage Loan, identified as Loan No. SKY-II on the
Mortgage Loan Schedule, the assumption by the purchaser of such Mortgage Loan.
(b) Subject to Section 3.26, if any Mortgage Loan 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 lien or other
encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of
any such lien or other encumbrance on the related Mortgaged Property,
then the Master Servicer or Special Servicer, as applicable, on behalf of the
Trust Fund, shall not be required to enforce such due-on-encumbrance clause and
in connection therewith will not be required to (i) accelerate the payments on
the related Mortgage Loan or (ii) withhold its consent to such lien or
encumbrance if in either case the Master Servicer or Special Servicer, as
applicable, (x) determines, in accordance with the Servicing Standard, that such
enforcement would not be in the best interests of the Trust Fund and (y)
receives prior written confirmation from each Rating Agency that granting such
consent would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 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 lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Master Servicer nor the Special
Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.27.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance, and to the extent consistent with the terms of
the related Loan Documents:
(i) In the event such Mortgage Loan requires that the Master Servicer
on behalf of the Trustee purchase the required U.S. government obligations,
the Master Servicer shall, at the Borrower's expense (to the extent
consistent with the Loan Documents), purchase such obligations in
accordance with the terms of such Mortgage Loan and hold the same on behalf
of the Trust Fund; provided, that the Master Servicer shall not accept the
amounts paid by the related Borrower to effect defeasance until acceptable
U.S. government obligations have been identified.
(ii) The Master Servicer shall require, to the extent the Loan
Documents grant the mortgagor discretion to so require, the Borrower to
provide an Opinion of Counsel (which shall be an expense of the related
Borrower (to the extent consistent with the Loan Documents)) to the effect
that the Trustee has a first priority security interest in the defeasance
deposit and the U.S. government obligations and the assignment thereof is
valid and enforceable; such opinion, together with any other certificates
or documents to be required in connection with such defeasance shall be in
form and substance acceptable to the Master Servicer.
(iii) To the extent consistent with the related Loan Documents, the
Master Servicer shall obtain a certificate at the related Borrower's
expense from an Independent certified public accountant certifying that the
U.S. government obligations comply with the requirements of the related
Loan Agreement or Mortgage.
(iv) To the extent consistent with the related Loan Documents, prior to
permitting release of any Mortgaged Properties through defeasance, the
Master Servicer shall (at the Borrower's expense) obtain written
confirmation from each Rating Agency that such defeasance would not, in and
of itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates.
(v) If the Mortgage Loan permits the related Borrower or the lender or
its designee to cause an accommodation borrower to assume such defeased
obligations, the Master Servicer shall establish at the Borrower's cost and
expense (and shall use its reasonable best efforts to cause the related
Borrower to consent to such assumption) a special purpose bankruptcy-remote
entity to assume such obligations, the establishment of which will not, as
evidenced in a writing of the Rating Agencies delivered to the Trustee, in
and of itself, result in the downgrade, qualification or withdrawals of the
ratings then assigned to the Certificates.
SECTION 3.10 Realization Upon Defaulted Mortgage Loans.
(a) Within 60 days after the occurrence of an Appraisal Reduction Event,
the Special Servicer shall obtain an Updated Appraisal of the related Mortgaged
Property or REO Property, as the case may be, the costs of which shall be a
Property Advance to be advanced by the Master Servicer; provided, however, that
the Special Servicer shall not be required to obtain an Updated Appraisal of any
Mortgaged Property with respect to which there exists an appraisal which is less
than twelve months old. The Master Servicer or Special Servicer, as applicable,
shall obtain annual letter updates to the Updated Appraisal or new Updated
Appraisals.
(b) In connection with any foreclosure, enforcement of the Loan Documents
or other acquisition, the Special Servicer shall pay the out-of-pocket costs and
expenses in any such proceedings as a Property Advance unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence to the extent permitted by Section 3.06(ii) and Section
3.06(vi).
If the Special Servicer elects to proceed with a non-judicial foreclosure
in accordance with the laws of the state where the Mortgaged Property is
located, the Special Servicer shall not be required to pursue a deficiency
judgment against the related Borrower or any other liable party if the laws of
the state do not permit such a deficiency judgment after a non-judicial
foreclosure or if the Special Servicer determines, in accordance with the
Servicing Standard, that the likely recovery if a deficiency judgment is
obtained will not be sufficient to warrant the cost, time, expense and/or
exposure of pursuing the deficiency judgment and such determination is evidenced
by an Officers' Certificate delivered to the Trustee.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, to a co-trustee or to its nominee (which shall
not include the Master Servicer) or a separate trustee or co-trustee on behalf
of the Trustee as holder of the Lower-Tier Regular Interests and on behalf of
the holders of the Certificates. Notwithstanding any such acquisition of title
and cancellation of the related Mortgage Loan, such Mortgage Loan shall (except
for purposes of Section 9.01) be considered to be a REO Mortgage Loan held in
the Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and shall be reduced only by collections net of expenses. Consistent
with the foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan shall be considered to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note and,
for purposes of determining the Stated Principal Balance thereof, the
related amortization schedule in effect at the time of any such acquisition
of title remain in effect; and
(ii) Net REO Proceeds received in any month shall be applied to amounts
that would have been payable under the related Note in accordance with the
terms of such Note. In the absence of such terms, Net REO Proceeds shall be
deemed to have been received first in payment of the accrued interest (not
including Default Interest or Excess Interest) that remained unpaid on the
date that the related REO Property was acquired by the Trust Fund; second
in respect of the delinquent principal installments that remained unpaid on
such date; and thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and accrued interest on
such Mortgage Loan deemed to be due and payable in accordance with the
terms of such Note and such amortization schedule. If such Net REO Proceeds
exceed the Monthly Payment then payable, the excess shall be treated as a
Principal Prepayment received in respect of such Mortgage Loan.
(c) Notwithstanding any provision to the contrary, the Special Servicer
shall not acquire for the benefit of the Trust Fund any personal property
pursuant to this Section 3.10 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 for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion
of Counsel (which opinion shall be an expense of the Trust Fund) to the
effect that the holding of such personal property by the Trust Fund will
not cause the imposition of a tax on the Lower-Tier REMIC or Upper-Tier
REMIC under the REMIC Provisions or cause the Lower-Tier REMIC or
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(d) Notwithstanding any provision to the contrary in this Agreement,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trust Fund, obtain title to any direct or indirect partnership or membership
interest or other equity interest in any Borrower pledged pursuant to any pledge
agreement, unless the Master Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the Trust Fund) to the
effect that the holding of such partnership interest or other equity interest by
the Trust Fund will not cause the imposition of a tax on the Lower-Tier REMIC or
Upper-Tier REMIC under the REMIC Provisions or cause the Lower-Tier REMIC or
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership or membership
interest in any Borrower pledged pursuant to a pledge agreement and thereby be
the beneficial owner of a Mortgaged Property, and shall not otherwise acquire
possession of, or take any other action with respect to, any Mortgaged Property
if, as a result of any such action, the Trustee, for the Trust Fund or 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 the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an updated environmental
assessment report prepared by an Independent Person who regularly conducts
environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust
Fund to take such actions as are necessary to bring such Mortgaged Property
in compliance therewith; and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal, state
or local law or regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after consultation with an
environmental consultant, it would be in the best economic interest of the
Trust Fund to take such actions with respect to the affected Mortgaged
Property. In the event that the environmental assessment first obtained by
the Special Servicer with respect to a Mortgaged Property indicates that
such Mortgaged Property may not be in compliance with applicable
environmental laws or that Hazardous Materials may be present but does not
definitively establish such fact, the Special Servicer shall cause such
further environmental tests to be conducted by an Independent Person who
regularly conducts such tests as the Special Servicer shall deem prudent to
protect the interests of Certificateholders. Any such tests shall be deemed
part of the environmental assessment obtained by the Special Servicer for
purposes of this Section 3.10.
(f) The environmental assessment contemplated by Section 3.10(e) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Master Servicer shall advance the cost of preparation of such
environmental assessments unless the Master Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance. The Master
Servicer shall be entitled to reimbursement of Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence in the manner set forth in
Section 3.06.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(i) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(e)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer and delivered to the Trustee, and only
if the Trustee does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes directing the Special Servicer not to take such action. None of
the Trustee, the Master Servicer or the Special Servicer shall be obligated to
take any action or not take any action pursuant to this Section 3.10(g) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Master Servicer and the Special Servicer with respect
to such action or inaction. The Special Servicer shall advance the cost of any
such compliance, containment, clean-up or remediation unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence in the manner set forth in Section 3.06.
(h) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(i) The costs of any appraisal or annual letter update obtained pursuant to
this Section 3.10 shall be paid by the Master Servicer as an Advance and shall
be reimbursable from the Collection Account pursuant to Section 3.06.
SECTION 3.11 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Master Servicer shall immediately notify the
Trustee or the Custodian by a certification (which certification 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
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Master Servicer or Special Servicer
and delivery to the Trustee and the Custodian of a Request for Release, the
Trustee shall promptly cause the Custodian to release the Mortgage File (or any
portion thereof) designated in such Request for Release to the Master Servicer
or Special Servicer, as applicable. Upon return of the foregoing to the
Custodian, or in the event of a liquidation or conversion of the Mortgage Loan
into an REO Property, receipt by 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 Collection Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall deliver
a copy of the Request for Release to the Master Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, 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
Borrower on the Mortgage Loan, or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Loan Documents or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement 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 or other security agreement, except for the termination of
such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled, with respect to each Mortgage Loan and each Interest Accrual
Period, to the Servicing Fee, which shall be payable from amounts on deposit in
the Collection Account as set forth in Section 3.06(iv). The Master Servicer's
rights to 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. In addition, the Master Servicer shall be
entitled to receive, as additional servicing compensation, to the extent
permitted by applicable law and the related Mortgage Loans, any late payment
charges (except to the extent used to offset Advance Interest), Assumption Fees,
loan modification fees, extension fees, loan service transaction fees, demand
fees, beneficiary statement charges, aggregate Prepayment Interest Excess (but
only to the extent such amount exceeds the aggregate Prepayment Interest
Shortfall for the related Prepayment Period), or similar items (but not
including any Net Default Interest or Yield Maintenance Charges), in each case
to the extent received and not required to be deposited or retained in the
Collection Account pursuant to Section 3.05; provided, however, that the Master
Servicer shall not be entitled to apply or retain any amounts as additional
compensation, including any late payment charges, with respect to a specific
Mortgage Loan with respect to which a default or event of default thereunder has
occurred and is continuing unless and until such default or event of default has
been cured and all delinquent amounts (including any Default Interest) due with
respect to such Mortgage Loan have been paid. The Master Servicer shall also be
entitled pursuant to, and to the extent provided in, Sections 3.06(iv), 3.06(d)
and 3.07(b) to withdraw from the Collection Account and to receive from any
Borrower Accounts (to the extent not payable to the related Borrower under the
Mortgage Loan or applicable law) any interest or other income earned on deposits
therein.
Notwithstanding the foregoing, the aggregate Servicing Fee due to the
Master Servicer with respect to any Distribution Date (but in no event the
Trustee Fee payable on such Distribution Date out of the Servicing Fee) shall be
reduced by the aggregate amount of any excess of Prepayment Interest Shortfalls
over Prepayment Interest Excesses for the related Prepayment Period, up to an
amount equal to 0.04% per annum of the aggregate Stated Principal Balance of the
Mortgage Loans for the related Interest Accrual Period.
As compensation for its activities hereunder, on each Distribution Date the
Trustee shall be entitled with respect to each Mortgage Loan to the Trustee Fee,
which shall be payable by the Master Servicer out of the aggregate Servicing
Fee. The Trustee shall pay the routine fees and expenses of the Fiscal Agent,
the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder,
including all fees of any sub-servicers retained by it. In addition, the Master
Servicer shall pay the annual monitoring and surveillance fees for S&P. Except
as otherwise provided herein, the Trustee shall pay all expenses incurred by it,
the Fiscal Agent, the Certificate Registrar, the Paying Agent, the Custodian and
the Authenticating Agent in connection with their activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Fee, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.06(iv). The Special Servicer's
rights to the Special Servicing 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. In addition, the Special
Servicer shall be entitled to receive, as additional servicing compensation, (i)
to the extent permitted by applicable law and the related Specially Serviced
Mortgaged Loans, any Assumption Fees, loan modification or forbearance fees,
late payment charges (except to the extent used to offset Advance Interest),
extension fees, loan service transaction fees or similar items, and (ii) any
interest or other income earned on deposits in the REO Accounts.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) In addition to the Special Servicing Fees provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the following fees and compensation:
(i) the Rehabilitation Fee; and
(ii) the Liquidation Fee payable out of the Liquidation Proceeds prior
to the deposit of the Net Liquidation Proceeds in the Collection Account.
However, no Liquidation Fee will be payable in connection with, or out of,
Liquidation Proceeds resulting from the purchase of any Specially Serviced
Mortgage Loan or REO Property (i) by any Responsible Party, or (ii) by the
Master Servicer, the Seller or the Certificateholders pursuant to Section
2.03 or Section 9.01.
(d) The Master Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vi).
(e) No provision of this Agreement or of the Certificates shall require the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Master Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund
hereunder, then the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall not be required to take any action in response to such
request or inquiry unless the Borrower or such Certificateholder or such other
Person, as applicable, makes arrangements for the payment of the Master
Servicer's, the Special Servicer's or Trustee's expenses associated with such
counsel (including, without limitation, posting an advance payment for such
expenses) satisfactory to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in its sole discretion. Unless such arrangements
have been made, the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall have no liability to any Person for the failure to respond to
such request or inquiry.
(f) On each Master Servicer Remittance Date, the Master Servicer shall pay
from the related Servicing Fee, each Broker Strip Amount by wire transfer in
immediately available funds to an account designated by the Strip Holder.
SECTION 3.13 Reports to the Trustee; Collection Account Statements.
(a) [Reserved]
(b) Not later than 30 days after each Distribution Date, the Master
Servicer shall forward to the Trustee a statement prepared by the Master
Servicer setting forth the status of the Collection Account as of the close of
business on the last Business Day of the related Prepayment Period and showing
the aggregate amount of deposits into and withdrawals from the Collection
Account of each category of deposit specified in Section 3.05 and each category
of withdrawal specified in Section 3.06 for the related Prepayment Period. The
Trustee and its agents and attorneys may at any time during normal business
hours, upon reasonable notice, inspect and copy the books, records and accounts
of the Master Servicer solely relating to the Mortgage Loans and the performance
of its duties hereunder.
(c) On the Master Servicer Remittance Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Due Date: (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical Loss Estimate Report; (iv) an Historical Loan Modification Report;
and (v) an REO Status Report. Not later than 4:00 PM New York City time on the
third Business Day prior to the Distribution Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee the CSSA Data Files. Such
reports shall be presented in writing and on a computer readable medium
reasonably acceptable to the Trustee. The information that pertains to Specially
Serviced Mortgage Loans and REO Properties reflected in such reports shall be
based solely upon the reports delivered by the Special Servicer to the Master
Servicer one Business Day after the related Determination Date in the form
required by Section 3.13(f) or shall be provided by means of such reports so
delivered by the Special Servicer to the Master Servicer in the form so
required. In the absence of manifest error, the Master Servicer shall be
entitled to conclusively rely upon, without investigation or inquiry, the
information and reports delivered to it by the Special Servicer, and, absent
manifest error, the Trustee shall be entitled to conclusively rely upon the
Master Servicer's reports and the Special Servicer's reports without any duty or
obligation to recompute, verify or recalculate any of the amounts and other
information stated therein. Any of such reports may include any disclaimers the
Master Servicer deems appropriate.
(d) The Master Servicer shall deliver or cause to be delivered to the
Trustee upon request the following materials, in each case to the extent that
such materials or the information on which they are based have been received by
the Master Servicer:
(i) At least annually by June 30th, with respect to each Mortgage Loan
and REO Mortgage Loan (to the extent prepared by and received from the
Special Servicer in the case of any Specially Serviced Mortgage Loan or REO
Mortgage Loan), an Operating Statement Analysis for the related Mortgaged
Property or REO Property as of the end of the preceding calendar year,
together with copies of the operating statements and rent rolls (but only
to the extent the related Borrower is required by the Mortgage to deliver,
or otherwise agrees to provide such information and, with respect to
operating statements and rent rolls for Specially Serviced Mortgage Loans
and REO Properties, only to the extent requested by the Special Servicer)
for the related Mortgaged Property or REO Property as of the end of the
preceding fiscal year. The Master Servicer shall use its reasonable efforts
to obtain said annual operating statements and rent rolls with respect to
each of the Mortgage Loans other than Specially Serviced Mortgage Loans or
REO Mortgage Loans, to the extent such action is consistent with applicable
law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Master Servicer (or twenty
days after receipt by the Master Servicer from the Special Servicer in the
case of a Specially Serviced Mortgage Loan or REO Property) of any annual
operating statements with respect to any Mortgaged Property or REO Property
(to the extent prepared by and received from the Special Servicer in the
case of any Specially Serviced Mortgage Loan or REO Property), an NOI
Adjustment Worksheet for such Mortgaged Property (with the annual operating
statements attached thereto as an exhibit).
The Master Servicer shall maintain one Operating Statement Analysis report
for each Mortgaged Property and REO Property (to the extent prepared by and
received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Mortgage
Loan). The Operating Statement Analysis report for each Mortgaged Property
(other than any such Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Mortgage Loan) is to be updated by the Master
Servicer and such updated report delivered to the Trustee on the Master Servicer
Remittance Date which is no earlier than thirty days after receipt by the Master
Servicer of updated operating statements for such Mortgaged Property. The Master
Servicer will use the "normalized" column from the NOI Adjustment Worksheet to
update the Operating Statement Analysis report and will use any operating
statements received with respect to any Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) to update the Operating Statement Analysis report for
such Mortgaged Property, such updates to be completed and copies thereof sent to
the Trustee within thirty days after receipt of the necessary information.
The Special Servicer shall deliver to the Master Servicer the information
required pursuant to this Section 3.13(d) with respect to Specially Serviced
Mortgage Loans and REO Mortgage Loans on or before June 10th of each year,
commencing on June 10, 1999, and within ten days after its receipt of any
operating statement for any related Mortgaged Property or REO Property.
(e) On each Master Servicer Remittance Date, the Master Servicer shall
prepare and deliver to the Trustee and the Special Servicer, a Watch List of all
Mortgage Loans that the Master Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans. For this purpose, Mortgage Loans
that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a current debt service
coverage ratio that is 80% or less of the debt service coverage ratio as of the
Cut-Off Date or having a current debt service coverage ratio that is less than
1.00x, (ii) Mortgage Loans as to which any required inspection of the related
Mortgaged Property conducted by the Master Servicer or Special Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property, (iii) Mortgage Loans which have come to the Master
Servicer's attention in the performance of its duties under this Agreement
(without any expansion of such duties by reason hereof) that (A) any tenant
occupying 25% or more of the space in the related Mortgaged Property has vacated
(without being replaced by a comparable tenant and lease) or been the subject of
bankruptcy or similar proceedings or (B) relate to a borrower or an affiliate
that is the subject of a bankruptcy or similar proceeding, (iv) Mortgage Loans
that are at least one full Collection Period delinquent in payment, and (v)
Mortgage Loans that are within 60 days of maturity. Any such Watch List may
include any disclaimers the Master Servicer deems appropriate.
The Special Servicer shall report to the Master Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Master Servicer and the Special Servicer shall provide to each other and to
the Trustee written notice of any event that comes to their knowledge with
respect to a Mortgage Loan or REO Property that the Master Servicer or the
Special Servicer, respectively, determines, in accordance with Servicing
Standards, would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(f) On the Business Day after each Determination Date, the Special Servicer
shall deliver, or cause to be delivered, to the Master Servicer and, upon the
request of any of the Trustee, the Seller or any other Rating Agency, to such
requesting party, the following reports with respect to the Specially Serviced
Mortgage Loans (and, if applicable, the related REO Properties), providing the
required information as of the Due Date: (i) a Delinquent Loan Status Report;
(ii) an Historical Loss Estimate Report; (iii) an Historical Loan Modification
Report; (iv) an REO Status Report; (v) Comparative Financial Status Reports with
respect to all Specially Serviced Mortgage Loans; and (vi) the CSSA Data Files.
Such reports shall be presented in writing and on a computer readable magnetic
medium.
(g) Subject to Section 8.01(b) hereof, the Trustee shall be entitled to
rely conclusively on and shall not be responsible for the content or accuracy of
any information provided to it by the Master Servicer or the Special Servicer
pursuant to this Agreement.
SECTION 3.14 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, with a copy to the Rating Agencies and the Seller, on or before April
30th of each year, beginning in 1999, 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, (iii) that it has maintained an effective internal control system over
the servicing of mortgage loans including the Mortgage Loans, and (iv) the
Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding qualification, or challenging the status, of the Trust Fund as
a REMIC from the Internal Revenue Service or any other governmental agency or
body or, if it has received any such notice, specifying the details thereof. A
copy of such Officer's Certificate may be obtained by Certificateholders upon
written request to the Trustee pursuant to Section 8.12 hereof.
SECTION 3.15 Annual Independent Public Accountants' Servicing Report.
On or before April 30th of each year, beginning in 1999, the Master
Servicer at its expense shall cause a firm of nationally recognized 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 Seller 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
accounts 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.
SECTION 3.16 Access to Certain Documentation.
The Master Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer or Special Servicer. Nothing in this Section 3.16 shall detract from
the obligation of the Master Servicer and Special Servicer to observe any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Master Servicer and Special Servicer to
provide access as provided in this Section 3.16 as a result of such obligation
shall not constitute a breach of this Section 3.16.
SECTION 3.17 Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Master Servicer), or a separate trustee or co-trustee, on behalf of
the Trust Fund. The Special Servicer, on behalf of the Trust Fund, shall dispose
of any REO Property prior to the close of the third calendar year beginning
after the Trust Fund acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the
Lower-Tier REMIC has applied for an extension of such period pursuant to
Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special
Servicer shall sell such REO Property within the applicable extension period or
(ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and Trustee, to the effect that the holding by the Trust Fund of such
REO Property for an additional specified period will not cause such REO Property
to fail 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) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund, shall dispose of any REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such REO Property is required to be disposed
of pursuant to the provisions of the immediately preceding sentence in a manner
provided under Section 3.18 hereof. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail 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)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement (and, with
respect to the Americold Pool Loan, the Co-Lender Agreement), to do any and all
things in connection with any REO Property as are consistent with the Servicing
Standard and the terms of this Agreement, all on such terms and for such period
as the Special Servicer deems to be in the best interests of Certificateholders,
and, in connection therewith, the Special Servicer shall only agree to the
payment of management fees that are consistent with general market standards or
to terms that are more favorable. Consistent with the foregoing, the Special
Servicer shall cause or permit to be earned with respect to such REO Property
any "net income from foreclosure property," within the meaning of Section
860G(c) of the Code, which is subject to tax under the REMIC Provisions only if
it has determined, and has so advised the Trustee in writing, that the earning
of such income on a net after-tax basis could reasonably be expected to result
in a greater recovery on behalf of Certificateholders than an alternative method
of operation or rental of such REO Property that would not be subject to such a
tax. The Special Servicer shall segregate and hold all revenues received by it
with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "GMAC Commercial Mortgage Corporation,
as Special Servicer, in trust for LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1 II, REO Account." The Special Servicer
shall be entitled to withdraw for its account any interest or investment income
earned on funds deposited in an REO Account to the extent provided in Section
3.07(b). The Special Servicer shall deposit or cause to be deposited in the REO
Account within one Business Day after receipt all revenues received by it with
respect to any REO Property (other than Liquidation Proceeds, which shall be
remitted pursuant to Section 3.18(e) to the Collection Account), and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property and for other Property Protection Expenses with
respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper-Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance with Section
4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above and the Special Servicer has provided
written notice of such shortfall to the Master Servicer at least five Business
Days prior to the date that such amounts are due, the Master Servicer shall
advance the amount of such shortfall unless the Master Servicer determines, in
its good faith judgment, that such Advance would be a Nonrecoverable Advance. If
the Master Servicer does not make any such Advance in violation of the
immediately preceding sentence, the Trustee shall make such Advance; and if the
Trustee fails to make any such Advance, the Fiscal Agent shall make such
Advance, unless in either case, the Trustee or the Fiscal Agent determines that
such Advance would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Master
Servicer that an Advance, if made, would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not a proposed Advance
would be a Nonrecoverable Advance, shall be subject to the standards applicable
to the Master Servicer hereunder. The Master Servicer, the Trustee or the Fiscal
Agent, as applicable, shall be entitled to reimbursement of such Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence, to the
extent set forth in Section 3.06. The Special Servicer shall withdraw from each
REO Account and remit to the Master Servicer for deposit into the Collection
Account on a monthly basis prior to the related Master Servicer Remittance Date
the Net REO Proceeds received or collected from each REO Property, except that
in determining the amount of such Net REO Proceeds, the Special Servicer may
retain in each REO Account reasonable reserves for repairs, replacements and
necessary capital improvements and other related expenses. Notwithstanding the
foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease,
if the New Lease by its terms will give rise to any income that does not
constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease,
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other
than the repair or maintenance thereof or the completion of a building or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the
meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of acquisition by the
Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail 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) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent
Contractor, the fees and expenses of which shall be an expense of the Trust Fund
and payable out of REO Proceeds, for the operation and management of any REO
Property, within 90 days of the Trust Fund's acquisition thereof (unless the
Special Servicer shall have provided the Trustee with an Opinion of Counsel that
the operation and management of any REO Property other than through an
Independent Contractor shall not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund), provided that:
(i) the terms and conditions of any such contract shall be reasonable
and customary for the area and type of property and shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related revenues (net
of such costs and expenses) to the Special Servicer as soon as practicable,
but in no event later than thirty days following the receipt thereof by
such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 to the Trust Fund or the Trustee on behalf of the
Certificateholders with respect to the operation and management of any such
REO Property; and
(iv) 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.
(c) When and as necessary, the Special Servicer shall send to the Trustee a
statement prepared by the Special Servicer setting forth the amount of net
income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18 Sale of Specially Serviced Mortgage Loans and REO Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with Section
3.10, the Special Servicer shall deliver to the Trustee an Officers' Certificate
to the effect that, pursuant to Section 3.10, the Special Servicer has
determined to sell such Specially Serviced Mortgage Loan or REO Property in
accordance with this Section 3.18. The Special Servicer may then offer to sell
to any Person any Specially Serviced Mortgage Loan which is in default or for
which default is reasonably foreseeable or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of such REO Property
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officers' Certificate and give the Trustee not less than five
Business Days' prior written notice of its intention to sell any Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept the highest offer received from any Person for any Specially Serviced
Mortgage Loan or any REO Property in an amount at least equal to the Repurchase
Price therefor or, at its option, if it has received no offer (of at least three
offers) at least equal to the Repurchase Price therefor, purchase the Specially
Serviced Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or if such offer is determined to be a fair price by the Trustee in
accordance with Section 3.18(b), if the highest offeror is an Interested Person;
provided, that the Trustee shall be entitled to engage, at the expense of the
Trust Fund, an Independent appraiser to determine whether the highest offer is a
fair price and, further provided, that if the highest offeror is an Interested
Person such offer shall not be accepted if it is less than the Repurchase Price,
without the prior written approval of the Trustee, who may conclusively rely on
the determination of an agent reasonably selected as to the fairness of such
offer. Such agent shall be hired at the expense of the Trust Fund.
Notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may make an offer or purchase any
Specially Serviced Mortgage Loan or any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, 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),
provided that the offeror is not the Special Servicer or an Affiliate of the
Special Servicer.
In the event that the Special Servicer determines with respect to any REO
Property that the offers being made with respect thereto are not in the best
interests of the Certificateholders and that the end of the disposition period
referred to in Section 3.17(a) with respect to such REO Property is approaching,
the Special Servicer shall seek an extension of such period in the manner
described in Section 3.17(a); provided, however, that the Special Servicer shall
use its best efforts, consistent with the Servicing Standard, to sell each
Specially Serviced Mortgage Loan and any REO Property prior to the Rated Final
Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser or other expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a fair
price for any Specially Serviced Mortgage Loan or any REO Property, the Special
Servicer (if the highest offeror is not an Interested Person) or the Trustee
shall take into account, and any appraiser or other expert in real estate
matters shall be instructed to take into account, as applicable, among other
factors, any Updated Appraisal previously obtained, the period and amount of any
delinquency on the affected Specially Serviced Mortgage Loan, the physical
(including environmental) condition of the related Mortgaged Property or such
REO Property, the state of the local economy and the Trust Fund's obligation to
dispose of any REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, 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 Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Seller, the Master Servicer, the Special Servicer
or the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as the
only recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Master
Servicer, the Seller, the Fiscal Agent and the Trustee pursuant to the terms of
this Agreement, no such Person who so performed shall have any liability to the
Trust Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer, if the offeror is not an Interested Person (or
the Trustee, if an Interested Person is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code.
(e) The proceeds of any sale pursuant to this Section 3.18 after deduction
of the expenses of such sale incurred in connection therewith shall be promptly,
and in any event within one Business Day following receipt thereof, deposited in
the Collection Account in accordance with Section 3.05(a)(iv).
SECTION 3.19 Additional Obligations of the Master Servicer; Inspections.
The Master Servicer (or, with respect to Specially Serviced Mortgage Loans
and REO Properties, the Special Servicer) shall inspect or cause to be inspected
each Mortgaged Property at such times and in such manner as are consistent with
the Servicing Standard, but in any event shall inspect each Mortgaged Property
(i) with an Allocated Loan Amount of (a) $5,000,000 or more at least once every
12 months and (b) less than $5,000,000 at least once every 24 months, in each
case commencing in October 1999 (or at such lesser frequency as each Rating
Agency shall have confirmed in writing to the Master Servicer will not result in
a downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of the Certificates) and (ii) if any Mortgage Loan (a) becomes a
Specially Serviced Mortgage Loan, (b) has a debt service coverage ratio
(calculated as provided in the related Loan Documents) of less than 1.0x for the
immediately preceding twelve-month period or (c) is delinquent for 60 days, the
related Mortgaged Property shall be inspected by the Master Servicer (or the
Special Servicer with respect to Specially Serviced Mortgage Loans) as soon as
practicable and thereafter at least every 12 months for so long as such
condition exists. The cost of any such inspection shall be borne by the Master
Servicer unless the related Mortgage Loan is a Specially Serviced Mortgage Loan,
in which case any out-of-pocket costs incurred with respect to such inspection
shall be treated as a Property Advance and borne by the Trust Fund.
Notwithstanding the foregoing, the inspections of the Americold Pool
Properties will be conducted in accordance with the terms of the Co-Lender
Agreement and the Series 1998-GL II Pooling Agreement.
SECTION 3.20 Reports to the Securities and Exchange Commission; Available
Information.
(a) Based on information furnished to it by the Master Servicer and the
Seller (in 80 column unformatted electronic format acceptable to the Trustee)
the Trustee will prepare and file with the Securities and Exchange Commission on
Forms 8-K and 10-K (including EDGAR filings), on behalf of the Trust Fund the
Monthly Distribution Statements, any Special Event Reports provided to it by the
Master Servicer in 80 column unformatted electronic format, and any other
information reports requested by the Seller provided to it by the Seller in 80
column unformatted electronic format. The Trustee shall have no responsibility
to file any items other than those specified in this Section. Prior to January
2, 1999 (and each anniversary thereafter until directed by the Seller to file a
Form 15 delisting the transaction), the Trustee shall hire counsel selected by
the Seller to file reports on Form 10-K on behalf of the Trust Fund for the
preceding fiscal year. Any fees and expenses incurred by the Trustee in
connection with this Section (including reasonable attorneys' fees) shall be
reimbursed to it by the Seller. Manually-signed copies of each report shall be
delivered to the Seller to the attention of the Secretary (or such other Persons
as are designated in writing by the Seller), with a copy to the Trustee.
(b) [Reserved]
(c) The Master Servicer and the Special Servicer shall make available at
its offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies) for
review by the Seller, the Trustee, the Rating Agencies, any Certificateholder,
any Person identified to the Master Servicer or the Special Servicer, as
applicable, by a Certificateholder as a prospective transferee of a Certificate
and any other Persons to whom the Master Servicer or the Special Servicer, as
applicable, believes such disclosure to be appropriate the following items: (i)
all financial statements, occupancy information, rent rolls and similar
information received by the Master Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Master Servicer or the Special Servicer, as applicable, in
connection with the property inspections pursuant to Section 3.19, (iii) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Master Servicer or the Special Servicer, as applicable, and
(iv) any and all officer's certificates and other evidence delivered to the
Trustee and the Seller to support the Master Servicer's determination that any
Advance was, or if made would be, a Nonrecoverable Advance. The Master Servicer
may require that such party execute a reasonable confidentiality agreement
customary in the industry (and approved by the Seller) with respect to such
information.
Copies of any and all of the foregoing items shall be available from the
Master Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request at the requesting party's expense.
SECTION 3.21 Lock-Box Accounts, Escrow Accounts and Reserve Accounts.
The Master Servicer shall administer each Lock-Box Account, Escrow Account
and Reserve Account in accordance with the related Mortgage or Loan Agreement or
Lock-Box Agreement, if any, and administer any letters of credit pursuant to the
related letter of credit agreement and the Loan Documents.
SECTION 3.22 Property Advances.
(a) The Master Servicer (or, to the extent provided in Section 3.22(b), the
Trustee or the Fiscal Agent or, to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. With respect to the
Americold Pool Loan, determinations with respect to any Property Advances shall
be made in accordance with the terms of the Co-Lender Agreement. The Master
Servicer (and if the Master Servicer fails to do so, the Trustee or the Fiscal
Agent) shall make Property Advances to pay any amounts required as
reimbursements of Property Advances under the terms of the Co-Lender Agreement.
For purposes of distributions to Certificateholders and compensation to the
Master Servicer, Special Servicer or Trustee, Property Advances shall not be
considered to increase the principal balance of any Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so provide.
(b) The Master Servicer shall notify the Trustee and the Fiscal Agent, and
the Special Servicer shall notify the Master Servicer, the Trustee and the
Fiscal Agent, in writing promptly upon, and in any event within one Business Day
after, becoming aware that it will be unable to make any Property Advance
required to be made pursuant to the terms hereof, and in connection therewith,
shall set forth in such notice the amount of such Property Advance, the Person
to whom it will be paid, and the circumstances and purpose of such Property
Advance, and shall set forth therein information and instructions for the
payment of such Property Advance, and, on the date specified in such notice for
the payment of such Property Advance, or, if the date for payment has passed or
if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Master Servicer, and if the Master Servicer so
fails, the Trustee), subject to the provisions of Section 3.22(c), shall pay the
amount of such Property Advance in accordance with such information and
instructions. If the Trustee fails to make any Property Advance required to be
made under this Section 3.22, the Fiscal Agent, subject to the provisions of
Section 3.22(c), shall make such Advance on the same day the Trustee was
required to make such Property Advance and, thereby, the Trustee shall not be in
default under this Agreement.
(c) None of the Master Servicer, the Trustee, the Fiscal Agent or the
Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Master Servicer, the Trustee, the Fiscal
Agent or the Special Servicer, as applicable, determines that such Advance will
be a Nonrecoverable Advance. The Trustee and the Fiscal Agent (or the Master
Servicer with respect to a Property Advance required to be made by the Special
Servicer) shall be entitled to rely, conclusively, on any determination by the
Master Servicer or Special Servicer, as applicable, that a Property Advance, if
made, would be a Nonrecoverable Advance. The Trustee, the Fiscal Agent and the
Special Servicer, in determining whether or not a Property Advance previously
made is, or a proposed Property Advance, if made, would be, a Nonrecoverable
Advance shall be subject to the standards applicable to the Master Servicer
hereunder.
(d) The Master Servicer, the Special Servicer, the Trustee and/or the
Fiscal Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Master Servicer and Special Servicer
hereby covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.23 Appointment of Special Servicer.
(a) The Master Servicer is hereby appointed as the initial Special Servicer
to service each of the Mortgage Loans.
(b) The Controlling Class Representative at any time shall be entitled to
remove the Special Servicer with or without cause and to appoint a successor
Special Servicer entitled to the same servicing compensation as its predecessor,
provided that each Rating Agency confirms to the Trustee in writing that such
appointment, in and of itself, would not have caused a downgrade, qualification
or withdrawal of the then current ratings assigned to any Class of Certificates.
Notwithstanding the foregoing, the Controlling Class Representative may not
remove or replace the Series 1998-GL II Special Servicer. If there is a Special
Servicer Event of Default, the Special Servicer shall be removed and replaced
pursuant to Sections 7.01(c) and 7.02. The Special Servicer may be removed by
the Controlling Class Representative as aforesaid provided that a successor
Special Servicer is appointed, in respect of the Mortgage Loans that the Special
Servicer would no longer be servicing, as provided in this Section 3.23. The
Controlling Certificateholders shall assume any costs relating to the removal
without cause of the Special Servicer by the Controlling Class Representative
and to the subsequent appointment of a successor Special Servicer.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Master Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the initial
Special Servicer specified in Section 3.23(a) above shall not be liable for any
actions or any inaction of such successor Special Servicer. Any termination fee
payable to the terminated Special Servicer (and it is acknowledged that there is
no such fee payable in the event of a termination of the Master Servicer as
Special Servicer following the occurrence of an event of default hereunder)
shall be paid by the Certificateholders so terminating the Special Servicer and
shall not in any event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee and each Rating Agency, as evidenced in
writing and the Trustee has received written confirmation from each Rating
Agency that such appointment would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then current ratings on any Certificates.
(e) Any successor Special Servicer shall be deemed to make the
representations and warranties provided for in Section 2.04(a) mutatis mutandis
as of the date of its succession.
SECTION 3.24 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Master Servicer shall immediately give notice thereof to the
Special Servicer and the Controlling Class Representative and shall use its best
efforts to provide the Special Servicer with all information, documents (but
excluding the original documents constituting the Mortgage File) 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 duties hereunder with respect thereto
without acting through a sub-servicer. The Master Servicer shall use its best
efforts to comply with the preceding sentence within five Business Days of the
date such Mortgage Loan became a Specially Serviced Mortgage Loan and in any
event shall continue to act as Master Servicer and administrator of such
Mortgage Loan until the Special Servicer has commenced the servicing of such
Mortgage Loan, which shall occur upon the receipt by the Special Servicer of the
information, documents and records referred to in the preceding sentence. With
respect to each Mortgage Loan that becomes a Specially Serviced Mortgage Loan,
the Master Servicer shall instruct the related Borrower to continue to remit all
payments in respect of such Mortgage Loan to the Master Servicer. If GMAC
Commercial Mortgage Corporation ceases to be the Master Servicer or the Special
Servicer, the successor Master Servicer or Special Servicer, as applicable, may
agree that, notwithstanding the preceding sentence, with respect to each
Mortgage Loan that became a Specially Serviced Mortgage Loan, the Master
Servicer shall instruct the related Borrower to remit all payments in respect of
such Mortgage Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Master Servicer. The Special Servicer shall
remit to the Master Servicer any such payments received by it pursuant to the
preceding sentence within one Business Day of receipt. The Master Servicer shall
forward any notices it would otherwise send to the Borrower of a Specially
Serviced Mortgage Loan to the Special Servicer who shall send such notice to the
related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Master Servicer and, upon giving such notice, such Mortgage Loan shall cease to
be a Specially Serviced Mortgage Loan in accordance with the first proviso of
the definition of Specially Serviced Mortgage Loans, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Master Servicer to service and administer such Mortgage Loan as a Mortgage
Loan that is not a Specially Serviced Mortgage Loan shall resume. In addition,
if the related Borrower has been instructed, pursuant to the preceding
paragraph, to make payments to the Special Servicer, upon such determination,
the Special Servicer shall instruct the related Borrower to remit all payments
in respect of such Specially Serviced Mortgage Loan directly to the Master
Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, 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 (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
(c) [Reserved]
(d) Notwithstanding the provisions of the preceding subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and shall provide the Special Servicer
with any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Master
Servicer with any information reasonably required by the Master Servicer to
perform its duties under this Agreement.
SECTION 3.25 Interest Reserve Account.
The Trustee shall establish and maintain the Interest Reserve Account in
the Trustee's name for the benefit of the Certificateholders. The Interest
Reserve Account shall be established and maintained as an Eligible Account. On
each Master Servicer Remittance Date occurring in February and on any Master
Servicer Remittance Date occurring in January in a year which is not a leap
year, the Trustee shall withdraw from the Lower-Tier Distribution Account, in
respect of all the Mortgage Loans which accrue interest on the basis of a
360-day year and the actual number of days in the related month, for deposit
into the Interest Reserve Account, an amount equal to one day's interest at the
related Mortgage Rate on the Stated Principal Balance of each such Mortgage Loan
as of the Due Date in the month preceding the month in which such Master
Servicer Remittance Date occurs, to the extent a Monthly Payment or P&I Advance
is made in respect thereof (all amounts so deposited in any consecutive January
(if applicable) and February, "Withheld Amounts"). On or prior to the Master
Servicer Remittance Date in March of each calendar year, the Trustee shall
transfer to the Lower-Tier Distribution Account the aggregate of all Withheld
Amounts on deposit in the Interest Reserve Account.
SECTION 3.26 Limitations on and Authorizations of the Master Servicer and
Special Servicer with Respect to Specific Mortgage Loans.
With respect to any Mortgage Loan which permits the related Borrower, with
the consent or grant of a waiver by mortgagee, to incur additional indebtedness
or to amend or modify the related Borrower's organizational documents, then the
Master Servicer or the Special Servicer, as the case may be, may only consent to
either such action, or grant a waiver with respect thereto, if the Master
Servicer or the Special Servicer determines that such consent or waiver is
likely to result in a greater recovery on a present value basis (discounted at
the related Mortgage Rate) than would not consenting to such action and the
Master Servicer or the Special Servicer first obtains written confirmation from
each Rating Agency that such consent or grant of a waiver would not, in and of
itself, result in a downgrade, qualification or withdrawal of any of the then
current ratings assigned to the Certificates. Any such consent or waiver shall
also satisfy the criteria set forth in Section 3.09 (b), to the extent
applicable.
The Master Servicer shall receive bills from the Rating Agencies for
monitoring, review and surveillance of the Certificates and the Mortgage Loans
on behalf of the Seller and shall pay such amounts in a timely manner. In the
event that Rating Agency confirmation is required in connection with any
exercise of rights by the Master Servicer or the Special Servicer, as
applicable, under any Mortgage Loan, the Master Servicer or Special Servicer, as
the case may be, shall use its reasonable best efforts to cause the related
Borrower to pay any fee required by the applicable Rating Agency for such
confirmation. If the related Borrower does not pay such fee, and the Mortgage
Loan is a Specially Serviced Mortgage Loan, such fee shall be paid by the Master
Servicer or Special Servicer, as the case may be, as an Advance and shall be
borne by the Trust Fund. If the Borrower does not pay such fee, and the Mortgage
Loan is not a Specially Serviced Mortgage Loan, the Seller shall pay such fee.
Prior to taking any enforcement action with respect to a Mortgage Loan
secured in whole or in part by Mortgaged Properties located in a "one-action"
state, the Master Servicer or Special Servicer, as applicable, shall consult
with legal counsel admitted to practice in the relevant jurisdiction, the fees
and expenses of which shall be an expense of the Trust Fund.
With respect to all Mortgage Loans that provide that the holder of the
related Note may apply the monthly payment against principal, interest and any
other sums due in the order as the holder shall determine, the Master Servicer
shall apply such Monthly Payment to interest (other than Excess Interest or
Default Interest) under the related Mortgage Loan prior to application to
principal or any other sums due.
With respect to each Mortgage Loan, neither the Master Servicer (nor the
Special Servicer (including in its capacity as a Certificateholder, if
applicable), shall 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 requests for collection, until the Maturity
Date of the related Mortgage Loan; provided, that the Master Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the Loan
Documents.
The obligations of the Master Servicer and Special Servicer set forth in
this Section 3.26 shall be subject to the operative documents with respect to
the related Mortgage Loan, and the failure or inability of the related Borrower
to comply with the Master Servicer's or the Special Servicer's direction shall
not be deemed to be an Event of Default of the Master Servicer or the Special
Servicer hereunder.
The Master Servicer shall send written notice to each Borrower and the
related Manager and clearing bank that, if applicable, the Master Servicer
and/or the Trustee has been appointed as the "Designee" of the "Lender" (or
equivalent terminology) under any related Lock-Box Agreement.
For any Mortgage Loan and with respect to which, under the terms of the
related Loan Documents, the mortgagee may, in its discretion, apply Insurance
Proceeds, condemnation awards or escrowed funds to the prepayment of such loan
prior to the expiration of the related Lock-out Period, the Master Servicer or
Special Servicer, as applicable, may only require such a prepayment if the
Master Servicer or Special Servicer, as applicable, has determined in accordance
with the Servicing Standard that such prepayment is in the best interests of the
Certificateholders.
SECTION 3.27 Modifications, Waivers and Amendments.
(a) Subject to subsections (b) through (g) below, as applicable, each of
the Master Servicer, any subservicer and the Special Servicer may agree to any
modification, waiver or amendment of any term of any Mortgage Loan.
(b) The Master Servicer, any subservicer or the Special Servicer, as
applicable, shall determine, in accordance with the Servicing Standard, that any
modification, waiver or amendment is appropriate.
(c) None of the Master Servicer, any subservicer or the Special Servicer
shall agree to any modification, waiver or amendment of any term of any Mortgage
Loan if such modification, waiver or amendment would:
(i) affect the amount or timing of any related scheduled payments of
principal, interest or other amount (including Yield Maintenance Charges)
payable under the Mortgage Loan;
(ii) affect the obligation of the related Borrower to pay a Yield
Maintenance Charge or permit a Principal Prepayment during the applicable
Lock-out Period;
(iii) except as expressly provided by the related Mortgage, or in
connection with a material adverse environmental condition at the related
Mortgaged Property, result in a release of the lien of the related Mortgage
on any material portion of such Mortgaged Property without a corresponding
Principal Prepayment; or
(iv) in the judgment of the Master Servicer or the Special Servicer, as
applicable, materially impair the security for the Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding anything set forth in Section 3.27(c), the Master
Servicer or the Special Servicer may, consistent with the Servicing Standard,
and in compliance with any applicable Loan Document, only allow a substitution
of collateral and the assumption of a Borrower's obligations with respect to a
Mortgage Loan (i) in accordance with the terms thereof and (ii) provided the
Master Servicer or Special Servicer, as applicable, has received an Opinion of
Counsel at the expense of the party requesting such substitution, as applicable,
or the Borrower to the effect that the substitution of such collateral will not
result in a tax being imposed on the Trust Fund or cause any REMIC created
pursuant to this Agreement to fail to qualify as a REMIC under the REMIC
Provisions at any time the Certificates are outstanding.
(e) Notwithstanding anything set forth in Section 3.27(c), the Special
Servicer may, consistent with the Servicing Standard:
(i) reduce the amounts owing under any Specially Serviced Mortgage Loan
by forgiving principal, accrued interest and/or any Yield Maintenance
Charge;
(ii) reduce the amount or change the timing of the Monthly Payment on
any Specially Serviced Mortgage Loan, including by way of a reduction in
the related Mortgage Rate;
(iii) forbear in the enforcement of any right granted under any
Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan;
(iv) extend the Maturity Date of any Specially Serviced Mortgage Loan;
and/or
(v) accept a Principal Prepayment during any Lock-out Period;
provided, however, that (x) the related Borrower is in default with respect to
the Specially Serviced Mortgage Loan or, in the judgment of the Special
Servicer, such default is reasonably foreseeable, (y) in the sole, good faith
judgment of the Special Servicer, such modification, waiver or amendment would
increase the recovery to Certificateholders on a net present value basis
documented to the Trustee, by means of an Officer's Certificate of the Special
Servicer setting forth the procedures and considerations of the Special Servicer
forming the basis of the Special Servicer's determination (including but not
limited to information such as related income and expense statements, rent
rolls, occupancy status, property inspections, and an Independent MAI appraisal
of the related Mortgaged Property, if otherwise required pursuant to this
Agreement or the Servicing Standard), and (z) such modification, waiver or
amendment does not result in a tax being imposed on the Trust Fund or cause any
REMIC created pursuant to this Agreement to fail to qualify as a REMIC under the
REMIC Provisions at any time the Certificates are outstanding, based on an
Opinion of Counsel obtained at the expense of the Trust Fund.
(f) Notwithstanding anything set forth in this Agreement, in no event shall
the Special Servicer be permitted to:
(i) extend the Maturity Date of a Mortgage Loan beyond a date that is
two years prior to the Rated Final Distribution Date; or
(ii) if the Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Mortgage Loan beyond a date which is 10 years prior
to the expiration of the term of such ground lease.
(g) The Master Servicer or the Special Servicer, as applicable, shall
provide copies of any modifications, waivers, amendments or extensions to the
Controlling Class Representative. All modifications, waivers, amendments and
other actions entered into or taken in respect of the Mortgage Loans pursuant to
this Section 3.27 shall be in writing. The Master Servicer or the Special
Servicer, as applicable, shall notify the other servicer and the Trustee, in
writing, of any modification, waiver, amendment or other action entered into or
taken in respect of any Mortgage Loan pursuant to this Section 3.27, prior to
the effective date thereof and the date as of which the related modification,
waiver or amendment is to take effect, and shall deliver to the Trustee or the
related Custodian for deposit in the related Mortgage File (with a copy to the
Master Servicer) an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. Copies of each
agreement whereby any such modification, waiver or amendment of any term of any
Mortgage Loan is effected shall be made available for review during normal
business hours at the offices of the Special Servicer. Following the execution
of any modification, waiver or amendment agreed to by the Master Servicer or the
Special Servicer, as applicable, pursuant to subsection (a), (e) or (f) above,
as applicable, such servicer shall deliver to the Trustee (with a copy to the
Master Servicer, if such agreement is by the Special Servicer) an Officer's
Certificate setting forth in reasonable detail the basis of the determination
made by it pursuant to subsection (a), (e) or (f) above.
(h) 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 so permit or
that such interest may actually be capitalized.
(i) Promptly after any Mortgage Loan becomes a Specially Serviced Mortgage
Loan, the Special Servicer shall request from the Trustee the name of the
current Controlling Class Representative. Upon receipt of the name of such
current Controlling Class Representative from the Trustee, the Special Servicer
shall notify the Controlling Class Representative that such Mortgage Loan became
a Specially Serviced Mortgage Loan. Officers of the Special Servicer shall, at
the request of the Controlling Class Representative, be reasonably available
during regular business hours to discuss with such Controlling Class
Representative objectives and strategies.
(j) No later than forty-five (45) days after the servicing of such Mortgage
Loan is transferred to the Special Servicer, the Special Servicer shall deliver
to the Trustee, the Master Servicer, each Rating Agency and the Controlling
Class Representative a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan and
any negotiations with the related Borrower;
(ii) consideration of alternatives to the exercise of remedies (such as
forbearance relief, modification of the terms and conditions of such
Mortgage Loan, disposition of the Specially Serviced Mortgage Loan or the
related Mortgaged Property and application of the proceeds of such
disposition to the outstanding principal balance of such Mortgage Loan and
interest thereon, or abandonment of the related Mortgaged Property);
(iii) a discussion of the probable time frames and estimated amount of
any related Property Advances applicable to each of the alternatives
referred to above;
(iv) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Mortgage Loan and a recommendation as to whether outside legal
counsel should be retained;
(v) estimated budgets for any operating or capital funds expected to be
required for the related Mortgaged Property;
(vi) the most current rent roll available for and any strategy for the
leasing or releasing of the related Mortgaged Property;
(vii) the Special Servicer's analysis and recommendations (which will
include a discussion of alternative courses of action and a comparison of
the probable benefits and detriments of each alternative course of action)
on how such Specially Serviced Mortgage Loan might be returned to
performing status and returned to the Master Servicer for regular servicing
under this Agreement or otherwise realized upon; and
(viii) such other information as the Special Servicer deems relevant in
light of the Servicing Standard.
The Controlling Class Representative may object to any Asset Status Report
within ten (10) Business Days of receipt; provided, however, that the Special
Servicer shall implement the recommended action as outlined in such Asset Status
Report if it makes an affirmative determination that not taking such action
would result in a violation of the Servicing Standard. If the Controlling Class
Representative disapproves such Asset Status Report and the Special Servicer has
not made the affirmative determination described above, the Special Servicer
will revise such Asset Status Report as soon as practicable thereafter, but in
no event later than 30 days after such disapproval. The Special Servicer shall
revise such Asset Status Report as described above until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes an affirmative determination that
such objection is inconsistent with the Servicing Standard; provided, however,
in the event that the Controlling Class Representative and the Special Servicer
have not agreed upon an Asset Status Report with respect to a Specially Serviced
Mortgage Loan within 120 days of the Controlling Class Representative's receipt
of the initial Asset Status Report with respect to such Specially Serviced
Mortgage Loan, the Special Servicer shall implement the actions described in the
most recent Asset Status Report submitted to the Controlling Class
Representative by the Special Servicer. The Special Servicer may, from time to
time, modify any Asset Status Report it has previously delivered and implement
such report, provided such report shall have been prepared, reviewed and not
rejected pursuant to the terms of this Section. Notwithstanding the foregoing,
the Special Servicer (i) may, following the occurrence of an extraordinary event
with respect to the related Mortgaged Property, take any action set forth in
such Asset Status Report before the expiration of a ten (10) Business Day period
if the Special Servicer has reasonably determined that failure to take such
action would materially and adversely affect the interest of the
Certificateholders and it has made a reasonable effort to contact the
Controlling Class Representative and (ii) in any case, shall determine whether
such disapproval is not in the best interest of all the Certificateholders
pursuant to the Servicing Standard.
(k) The Special Servicer shall have the authority to meet with the Borrower
for any Specially Serviced Mortgage Loan and take such actions consistent with
Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report
except as provided in (j) above.
(l) Upon request of any Certificateholder (or any Beneficial Owner, if
applicable, which shall have provided the Trustee with evidence satisfactory to
the Special Servicer and the Trustee of its interest in a Certificate) or Rating
Agency, the Trustee shall mail, without charge, to the address specified in such
request a copy of the most current Asset Status Report for any Specially
Serviced Mortgage Loan or REO Property.
(m) Prior to delivering an Asset Status Report to any Certificateholder or
Beneficial Owner, the Trustee shall have obtained an acknowledgment from the
recipient thereof that U.S. securities laws may restrict the use of the
information in the Asset Status Report.
(n) Notwithstanding the foregoing subsections of this Section 3.27, the
Master Servicer or the Special Servicer, as applicable, shall be permitted to
modify, waive or amend any term of a Mortgage Loan that is not in default or as
to which default is not reasonably foreseeable, but only if such modification,
waiver or amendment (a) would not be "significant" as such term is defined in
Treasury Regulations Section 1.860G-2(b)(3), as determined by the Master
Servicer or Special Servicer (and the Master Servicer or Special Servicer may
rely on an Opinion of Counsel in making such determination), (b) would be in
accordance with the Servicing Standard and (c) would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The consent thereto of the majority of Percentage Interests of each Class of
Certificates affected thereby or written confirmation from each Rating Agency
that such modification, waiver or amendment will not result in a qualification,
withdrawal or downgrading of the then current ratings assigned to the
Certificates shall not be required but shall be conclusive evidence that such
modification, waiver or amendment would not adversely affect in any material
respect the interest of any Certificateholder not consenting thereto.
SECTION 3.28 The Healthcare Adviser.
(a) As soon as practicable after the Master Servicer determines that a
Healthcare Advisor Loan has a debt service coverage ratio (calculated as
provided in the related Mortgage Loan Documents) of less than 1.5x for the
immediately preceding twelve-month period, it will notify the Special Servicer
and provide all information reasonably requested by the Special Servicer with
respect to such Healthcare Advisor Loan. Promptly (but in no event later than
five days) after the Trustee receives written notice from the Master Servicer or
the Special Servicer that any of the Healthcare Adviser Loans became a Specially
Serviced Mortgage Loan, the Trustee shall request the Controlling Class
Representative to appoint a Healthcare Adviser with respect to such Healthcare
Adviser Loan and the related Mortgaged Property. In the event the Controlling
Class Representative does not appoint a Healthcare Adviser within five days, the
Trustee will notify the Special Servicer and the Special Servicer shall do so,
provided that in no event will the appointment of the Healthcare Adviser be more
than 30 days following the Trustee receiving notice of the related Healthcare
Adviser Loan becoming a Specially Serviced Mortgage Loan. There shall not be a
Healthcare Adviser for a Healthcare Adviser Loan that is not being specially
serviced. Any Healthcare Adviser appointed pursuant to this Section must be an
Eligible Healthcare Adviser.
(b) The Trustee and the Special Servicer shall be required to deliver to
the Healthcare Adviser all reports and other information they receive (to the
extent received and Master Servicer routinely prepares such report), with
respect to the related healthcare related Mortgaged Properties and Healthcare
Adviser Loans. The Healthcare Adviser will monitor such Healthcare Adviser Loans
and related Mortgaged Properties and will provide advice to the Special Servicer
and the Controlling Class Representative with respect to them. The Special
Servicer will be restricted from taking any material actions with respect to
specially serviced Healthcare Adviser Loans and related Mortgaged Properties
without first providing notice to, and consulting with, the Healthcare Adviser;
provided, however, that the Special Servicer may take any actions it determines
are necessary, in accordance with the Servicing Standard, and otherwise
consistent with this Agreement, to respond to an emergency affecting a
Healthcare Adviser Loan that is a Specially Serviced Mortgage Loan, so long as
it consults with the Healthcare Adviser as soon as practicable. The Healthcare
Adviser in turn will recommend to the Special Servicer what action should be
taken with respect to such Mortgage Loans and Mortgaged Properties, provided
that in no case will the Special Servicer be required to follow any
recommendation given to it by the Healthcare Adviser.
(c) The Healthcare Adviser will be entitled to receive from the
Distribution Account the Healthcare Adviser Fee. The Healthcare Adviser Fee will
be an expense of the Trust Fund that is in addition to compensation paid to the
Special Servicer.
(d) The Healthcare Adviser shall have no responsibility or liability to the
Trust or any Class of 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 that the Healthcare Adviser will not be protected
against any liability which would otherwise be imposed by reason of willful
misconduct, bad faith, fraud or gross negligence in the performance of duties or
by reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Healthcare Adviser may advise actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificate, and that the
Healthcare Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a) (i) On each Master Servicer Remittance Date, to the extent of Available
Funds, an amount held in the Collection Account equal to the sum of (A)
Available Funds and (B) any Yield Maintenance Charges and the Trustee Fee for
the related Distribution Date shall be withdrawn by the Master Servicer and
remitted to the Trustee for deposit in the Lower-Tier Distribution Account and,
if required pursuant to Section 3.05(e), the Payment Reserve Account. On each
Master Servicer Remittance Date, the Trustee shall withdraw any amounts required
pursuant to Section 3.05(e) from the Payment Reserve Account and shall deposit
such amounts in the Lower-Tier Distribution Account, together with any amounts
drawn under the Reinvestment Enhancement Instrument or from the Reinvestment
Reserve Account pursuant to Section 4.08. On each Distribution Date, the amount
that has been so transferred to the Lower-Tier Distribution Account from the
Collection Account shall be distributed on the Lower-Tier Regular Interests to
the Upper-Tier REMIC, in accordance with the provisions set forth herein.
Thereafter, such amounts shall be considered to be held in the Upper-Tier
Distribution Account until distributed to the Certificateholders.
(ii) Principal amounts, rates of interest and timing of distributions on
each Lower-Tier Regular Interest will be identical to such amounts, rates, and
timing on the corresponding Related Certificates, except that, solely for this
purpose, all calculations of interest with respect to the Related Lower-Tier
Regular Interests shall be made as though the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificate Pass-Through Rates were equal to the WAC Rate and as though the
Notional Amount of the Class X Certificates were zero at all times, such that
the rates of interest and timing of interest distributions on each Related
Lower-Tier Regular Interest represent the aggregate of the corresponding amounts
on each Related Certificate and its related Component of the Class X
Certificates; provided that interest shall be distributable on such Lower-Tier
Regular Interest only to the extent actually distributed on such related
Certificate or related Component.
Any Yield Maintenance Charge that is to be paid to a Regular Certificate,
other than the Class X Certificates, shall be paid to the Related Lower-Tier
Regular Interest, and the balance of any such Yield Maintenance Charge, so long
as any one or more of the Class LA-1, Class LA-2, Class LA-3, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ or Class LK
Interests remain outstanding, shall be paid to such Lower-Tier Regular
Interests, pro rata, in proportion to the Interest Distribution Amount for the
Related Certificates for such Distribution Date. Realized Losses shall be
allocated to, and shall reduce the Certificate Principal Amounts of, each Class
of Lower-Tier Regular Interests without distribution on any Distribution Date,
to the extent that the Certificate Principal Amount of such Class exceeds the
Certificate Principal Amount of the corresponding Related Certificates because
of Realized Losses allocated to such Related Certificates.
On each Distribution Date, the Class LR Certificates shall receive
distributions of any amounts remaining in the Lower-Tier Distribution Account
after all payments have been made to the Trustee as the holder of the Lower-Tier
Regular Interests in accordance with this Section 4.01(a).
(b) On each Distribution Date prior to the Cross-over Date, Holders of each
Class of Certificates (other than the Class Q, Class R and Class LR
Certificates) shall receive distributions from amounts on deposit in the
Upper-Tier Distribution Account in respect of interest and principal, to the
extent of Available Funds, in the amounts and in the order of priority set forth
below:
(i) First, pro rata, in respect of interest, to the Class A-1, Class
A-2, Class A-3 and Class X Certificates, up to an amount equal to, and pro
rata as among such Classes in accordance with, the Interest Distribution
Amounts of such Classes;
(ii) Second, to the Class A Certificates, in reduction of their
respective Certificate Principal Amounts pro rata: (A) first, to the Class
A-1 Certificates, and second, to the Class A-2 Certificates, in each case
up to an amount equal to the lesser of (i) the Certificate Principal Amount
thereof and (ii) the Principal Distribution Amount for Group 1 for such
Distribution Date (plus, after the Certificate Principal Amount of the
Class A-3 Certificates has been reduced to zero, the Principal Distribution
Amount for Group 2 for such Distribution Date (or the portion remaining
after making the required distributions to the Class A-3 Certificates
pursuant to this paragraph)); and (B) to the Class A-3 Certificates, up to
an amount equal to the lesser of (i) the Certificate Principal Amount
thereof and (ii) the Principal Distribution Amount for Group 2 for such
Distribution Date (plus, after the Certificate Principal Amounts of the
Class A-1 and Class A-2 Certificates have been reduced to zero, the
Principal Distribution Amount for Group 1 for such Distribution Date (or
the portion remaining after making the required distributions to the Class
A-1 and Class A-2 Certificates pursuant to this paragraph));
(iii) Third, to the Class B Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount of such Class;
(iv) Fourth, to the Class B Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(v) Fifth, to the Class B Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(vi) Sixth, to the Class C Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount of such Class;
(vii) Seventh, to the Class C Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(viii) Eighth, to the Class C Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(ix) Ninth, to the Class D Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount of such Class;
(x) Tenth, to the Class D Certificates, in reduction of the Certificate
Principal Amount thereof, up to an amount equal to the Principal
Distribution Amount for Group 1 and Group 2, less the portion of the
Principal Distribution Amount distributed pursuant to all prior clauses,
until the Certificate Principal Amount thereof is reduced to zero;
(xi) Eleventh, to the Class D Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xii) Twelfth, to the Class E Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such Class;
(xiii) Thirteenth, to the Class E Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xiv) Fourteenth, to the Class E Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xv) Fifteenth, to the Class F Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such Class;
(xvi) Sixteenth, to the Class F Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xvii) Seventeenth, to the Class F Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xviii) Eighteenth, to the Class G Certificates in respect of interest,
up to an amount equal to the Interest Distribution Amount of such Class;
(xix) Nineteenth, to the Class G Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xx) Twentieth, to the Class G Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xxi) Twenty-first, to the Class H Certificates in respect of interest,
up to an amount equal to the Interest Distribution Amount of such Class;
(xxii) Twenty-second, to the Class H Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xxiii) Twenty-third, to the Class H Certificates, an amount equal to
the aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xxiv) Twenty-fourth, to the Class J Certificates in respect of
interest, up to an amount equal to the Interest Distribution Amount of such
Class;
(xxv) Twenty-fifth, to the Class J Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xxvi) Twenty-sixth, to the Class J Certificates, an amount equal to
the aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class;
(xxvii) Twenty-seventh, to the Class K Certificates in respect of
interest, up to an amount equal to the Interest Distribution Amount of such
Class;
(xxviii) Twenty-eighth, to the Class K Certificates, in reduction of
the Certificate Principal Amount thereof, up to an amount equal to the
Principal Distribution Amount for Group 1 and Group 2, less the portion of
the Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is reduced to zero;
(xxix) Twenty-ninth, to the Class K Certificates, an amount equal to
the aggregate of unreimbursed Realized Losses previously allocated to such
Class, plus interest thereon at the Pass-Through Rate for such Class
compounded monthly from the date the related Realized Loss was allocated to
such Class; and
(xxx) Thirtieth, to the Class LR Certificates, any amounts remaining in
the Lower-Tier Distribution Account, and to the Class R Certificates, any
amounts remaining in the Upper-Tier Distribution Account.
On each Distribution Date occurring on and after the Cross-over Date, in
place of the allocation of principal payments described in priority Second
above, remaining Available Funds at such level will be distributed first up to
an amount equal to the Principal Distribution Amount for such Distribution
Amount to the Class A-1, Class A-2 and Class A-3 Certificates, pro rata, based
on their respective Certificate Principal Amounts, in reduction of their
respective Certificate Principal Amounts, until the Certificate Principal Amount
of each such Class is reduced to zero, and, second, to the Class A-1, Class A-2
and Class A-3 Certificates for unreimbursed amounts of Realized Losses
previously allocated to such Classes, pro rata, in accordance with the amount of
such unreimbursed Realized Losses so allocated, plus interest thereon at their
respective Pass-Through Rates compounded monthly from the date the related
Realized Losses were allocated to such Classes. Any remaining Available Funds
will then be allocated as provided in priorities Third through Twenty-first
above.
All references to "pro rata" in the preceding clauses with respect to
interest and Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Principal Amount, and with respect to distributions in
reimbursement of Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) On any Distribution Date, any Yield Maintenance Charges collected on
Mortgage Loans in Group 1 during the related Prepayment Period will be
distributed to the Holders of the Classes of Certificates as follows: to the
holders of the Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates, for each such Class an amount equal to the product of (a) a
fraction, the numerator of which is the amount distributed as principal to such
Class on such Distribution Date, and the denominator of which is the total
amount distributed as principal to all Classes of Sequential Pay Certificates
(other than the Class A-3 Certificates) on such Distribution Date, (b) the Base
Interest Fraction for the related Principal Prepayment and such Class of
Certificates and (c) the aggregate amount of Yield Maintenance Charges collected
on such Principal Prepayment during the Prepayment Period. Any Yield Maintenance
Charges collected on Mortgage Loans in Group 1 during such Prepayment Period
remaining after such distributions will be distributed to the holders of the
Class X Certificates.
On any Distribution Date, any Yield Maintenance Charges collected on
Mortgage Loans in Group 2 during the related Prepayment Period will be
distributed to the Holders of the Class A-3 Certificates in an amount equal to
the product of (a) a fraction, not greater than 1, the numerator of which is the
amount distributed as principal to such Class on such Distribution Date, and the
denominator of which is the total amount distributed as principal to all Classes
of Sequential Pay Certificates from the Mortgage Loans in Group 2 on such
Distribution Date, (b) the Base Interest Fraction for the related Principal
Prepayment and such Class of Certificates and (c) the aggregate amount of Yield
Maintenance Charges collected on such Principal Prepayment during the Prepayment
Period. Any Yield Maintenance Charges collected on Mortgage Loans in Group 2
during such Prepayment Period remaining after such distributions will be
distributed to the holders of the Class X Certificates.
After the Distribution Date on which the Certificate Principal Amounts of
the Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates
have been reduced to zero, all Yield Maintenance Charges collected with respect
to Mortgage Loans in Group 1 will be distributed to the holders of the Class X
Certificates. After the Distribution Date on which the Certificate Principal
Amount of the Class A-3 Certificates has been reduced to zero, all Yield
Maintenance Charges collected with respect to Mortgage Loans in Group 2 will be
distributed to the holders of the Class X Certificates.
(d) Subject to Section 3.05(c), on each Distribution Date the Trustee shall
withdraw from the Class Q Distribution Account the amount of any Net Default
Interest and amounts remitted to the Trustee in respect of the AIMCO Multifamily
Pool Conditional Debt received in the related Prepayment Period and shall
distribute such funds to the holders of the Class Q Certificates.
(e) On each Distribution Date, any Excess Interest received with respect to
Mortgage Loans during the related Collection Period shall be distributed to
holders of Certificates as follows: to the holders of the Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F and Class G Certificates, pro rata,
based on their initial Certificate Principal Amounts. Notwithstanding the
reduction of the Certificate Principal Amount of any of the aforementioned
Classes of Certificates to zero, such Class may receive distributions in respect
of Excess Interest in accordance with the allocations set forth herein.
(f) [Reserved]
(g) The Certificate Principal Amount of each Class of Sequential Pay
Certificates entitled to distributions of principal will be reduced without
distribution on any Distribution Date, as a write-off, to the extent of any
Realized Loss allocated to such Class on such Distribution Date. Any such
write-offs will be applied to such Classes of Sequential Pay Certificates in the
following order, until each is reduced to zero; first, to the Class K
Certificates; second, to the Class J Certificates, third, to the Class H
Certificates; fourth, to the Class G Certificates; fifth; to the Class F
Certificates; sixth, to the Class E Certificates; seventh, to the Class D
Certificates; eighth, to the Class C Certificates; ninth, to the Class B
Certificates, and, finally, pro rata to the Class A-1, Class A-2 and Class A-3
Certificates based on their respective Certificate Principal Amounts. Any
amounts recovered in respect of any amounts previously written off as Realized
Losses will be distributed to the Classes of Certificates described above in the
reverse order of allocation of Realized Losses thereto.
Shortfalls in Available Funds resulting from additional servicing
compensation other than the Servicing Fee, interest on Advances not covered by
Default Interest, Additional Trust Fund Expenses, a reduction of the interest
rate of a Mortgage Loan by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or other unanticipated
or default-related expenses (not constituting Realized Losses) will be allocated
to interest due on each Class of Certificates in the same order as Realized
Losses are applied to the Certificate Principal Amounts thereof. Excess
Prepayment Interest Shortfalls will be allocated to each Class of Certificates,
pro rata, based upon the amount of interest which would have otherwise been
distributed to each Class of Certificates. The Notional Amount of the Class X
Certificates will be reduced to reflect reductions in the Certificate Principal
Amount of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J and Class K Certificates resulting from
allocations of Realized Losses.
(h) All amounts distributable, or reductions allocable on account of
Realized Losses, to a Class of Certificates pursuant to this Section 4.01 on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in each such Class based on their respective Percentage Interests.
Such distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
(a) by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity located in the United States and
having appropriate facilities therefor, if such Certificateholder provides the
Trustee with wiring instructions no less than five Business Days prior to the
related Record Date, or otherwise (b) by check mailed to such Certificateholder.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate Registrar
acting as such agent) that is specified in the notice to Certificateholders of
such final distribution.
(i) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information previously
provided to it 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 office of the
Trustee therein specified, and
(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificate, or on the Related Lower-Tier
Regular Interests from and after such Distribution Date;
provided, however, that the Class Q, Class R and Class LR Certificates shall
remain outstanding until there is no other Class of Certificates outstanding.
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 in trust
for the benefit of the appropriate non-tendering Holder or Holders. If any
Certificates as to which notice has been given pursuant to this Section 4.01(i)
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 to receive the final distribution with respect thereto. If within
one year after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. If within two years after the second notice any such Certificates
shall not have been surrendered for cancellation, the Paying Agent shall pay to
the Trustee all amounts distributable to the Holders thereof, and the Trustee
shall thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee hereunder and the transfer of such
amounts to a successor Trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Class R Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
hereunder or 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(i). 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.
(j) The Certificate Principal Amounts of the Class K, Class J, Class H,
Class G, Class F, Class E, Class D, Class C and Class B Certificates will be
notionally reduced (solely for purposes of determining the Voting Rights of the
related Classes) on any Distribution Date to the extent of any Appraisal
Reduction Amounts allocated to such Classes on such Distribution Date. To the
extent that the aggregate of the Appraisal Reduction Amounts for any
Distribution Date exceeds such Certificate Principal Amount, such excess will be
applied, subject to any reversal described below, to notionally reduce the
Certificate Principal Amounts of the next most subordinate Class of Certificates
on the next Distribution Date. Any such reductions will be applied in the
following order of priority: first, to the Class G Certificates; second, to the
Class F Certificates; third, to the Class E Certificates; fourth, to the Class D
Certificates; fifth, to the Class C Certificates; and finally, to the Class B
Certificates (provided in each case that no Certificate Principal Amount in
respect of any such Class may be notionally reduced below zero).
SECTION 4.02 Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher.
(a) On each Distribution Date, the Trustee shall, based on information
provided by the Master Servicer or provided by the Special Servicer to the
Master Servicer (with respect to a Specially Serviced Mortgage Loan, an REO
Property or the servicing responsibilities of the Special Servicer set forth
herein including the Special Servicer's obligation to make Advances) and subject
to receipt thereof, prepare and forward by mail to each Holder of a Certificate,
with copies to the Seller, the Paying Agent, the Master Servicer, the Special
Servicer, the Rating Agencies and up to three market reporting services
designated by the Seller, a statement as to such distribution (a "Monthly
Distribution Statement") setting forth the information set forth on Exhibit J
hereto, and including among other things, for each Class, as applicable:
(i) the Principal Distribution Amount for each Loan Group and the
amount of Available Funds allocable to principal included therein;
(ii) The Interest Distribution Amount distributable on such Class and
the amount of Available Funds allocable thereto, together with any Interest
Shortfall allocable to such Class;
(iii) The amount of any P&I Advances by the Master Servicer, the
Trustee or the Fiscal Agent included in the amounts distributed to
Certificateholders not reimbursed since the previous Distribution Date;
(iv) The initial Certificate Principal Amount or initial Notional
Amount, as applicable, of each Class, and the Certificate Principal Amount
or Notional Amount, as applicable, of each Class after giving effect to the
distribution of amounts in respect of the Principal Distribution Amount on
such Distribution Date;
(v) Realized Losses (for such month and cumulative basis and on a
Mortgage Loan by Mortgage Loan basis) and their allocation to the
Certificate Principal Amount of any Class of Certificates;
(vi) The Stated Principal Balance of the Mortgage Loans as of the Due
Date immediately prior to such Distribution Date;
(vii) The number and aggregate principal balance of Mortgage Loans (and
the identity of each related Borrower) (A) delinquent one month, (B)
delinquent two months, (C) delinquent three or more months, (D) as to which
foreclosure proceedings have been commenced and (E) that otherwise
constitute Specially Serviced Mortgage Loans, and, with respect to each
Specially Serviced Mortgage Loan, the amount of Property Advances made
during the related Prepayment Period, the amount of the P&I Advance made
with respect to such Distribution Date, the aggregate amount of Property
Advances theretofore made that remain unreimbursed and the aggregate amount
of P&I Advances theretofore made that remain unreimbursed;
(viii) With respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance and appraised
value (based on an Updated Appraisal, if required under Section 3.10(a)) of
such Mortgage Loan as of the date it became an REO Mortgage Loan;
(ix) (A) For any REO Property sold during the related Prepayment
Period, the date on which the Special Servicer determined that a Final
Recovery Determination was made and the amount of the proceeds of such sale
deposited into the Collection Account,
(B) the aggregate amount of other revenues collected by the Special
Servicer with respect to each REO Property during the related Prepayment
Period and credited to the Collection Account, in each case identifying
such REO Property by name, and
(C) the appraised value as determined by the most recent Updated
Appraisal (or annual letter update thereof) of any REO Property, if
required under Section 3.10(a);
(x) The amount of the Servicing Fee, Trustee Fee and Special Servicing
Compensation paid with respect to such Distribution Date;
(xi) (A) The amount of Yield Maintenance Charges, if any, received
during the related Prepayment Period, (B) the amount of Default Interest
received during the related Prepayment Period and the Net Default Interest
for such Distribution Date and (C) the amount of Excess Interest, if any,
received during the related Prepayment Period;
(xii) The outstanding principal balance and Repurchase Price of any
Mortgage Loan purchased or repurchased pursuant to Sections 2.03(c), 3.18
or 9.01(c);
(xiii) The amount of Excess Prepayment Interest Shortfalls with respect
to such Distribution Date;
(xiv) The account balance contained in the respective Reserve Accounts
as of the related Due Date for each Mortgage Loan;
(xv) The CUSIP number for such Class of Certificates, if any;
(xvi) The amount of negative amortization on the Mortgage Loans,
created by any modification;
(xvii) The Appraisal Reduction Amounts with respect to such
Distribution Date;
(xviii) The Pass-Through Rate for such Class for the preceding Interest
Accrual Period;
(xix) Account reconciliations with respect to the immediately preceding
Distribution Date with respect to the Collection Account (giving effect to
P&I Advances, Property Advances, Servicing Fees, Trustee Fees, additional
servicing compensation, Yield Maintenance Charges, Default Interest, Net
Default Interest, and Excess Interest); and
(xx) other information reasonably requested by the Seller.
In the case of information furnished pursuant to subclauses (i), (ii),
(iv), (v), and (xi) above, the amounts shall be expressed as a dollar amount in
the aggregate for all Certificates of each applicable Class and for each Class
of Certificates with a denomination of $1,000 initial Certificate Principal
Amount or Notional Amount.
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 (except for a Class R or Class LR Certificate) a
statement containing the information set forth in subclauses (i) and (ii) above,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
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 Class R or Class LR Certificate a statement containing the
information provided pursuant to the previous paragraph aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that it provided substantially comparable information
pursuant to any requirements of the Code as from time to time in force.
Each Mortgage Loan Seller shall provide the Master Servicer with the
applicable "CSSA Setup File" prior to the first Determination Date.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall make available to the Financial Market Publisher and the
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher and the Underwriter, the following information
regarding each Mortgage Loan and any other information reasonably requested by
the Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
In addition, on or within two Business Days following each Distribution
Date, the Trustee shall make (x) certain information contained in the Monthly
Distribution Statement available to Certificateholders through its ASAP System
by Certificateholders dialing telephone number (312) 904-2200 and requesting
statement No. 368, (y) certain information regarding the Mortgage Loans
available in electronic format through its dial-up bulletin board service, by
Certificateholders dialing telephone number (714) 282-3990, and (z) certain
information regarding the Mortgage Loans accessible at the Trustee's web site at
"www.lnbabs.com".
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02(a) and 4.02(b) to the extent it
receives the necessary underlying information from the Master Servicer or the
Special Servicer and shall not be liable for any failure to deliver any thereof
on the prescribed due dates, to the extent caused by failure to receive timely
such underlying information and, if the Master Servicer is not the Special
Servicer, the Master Servicer shall not be liable for any failure of the Special
Servicer to provide such underlying information. Nothing herein shall obligate
the Trustee, the Master Servicer or the Special Servicer to violate any
applicable law prohibiting disclosure of information with respect to any
Borrower and the failure of the Trustee, the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
(c) On each Distribution Date, the Trustee shall deliver or shall cause to
be delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon request), Beneficial Owner (if known), the
Seller, each Placement Agent and each Rating Agency a copy of the Comparative
Financial Status Report, the Delinquent Loan Status Report, the Historical Loss
Estimate Report, the Historical Loan Modification Report, the REO Status Report
and the Watch List provided by the Master Servicer to the Trustee pursuant to
Section 3.13(c) and 3.13(e) on the Master Servicer Remittance Date. The
information that pertains to Specially Serviced Mortgage Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer at least one Business
Days after the related Determination Date. Absent manifest error, (i) none of
the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information supplied to it by a Borrower
or third party that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer, the Special Servicer or
the Trustee, as applicable, (ii) the Trustee shall not be responsible for the
accuracy or completeness of any information supplied to it by the Master
Servicer or Special Servicer that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or Special
Servicer, as applicable, and (iii) the Trustee shall be entitled to conclusively
rely upon the Master Servicer's reports and the Special Servicer's reports
without any duty or obligation to recompute, verify or re-evaluate any of the
amounts or other information stated therein.
The information contained in the reports in the preceding paragraph of this
Section 4.02(c) shall be made available to the Trustee electronically by the
Master Servicer in the form of the standard CSSA Data File, and the Trustee will
in lieu of mailing such reports as described in such preceding paragraph make
such reports available electronically in such form to Certificateholders and
Beneficial Owners using the media mutually agreed upon by the Trustee, each
Placement Agent and the Seller; provided, however, that the Trustee will
continue to provide Certificateholders with a written copy of such reports upon
request in the manner described in such preceding paragraph.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Master Servicer
and Special Servicer to the Seller, each Placement Agent and each Rating Agency
promptly after its receipt thereof. Upon request, the Trustee shall make such
reports available to the Certificateholders and the Special Servicer. Upon
request, the Trustee shall also make available any NOI Adjustment Worksheet for
a Mortgaged Property or REO Property in the possession of the Trustee to any
potential investor in the Certificates.
SECTION 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is a non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Seller, or (ii) an effective Form 4224 or an
acceptable substitute form or a successor form. In the event the Paying Agent or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04 REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.05(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Seller agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Master Servicer or the Trustee and
necessary to make such filing); and (vi) maintain such records relating to each
of the Upper-Tier REMIC and the Lower-Tier REMIC as may be necessary to prepare
the foregoing returns, schedules, statements or information, such records, for
federal income tax purposes, to be maintained on a calendar year and on an
accrual basis. The Holder of the largest Percentage Interest in the Class R or
Class LR Certificates shall be the tax matters person of the Upper-Tier REMIC or
the Lower-Tier REMIC, respectively, pursuant to Treasury Regulations Section
1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in
the Class R or Class LR Certificates larger than that held by any other Holder,
the first such Holder to have acquired such Class R or Class LR Certificates
shall be such tax matters person. The Trustee shall act as attorney-in-fact and
agent for the tax matters person of each of the Upper-Tier REMIC and Lower-Tier
REMIC, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Seller or the Master
Servicer which does not enable the Trustee to comply with any of clauses (i)
through (vi) of the fifth preceding sentence or which results in any action
contemplated by clauses (i) through (iii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (a) result in a taxable gain, (b) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (c) cause any of
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow any of the Trust REMICs to receive income
from the performance of services or from assets not permitted under the REMIC
Provisions to be held by a REMIC (provided, however, that the receipt of any
income expressly permitted or contemplated by the terms of this Agreement shall
not be deemed to violate this clause) and (iii) not permit the creation of any
"interests," within the meaning of the REMIC Provisions, in the Upper-Tier REMIC
other than the Regular Certificates and the Class R Certificates or in the
Lower-Tier REMIC other than the Lower-Tier Regular Interests and the Class LR
Certificates. None of the Master Servicer, the Special Servicer or the Seller
shall be responsible or liable for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Seller, the Master Servicer and the Special
Servicer shall cooperate in a timely manner with the Trustee in supplying any
information within the Seller's, the Master Servicer's or the Special Servicer's
control (other than any confidential information) that is reasonably necessary
to enable the Trustee to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans in the aggregate will prepay
in accordance with the Prepayment Assumption; (ii) none of the Master Servicer,
the Seller and the Class LR Certificateholders will exercise the right described
in Section 9.01 of this Agreement to cause early termination of the Trust Fund;
and (iii) no Mortgage Loan is repurchased by the applicable Responsible Party or
the Seller pursuant to Article II hereof.
SECTION 4.05 Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from the Collection Account in determining
the amount of Available Funds sufficient funds to pay or provide for the payment
of, and to actually pay, such tax as is legally owed by the Upper-Tier REMIC or
Lower-Tier REMIC (but such authorization shall not prevent the Trustee from
contesting, at the expense of the Trust Fund, any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Trustee is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income from any "prohibited transaction" under Code Section
860F(a) or (ii) the amount of any contribution to the Upper-Tier REMIC or
Lower-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax
(and return the balance thereof, if any, to the Lower-Tier Distribution Account
or the Upper-Tier Distribution Account, as the case may be). To the extent that
any such tax is paid to the Internal Revenue Service, the Trustee shall retain
an equal amount from future amounts otherwise distributable to the Holders of
the Class R or the Class LR Certificates, as the case may be, and shall
distribute such retained amounts to the Holders of Regular Certificates or to
the Trustee in respect of the Lower-Tier Regular Interests, as applicable, until
they are fully reimbursed and then to the Holders of the Class R Certificates or
the Class LR Certificates, as applicable. Neither the Master Servicer, the
Special Servicer nor the Trustee shall be responsible for any taxes imposed on
the Upper-Tier REMIC or Lower-Tier REMIC except to the extent such tax is
attributable to a breach of a representation or warranty of the Master Servicer,
the Special Servicer or the Trustee or an act or omission of the Master
Servicer, the Special Servicer or the Trustee in contravention of this Agreement
in both cases, provided, further, that such breach, act or omission could result
in liability under Section 6.03, in the case of the Master Servicer or Special
Servicer, as applicable, or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Master Servicer or the Special Servicer shall not be responsible for
Trustee's breaches, acts or omissions, and the Trustee shall not be responsible
for the breaches, acts or omissions of the Master Servicer or the Special
Servicer.
SECTION 4.06 Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (a) if such Mortgage Loan has been extended (other than
pursuant to Section 3.27) in accordance with the terms and conditions otherwise
set forth in this Agreement, the Monthly Payment on the Mortgage Loan prior to
such extensions, and (b) if such Mortgage Loan is not described by the preceding
clause (a) (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the Monthly Payment; provided, however,
that for purposes of calculating the amount of any P&I Advance required to be
made by the Master Servicer, the Trustee or the Fiscal Agent, notwithstanding
the amount of such Applicable Monthly Payment, interest shall be calculated at
the Net Mortgage Rate plus the Trustee Fee Rate; and provided further that for
purposes of determining the amount of any P&I Advance, the Monthly Payment shall
be as reduced pursuant to any modification of a Mortgage Loan pursuant to
Section 3.27.
(b) On the Master Servicer Remittance Date immediately preceding each
Distribution Date, the Master Servicer shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the Yield Maintenance Charges received by the
Master Servicer in the Prepayment Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in (a) the Lower-Tier
Distribution Account an amount equal to the Available Funds (other than the
amounts referred to in clause (iii) below and the amount described in
clause (iii) of the definition of "Available Funds" and;
(iii) make a P&I Advance, by deposit into the Lower-Tier Distribution
Account, in an amount equal to the sum of the Applicable Monthly Payments
for each Mortgage Loan (including the Americold Pool Loan) to the extent
such amounts were not received on such Mortgage Loan prior to 10:00 A.M.
(New York City time), on the Master Servicer Remittance Date (and therefore
are not included in the remittance described in the preceding clause (ii)).
The Master Servicer shall not be required or permitted to make an advance
for Balloon Payments, Excess Interest, Default Interest, Yield Maintenance
Charges. The amount required to be advanced in respect of Applicable Monthly
Payments on Mortgage Loans that have been subject to an Appraisal Reduction
Event will equal (i) the amount required to be advanced by the Master Servicer,
without giving effect to such Appraisal Reduction Amounts less (ii) an amount
equal to the product of (x) the amount required to be advanced by the Master
Servicer in respect to delinquent payments of interest without giving effect to
such Appraisal Reduction Amounts, and (y) a fraction, the numerator of which is
the Appraisal Reduction Amount with respect to such Mortgage Loan and the
denominator of which is the Stated Principal Balance as of the last day of the
related Collection Period.
Any amount advanced by the Master Servicer pursuant to Section 4.06(b)(iii)
shall constitute a P&I Advance for all purposes of this Agreement and the Master
Servicer shall be entitled to reimbursement (with interest at the Advance Rate)
thereof to the full extent as otherwise set forth in this Agreement.
The Trustee shall notify the Master Servicer by telephone if as of 3:00
P.M. New York City time on the Master Servicer Remittance Date, the Trustee has
not received the amount of a required P&I Advance hereunder. If as of 11:00
A.M., New York City time, on any Distribution Date the Master Servicer shall not
have made the P&I Advance required to have been made on the related Master
Servicer Remittance Date pursuant to Section 4.06(b)(iii), the Trustee shall
immediately notify the Fiscal Agent by telephone promptly confirmed in writing,
and the Trustee shall no later than 1:00 p.m., New York City time, on such
Business Day deposit into the Lower-Tier Distribution Account in immediately
available funds an amount equal to the P&I Advances otherwise required to have
been made by the Master Servicer. If the Trustee fails to make any P&I Advance
required to be made under this Section 4.06, the Fiscal Agent shall make such
P&I Advance not later than 2:00 p.m., New York City time, on such Business Day
and, thereby, the Trustee shall not be in default under this Agreement.
None of the Master Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment on any date on which a
P&I Advance is otherwise required to be made by this Section 4.06 if the Master
Servicer, the Trustee or Fiscal Agent, as applicable, determines that such
advance will be a Nonrecoverable Advance. The Master Servicer shall be required
to provide notice to the Trustee and the Fiscal Agent on or prior to the Master
Servicer Remittance Date of any such non-recoverability determination made on or
prior to such date. The Trustee and the Fiscal Agent shall be entitled to rely,
conclusively, on any determination by the Master Servicer that a P&I Advance, if
made, would be a Nonrecoverable Advance; provided, however, that if the Master
Servicer has failed to make a P&I Advance for reasons other than a determination
by the Master Servicer that such Advance would be a Nonrecoverable Advance, the
Trustee or Fiscal Agent, as applicable, shall make such advance within the time
periods required by Section 4.06(e) unless the Trustee or the Fiscal Agent, in
good faith, makes a determination prior to the times specified in Section
4.06(e) that such advance would be a Nonrecoverable Advance. The Trustee and the
Fiscal Agent, in determining whether or not an Advance previously made is, or a
proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject
to the standards applicable to the Master Servicer hereunder.
The Master Servicer, the Trustee or the Fiscal Agent, as applicable, shall
be entitled to the reimbursement of P&I Advances it makes (together with
interest thereon) to the extent permitted pursuant to Section 3.06(ii) of this
Agreement and the Master Servicer hereby covenants and agrees to promptly seek
and effect the reimbursement of such Advances from the related Borrowers to the
extent permitted by applicable law and the related Mortgage Loan.
SECTION 4.07 Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest, proceeds therefrom, the AIMCO Multifamily Pool Conditional
Debt, proceeds therefrom, and the Class Q Distribution Account, (ii) Excess
Interest, proceeds therefrom and the Excess Interest Distribution Account, and
(iii) the Reinvestment Enhancement Instrument and Reinvestment Reserve Account
shall constitute, and that the affairs of the Trust Fund (exclusive of the Trust
REMICs) shall be conducted so as to qualify such portion as, a "grantor trust"
under the Code, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall furnish or
cause to be furnished to Certificateholders and shall file or cause to be filed
with the Internal Revenue Service together with Form 1041 or such other form as
may be applicable, (i) to the Holders of the Class Q Certificates, income with
respect to their allocable share of Default Interest and the amount of any
interest paid on unreimbursed Advances to the Master Servicer, the Trustee and
the Fiscal Agent, as applicable, therefrom pursuant to Section 3.06(iii) the
amount of all collections on the AIMCO Multifamily Pool Conditional Debt, at the
time or times and in the manner required by the Code, (ii) to the Holders of the
Classes of Regular Certificates entitled thereto as set forth in Section
2.06(b), income with respect to their allocable share of Excess Interest at the
time or times and in the manner required by the Code and (iii) Goldman Group or
its designee, income or expense with respect to the Reinvestment Enhancement
Instrument and the Reinvestment Reserve Account.
SECTION 4.08 Reinvestment Enhancement Instrument; Reinvestment Reserve
Account.
(a) On the Closing Date, the Seller will deliver the Reinvestment
Enhancement Instrument to the Trustee. If for any Distribution Date occurring
after August 1, 2008 the total reinvestment income earned from the second
preceding Master Servicer Remittance Date to the Master Servicer Remittance Date
related to such Distribution Date on payments on the Mortgage Loans deposited in
the Payment Reserve Account pursuant to Section 3.05(e) is less than the Reserve
Account Reinvestment Requirement, the Trustee shall draw on the Reinvestment
Enhancement Instrument (or, if applicable, withdraw funds from the Reinvestment
Reserve Account described in Section 4.08(b)) in an amount equal to the lesser
of (i) the total amount available pursuant to the terms of the Reinvestment
Enhancement Instrument (or held in the Reinvestment Reserve Account, as the case
may be) and (ii) the amount of such shortfall, and shall deposit such amount in
the Lower-Tier Distribution Account for distribution on the Lower-Tier Regular
Interests in accordance with Section 4.01(b) on such Distribution Date.
(b) If (i) the Seller does not renew the Reinvestment Enhancement
Instrument prior to its expiration, or (ii) either Rating Agency reduces its
rating of the long-term unsecured debt obligations of ABN AMRO Bank N.V. (or of
the issuer of any letter of credit delivered to the Trustee as a substitute
Reinvestment Enhancement Instrument) below "AA-," and in either case the Seller
does not deliver to the Trustee a replacement letter of credit at least three
(3) Business Days prior to the earlier of (x) the expiration of the Reinvestment
Enhancement Instrument or (y) ten (10) Business Days after the reduction of such
rating, the Trustee will draw upon the Reinvestment Enhancement Instrument for
the full amount thereof and deposit the proceeds in the Reinvestment Reserve
Account. Any such replacement letter of credit shall be issued by an entity
whose long-term unsecured debt obligations are rated at least "AA" by each
Rating Agency, and in such amount and having such terms as would not result in a
qualification, downgrade or withdrawal of any then-current rating assigned to
any Class of Certificates, as evidenced by the written confirmation of each
Rating Agency.
Funds in the Reinvestment Reserve Account shall be invested at the
direction of Goldman Group or its designee. Any reinvestment income earned on
funds in the Reinvestment Reserve Account prior to the Distribution Date in
July, 2008 (and after such date, any reinvestment income in excess of the
Reserve Account Reinvestment Requirement) shall be remitted by the Trustee to
Goldman Group or its designee by wire transfer to an account designated by
Goldman Group or such designee as compensation for the directing of investment
of funds in the Reinvestment Reserve Account.
(c) At any time prior to July 1, 2008, the Seller or an Affiliate of the
Seller may, at its option, replace the Reinvestment Enhancement Instrument (or
any funds in lieu thereof then on deposit in the Reinvestment Reserve Account)
with (i) a letter of credit, (ii) a guaranteed investment contract, (iii)
obligations of, or obligations fully guaranteed as to payment of principal and
interest by, the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit of the United
States of America that are Permitted Investments, or (iv) other obligations or
financial instruments, in any case, issued by an entity and having such terms as
would not result in a qualification, downgrade or withdrawal of any then-current
rating assigned to any Class of Certificates, as evidenced by the written
confirmation of each Rating Agency, whereupon the Trustee will release the
Reinvestment Enhancement Instrument or funds being replaced to the Seller or
such Affiliate. Any replacement Reinvestment Enhancement Instrument delivered to
the Trustee pursuant to Section 4.08(b) shall meet the qualifications described
in the preceding sentence.
(d) If at any time prior to July, 2008, there occurs any one of the events
set forth in clauses (i), (ii) or (iii) of the definition of "Payment Reserve
Release Date," or thereafter on the Payment Reserve Release Date (after
distributions to Certificateholders are made on such date), the Reinvestment
Enhancement Instrument (or any funds held in the Reinvestment Reserve Account)
shall be promptly delivered by the Trustee to Goldman Group, together with, if
applicable, any reinvestment income on funds in the Reinvestment Reserve
Account, which shall be remitted by the Trustee to Goldman Group or its designee
in the same manner as set forth in Section 4.08(b).
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
The Certificates consist of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class X 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 Q
Certificates, the Class R Certificates, and the Class LR Certificates.
The Class A-1, Class A-2, Class A-3, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class Q, Class R and Class
LR Certificates will be substantially in the forms annexed hereto as Exhibits
A-1 through A-16 respectively. The Certificates of each Class (other than the
Class R Certificates) will be issuable in registered form only, in minimum
denominations of authorized initial Certificate Principal Amount or Notional
Amount, as applicable, as described in the succeeding table, and multiples of $1
in excess thereof. With respect to any Certificate or any beneficial interest in
a Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth
on the face thereof or (b) in the case of any Global Certificate, set forth on a
schedule attached thereto or, in the case of any beneficial interest in a Global
Certificate, the product of the Percentage Interest represented by such
beneficial interest and the amount set forth on such schedule of the related
Global Certificate, (ii) expressed in terms of initial Certificate Principal
Amount or Notional Amount, as applicable, and (iii) be in an authorized
denomination, as set forth below. With respect to the Class F, Class G, Class H,
Class J and Class K Certificates, on the Closing Date, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver (i) Rule 144A global Class F, Class G, Class H, Class J
and Class K Certificates (the "Rule 144A Global Certificates") in definitive,
fully registered form without interest coupons, (ii) Regulation S global Class
F, Class G, Class H, Class J and Class K Certificates (the "Regulation S Global
Certificates") in definitive, fully registered form without interest coupons, or
(iii) one or more, if any, Individual Certificates, in each case substantially
in the form of Exhibits A-9 through A-16 hereto, respectively. Each Certificate
will share ratably in all rights of the related Class. The Class Q, Class R and
LR Certificates will each be issuable in one or more Individual Certificates in
minimum denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
Aggregate Denominations of
all Certificates of Class
(in Initial Certificate
Class Minimum Denomination Amount or Notional Amount)
A-1 $10,000.00 $207,500,000
A-2 $10,000.00 $436,033,000
A-3 $10,000.00 $650,220,628
B $10,000.00 $102,384,000
C $10,000.00 $102,383,000
D $10,000.00 $107,038,000
E $10,000.00 $32,576,000
F $10,000.00 $83,768,000
G $10,000.00 $23,268,000
H $10,000.00 $55,846,000
J $10,000.00 $23,269,000
K $10,000.00 $37,232,197
X $5,000,000.00 $1,861,517,825
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above. The Global Certificates shall in
all respects be entitled to the same benefits under this Agreement as Individual
Certificates authenticated and delivered hereunder.
Except insofar as pertains to any Individual Certificate, the Trust Fund,
the Paying Agent and the Trustee may for all purposes (including the making of
payments due on the Global Certificates and the giving of notice to Holders
thereof) deal with the Depository as the authorized representative of the
Beneficial Owners with respect to the Global Certificates for the purposes of
exercising the rights of Certificateholders hereunder; provided, however, that,
for purposes of providing information pursuant to Section 3.20 or transmitting
communications pursuant to Section 5.05(a), to the extent that the Seller has
provided the Trustee with the names of Beneficial Owners, the Trustee shall
provide such information to such Beneficial Owners directly. The rights of
Beneficial Owners with respect to Global Certificates shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except in the limited circumstances
described below, Beneficial Owners of Public Global Certificates shall not be
entitled to physical certificates for the Public Global Certificates as to which
they are the Beneficial Owners. Requests and directions from, and votes of, the
Depository as Holder of the Global Certificates shall not be deemed inconsistent
if they are made with respect to different Beneficial Owners. Subject to the
restrictions on transfer set forth in Section 5.02 and Applicable Procedures, a
Beneficial Owner of a Private Global Certificate may request that the Seller, or
an agent thereof, cause the Depository (or any Agent Member) to notify the
Certificate Registrar and the Certificate Custodian in writing of a request for
transfer or exchange of such beneficial interest for an Individual Certificate
or Certificates. Upon receipt of such a request and payment by the related
Beneficial Owner of any attendant expenses, the Seller shall cause the issuance
and delivery of such Individual Certificates. The Certificate Registrar may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and give notice to the Depository of such
record date. Without the written consent of the Seller and the Certificate
Registrar, no Global Certificate may be transferred by the Depository except to
a successor Depository that agrees to hold the Global Certificates for the
account of the Beneficial Owners.
Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Global Certificates (i) shall be delivered by the Certificate Registrar to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and in either case
shall be registered in the name of Cede & Co. and (ii) shall bear a legend
substantially to the following effect:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar 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."
The Global Certificates may be deposited with such other Depository as the
Certificate Registrar may from time to time designate, and shall bear such
legend as may be appropriate.
If (i) the Depository advises the Trustee in writing that the Depository is
no longer willing, qualified or able properly to discharge its responsibilities
as Depository, and the Seller is unable to locate a qualified successor, (ii)
the Seller or the Trustee, at its sole option, elects to terminate the
book-entry system through the Depository with respect to all or any portion of
any Class of Certificates or (iii) after the occurrence of an Event of Default,
Beneficial Owners owning not less than a majority in Certificate Principal
Amount or Notional Amount, as applicable, of the Global Certificate for any
Class then outstanding advise the Depository through Depository Participants in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interest of the Beneficial Owner or Owners of such Global
Certificate, the Trustee shall notify the affected Beneficial Owners through the
Depository of the occurrence of such event and the availability of Individual
Certificates to such Beneficial Owner or Owners requesting them. Upon surrender
to the Trustee of Global Certificates by the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Trustee shall issue the Individual Certificates. Neither the Trustee, the Fiscal
Agent, the Certificate Registrar, the Master Servicer, the Special Servicer nor
the Seller shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions. Upon the issuance of Individual Certificates, the Trustee, the
Fiscal Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, and the Seller shall recognize the Holders of Individual Certificates
as Certificateholders hereunder.
If the Trustee, its agents or the Master Servicer or Special Servicer has
instituted or has been directed to institute any judicial proceeding in a court
to enforce the rights of the Certificateholders under the Certificates, and the
Trustee, the Master Servicer or the Special Servicer has been advised by counsel
that in connection with such proceeding it is necessary or appropriate for the
Trustee, the Master Servicer or the Special Servicer to obtain possession of the
Certificates, the Trustee, the Master Servicer or the Special Servicer may in
its sole discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class F,
Class G, Class H, Class J, Class K, Class Q, Class R or Class LR Certificate,
upon request of such a Holder, information substantially equivalent in scope to
the information currently filed by the Master Servicer and/or the Trustee with
the Commission pursuant to the Exchange Act, plus such additional information
required to be provided for securities qualifying for resales under Rule 144A
under the Act which information shall be provided on a timely basis to the
Trustee by the Master Servicer.
Each Certificate may be printed or in typewritten or similar form, and each
Certificate shall, upon original issue, be executed and authenticated by the
Trustee or the Authenticating Agent and delivered to the Seller. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-16 executed by the Authenticating Agent 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, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of the
individual participants holding beneficial interests in the Trust Fund through
the Depository. The Person in whose name any Certificate is so registered shall
be deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Certificate Registrar, the Master Servicer, the Trustee,
any Paying Agent and any agent of any of them shall not be affected by any
notice or knowledge to the contrary. An Individual Certificate is transferable
or exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
applicable requirements of this Section 5.02. Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the applicable requirements of this Section 5.02, the
Trustee shall execute and the Authenticating Agent shall duly authenticate in
the name of the designated transferee or transferees, one or more new
Certificates in Denominations of a like aggregate Denomination as the Individual
Certificate being surrendered. Such Certificates shall be delivered by the
Certificate Registrar in accordance with Section 5.02(e). Each Certificate
surrendered for registration of transfer shall be canceled and subsequently
destroyed by the Certificate Registrar. Each new Certificate issued pursuant to
this Section 5.02 shall be registered in the name of any Person as the
transferring Holder may request, subject to the applicable provisions of this
Section 5.02.
(c) In addition to the applicable provisions of this Section 5.02 and the
rules of the Depository, the exchange, transfer and registration of transfer of
Individual Certificates or beneficial interests in the Private Global
Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With respect
to the transfer and registration of transfer of an Individual Certificate
representing an interest in the Class F, Class G, Class H, Class J, Class
K, Class Q, Class R or Class LR Certificates to a transferee that takes
delivery in the form of an Individual Certificate:
(A) The Certificate Registrar shall register the
transfer of an Individual Certificate if the requested
transfer is being made by a transferee who has provided the
Certificate Registrar with an Investment Representation Letter
substantially in the form of Exhibit D-1 hereto (an
"Investment Representation Letter"), to the effect that the
transfer is being made to a Qualified Institutional Buyer in
accordance with Rule 144A;
(B) The Certificate Registrar shall register the
transfer of an Individual Certificate (other than a Residual
Certificate) pursuant to Regulation S after the expiration of
the Restricted Period if the transferor has provided the
Certificate Registrar with a Regulation S Transfer Certificate
substantially in the form of a Regulation S Transfer
Certificate; and
(C) The Certificate Registrar shall register the
transfer of an Individual Certificate (other than a Residual
Certificate) if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date
on which the Seller or any Affiliate thereof held such
Certificate, or (ii) such transferee furnishes to the
Certificate Registrar (1) an Investment Representation Letter
to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an
applicable exemption under the Act, and (2) an opinion of
counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case the Certificate Registrar shall register the transfer
of an Individual Certificate only if prior to the transfer the
transferee furnishes to the Certificate Registrar a written undertaking
by the transferor to reimburse the Trust for any costs incurred by it
in connection with the proposed transfer.
(ii) Transfers within the Private Global Certificates. Notwithstanding
any provision to the contrary herein, so long as a Private Global
Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global Certificate During
the Restricted Period. If, during the Restricted Period, a Beneficial Owner of
an interest in a Rule 144A Global Certificate wishes at any time to transfer its
beneficial interest in such Rule 144A Global Certificate to a Person who wishes
to take delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such Beneficial Owner may, in addition to
complying with all applicable rules and procedures of the Depository and CEDEL
or Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such beneficial
interest for an equivalent beneficial interest in the Regulation S Global
Certificate only upon compliance with the provisions of this Section
5.02(c)(ii)(A). Upon receipt by the Certificate Registrar at its Corporate Trust
Office of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Global Certificate to
be transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member (and
the Euroclear or CEDEL account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest, and (3)
a certificate in the form of Exhibit L hereto given by the Beneficial Owner that
is transferring such interest, the Certificate Registrar shall instruct the
Depository or the Certificate Custodian, as applicable, to reduce the
Denomination of the Rule 144A Global Certificate by the Denomination of the
beneficial interest in the Rule 144A Global Certificate to be so transferred
and, concurrently with such reduction, to increase the Denomination of the
Regulation S Global Certificate by the Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred, and to credit or cause
to be credited to the account of the Person specified in such instructions (who
shall be an Agent Member acting for or on behalf of Euroclear or CEDEL, or both,
as the case may be) a beneficial interest in the Regulation S Global Certificate
having a Denomination equal to the amount by which the Denomination of the Rule
144A Global Certificate was reduced upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global Certificate After
the Restricted Period. If, after the Restricted Period, a Beneficial Owner of an
interest in a Rule 144A Global Certificate wishes at any time to transfer its
beneficial interest in such Rule 144A Global Certificate to a Person who wishes
to take delivery thereof in the form of a beneficial interest in the Regulation
S Global Certificate, such holder may, in addition to complying with all
Applicable Procedures, transfer or cause the transfer of such beneficial
interest for an equivalent beneficial interest in the Regulation S Global
Certificate only upon compliance with the provisions of this Section
5.02(c)(ii)(B). Upon receipt by the Certificate Registrar at its Corporate Trust
Office of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Global Certificate to
be transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member
(and, in the case of a transfer pursuant to and in accordance with Regulation S,
the Euroclear or CEDEL account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest, and (3)
a certificate in the form of Exhibit M hereto given by the Beneficial Owner that
is transferring such interest, the Certificate Registrar shall instruct the
Depository or the Certificate Custodian, as applicable, to reduce the
Denomination of the Rule 144A Global Certificate by the aggregate Denomination
of the beneficial interest in the Rule 144A Global Certificate to be so
transferred and, concurrently with such reduction, to increase the Denomination
of the Regulation S Global Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Global Certificate to be so transferred,
and to credit or cause to be credited to the account of the Person specified in
such instructions (who shall be an Agent Member acting for or on behalf of
Euroclear or CEDEL, or both, as the case may be) a beneficial interest in the
Regulation S Global Certificate having a Denomination equal to the amount by
which the Denomination of the Rule 144A Global Certificate was reduced upon such
transfer.
(C) Regulation S Global Certificate to Rule 144A Global Certificate. If the
Beneficial Owner of an interest in a Regulation S Global Certificate wishes at
any time to transfer its beneficial interest in such Regulation S Global
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Rule 144A Global Certificate, such holder may, in
addition to complying with all Applicable Procedures, transfer or cause the
transfer of such beneficial interest for an equivalent beneficial interest in
the Rule 144A Global Certificate only upon compliance with the provisions of
this Section 5.02(c)(ii)(C). Upon receipt by the Certificate Registrar at its
Corporate Trust Office of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Certificate Registrar
to credit or cause to be credited to another specified Agent Member's account a
beneficial interest in the Rule 144A Global Certificate in an amount equal to
the Denomination of the beneficial interest in the Regulation S Global
Certificate to be transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of the Agent
Member to be credited with, and the account of the Agent Member (or, if such
account is held for Euroclear or CEDEL, the Euroclear or CEDEL account, as the
case may be) to be debited for such beneficial interest, and (3) with respect to
a transfer of a beneficial interest in the Regulation S Global Certificate for a
beneficial interest in the related Rule 144A Global Certificate (i) during the
Restricted Period, a certificate in the form of Exhibit N hereto given by the
Beneficial Owner, or (ii) after the Restricted Period, an Investment
Representation Letter from the transferee to the effect that such transferee is
a Qualified Institutional Buyer, the Certificate Registrar shall instruct the
Depository or the Certificate Custodian, as applicable, to reduce the
Denomination of the Regulation S Global Certificate by the Denomination of the
beneficial interest in the Regulation S Global Certificate to be transferred,
and, concurrently with such reduction, to increase the Denomination of the Rule
144A Global Certificate by the aggregate Denomination of the beneficial interest
in the Regulation S Global Certificate to be so transferred, and to credit or
cause to be credited to the account of the Person specified in such instructions
(who shall be an Agent Member acting for or on behalf of Euroclear or CEDEL, or
both, as the case may be) a beneficial interest in the Rule 144A Global
Certificate having a Denomination equal to the amount by which the Denomination
of the Regulation S Global Certificate was reduced upon such transfer.
(D) Transfers Within Regulation S Global Certificate During Restricted
Period. If, during the Restricted Period, the Beneficial Owner of an interest in
a Regulation S Global Certificate wishes at any time to transfer its beneficial
interest in such certificate to a Person who wishes to take delivery thereof in
the form of such Regulation S Global Certificate, such Beneficial Owner may
transfer or cause the transfer of such beneficial interest for an equivalent
beneficial interest in such Regulation S Global Certificate only upon compliance
with the provisions of this Section 5.02(c)(ii)(D) and all Applicable
Procedures. Upon receipt by the Certificate Registrar at its Corporate Trust
Office of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to credit or
cause to be credited to another specified Agent Member's account a beneficial
interest in such Regulation S Global Certificate in an amount equal to the
Denomination of the beneficial interest to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with, and the account
of the Agent Member (or, if such account is held for Euroclear or CEDEL, the
Euroclear or CEDEL account, as the case may be) to be debited for, such
beneficial interest and (3) a certificate in the form of Exhibit O hereto given
by the transferee, the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to credit or cause to be credited to
the account of the Person specified in such instructions (who shall be an Agent
Member acting for or on behalf of Euroclear or CEDEL, or both, as the case may
be) a beneficial interest in the Regulation S Global Certificate having a
Denomination equal to the amount specified in such instructions by which the
account to be debited was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate to a
transferee wishing to take delivery in the form of an Individual Certificate
will require the transferee to take delivery subject to the restrictions on the
transfer of such Individual Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such Individual
Certificate only as provided therein and herein. No such transfer shall be made
and the Certificate Registrar shall not register any such transfer unless such
transfer is made in accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global Certificate to
an Institutional Accredited Investor will require delivery in the form of an
Individual Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the provisions of Section 5.02(c)(i)(C).
(B) Transfers of a beneficial interest in a Private Global Certificate to a
Qualified Institutional Buyer or a Regulation S Investor wishing to take
delivery in the form of an Individual Certificate will be registered by the
Certificate Registrar only upon compliance with the provisions of Sections
5.02(c)(i)(A) and (B), respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial interest in
a Regulation S Global Certificate to an Individual Certificate pursuant to
subparagraph (B) above shall be made prior to the expiration of the Restricted
Period. Upon acceptance for exchange or transfer of a beneficial interest in a
Private Global Certificate for an Individual Certificate, as provided herein,
the Certificate Registrar shall endorse on the schedule affixed to the related
Private Global Certificate (or on a continuation of such schedule affixed to
such Private Global Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Private Global Certificate equal to the Denomination of
such Individual Certificate issued in exchange therefor or upon transfer
thereof. Unless determined otherwise by the Seller in accordance with applicable
law, an Individual Certificate issued upon transfer of or exchange for a
beneficial interest in the Private Global Certificate shall bear the Securities
Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the related Regulation S Global Certificate or
the related Rule 144A Global Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(c)(iv). Upon
receipt by the Certificate Registrar at the Corporate Trust Office of (1) the
Individual Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (2) written instructions given in accordance with
the Applicable Procedures from an Agent Member directing the Certificate
Registrar to credit or cause to be credited to another specified Agent Member's
account a beneficial interest in such Regulation S Global Certificate or such
Rule 144A Global Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred, (3) a written
order given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or CEDEL account, as the case may be) to
be credited with such beneficial interest, and (4) (x) if delivery is to be
taken in the form of a beneficial interest in the Regulation S Global
Certificate, a Regulation S Transfer Certificate from the transferor or (y) an
Investment Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken in the
form of a beneficial interest in the Rule 144A Global Certificate, the
Certificate Registrar shall cancel such Individual Certificate, execute and
deliver a new Individual Certificate for the Denomination of the Individual
Certificate not so transferred, registered in the name of the Holder, and the
Certificate Registrar shall instruct the Depository or the Certificate
Custodian, as applicable, to increase the Denomination of the Regulation S
Global Certificate or the Rule 144A Global Certificate, as the case may be, by
the Denomination of the Individual Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person specified in such
instructions (who, in the case of any increase in the Regulation S Global
Certificate during the Restricted Period, shall be an Agent Member acting for or
on behalf of Euroclear or CEDEL, or both, as the case may be) a corresponding
Denomination of the Rule 144A Global Certificate or the Regulation S Global
Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Private Global
Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private Global
Certificate for an Individual Certificate or Certificates, an exchange of an
Individual Certificate or Certificates for a beneficial interest in the Private
Global Certificate and an exchange of an Individual Certificate or Certificates
for another Individual Certificate or Certificates (in each case, whether or not
such exchange is made in anticipation of subsequent transfer, and in the case of
the Private Global Certificates, so long as the Private Global Certificates
remain outstanding and are held by or on behalf of the Depository), may be made
only in accordance with this Section 5.02 and in accordance with the rules of
the Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
opinion of counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A, Rule 144
or Regulation S under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the Holder of any Individual Certificate may transfer or exchange
the same in whole or in part (with a Denomination equal to any authorized
Denomination) by surrendering such Certificate at the Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an instrument of assignment or transfer (executed by the Holder or
its duly authorized attorney), in the case of transfer, and a written request
for exchange in the case of exchange. Following a proper request for transfer or
exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office, or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust Office or at the office of such
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate issued
in exchange for a beneficial interest in a Public Global Certificate pursuant
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors in accordance with the provisions set forth
herein. In the event that a Responsible Officer of the Certificate Registrar
becomes aware that such an Individual Certificate or beneficial interest in a
Private Global Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Individual Certificate or beneficial interest in a Private
Global Certificate to an Eligible Investor within fourteen days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) The Certificate Registrar may as a condition of the registration of any
transfer of the Class F, Class G, Class H, Class J, Class K, Class Q, Class R
and Class LR Certificates require the transferor to furnish other
certifications, legal opinions or other information (at the transferor's
expense) as it may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Act and other applicable laws.
(j) Neither the Seller, the Master Servicer, the Trustee nor the
Certificate Registrar is obligated to register or qualify the Class F, Class G,
Class H, Class J, Class K, Class Q, Class R or Class LR Certificates under the
Act or any other securities law or to take any action not otherwise required
under this Agreement to permit the transfer of such Certificates without
registration or qualification. Any such Certificateholder desiring to effect
such transfer shall, and does hereby agree to, indemnify the Seller, the Master
Servicer, the Trustee and the Certificate Registrar against any loss, liability
or expense that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(k) No transfer of any Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class Q, Class R or Class LR Certificate (each, a
"Restricted Certificate") shall be made to (i) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Keogh
plan, which is subject to Title I of ERISA or Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) that is subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or
(ii) a collective investment fund in which such Plans are invested, an insurance
company that is using assets of separate accounts or general accounts which
include assets of Plans (or which are deemed pursuant to ERISA or Similar Law to
include assets of Plans) or other Person acting on behalf of any such Plan or
using the assets of any such Plan to acquire any such Restricted Certificate,
other than (with respect to any transfer of a Restricted Certificate that is a
Subordinate Certificate) an insurance company investing the assets of its
general account under circumstances whereby the purchase and holding of such
Restricted Certificate by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and Section 4975 of the Code under
Prohibited Transaction Class Exemption 95-60. Each prospective transferee of a
Restricted Certificate that takes the form of an Individual Certificate shall
either (1) deliver to the Seller, the Certificate Registrar and the Trustee a
representation letter, substantially in the form of Exhibit D-2 hereto, stating
that the prospective transferee is not a Person referred to in (i) or (ii) above
or (2) in the event the transferee is such a Person, except in the case of a
Residual Certificate, which may not be transferred unless the transferee
represents it is not such a Person, the prospective transferee shall provide to
the Seller, the Trustee and the Certificate Registrar an opinion of counsel
which establishes to the satisfaction of the Seller, the Trustee and the
Certificate Registrar that the purchase or holding of the Restricted
Certificates by or on behalf of a Plan will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to Title I of ERISA,
Section 4975 of the Code or Similar Law, will not constitute or result in a
prohibited transaction within the meaning of ERISA or Section 4975 of the Code,
or a materially similar characterization under any Similar Law, and will not
subject the Master Servicer, the Special Servicer, the Seller, the Trustee or
the Certificate Registrar to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in this Agreement, which opinion of counsel shall
not be an expense of the Trustee, the Trust Fund, the Master Servicer, the
Special Servicer, the Certificate Registrar or the Seller. The Certificate
Registrar shall not register the transfer of an Individual Certificate that is a
Restricted Certificate unless the transferee has provided the representation
letter or opinion of counsel referred to in the preceding sentence. The
transferee of a beneficial interest in a Global Certificate that is a Restricted
Certificate shall be deemed to represent that it is not a Person or entity
referred to in (i) or (ii) above. Any transfer of a Restricted Certificate that
would result in a prohibited transaction under ERISA or Section 4975 of the
Code, or a materially similar characterization under any Similar Law, shall be
deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions and the rights of each Person acquiring any
Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be a
Permitted Transferee and shall not acquire or hold such Ownership Interest
as agent (including a broker, nominee or other middleman) on behalf of any
Person that is not a Permitted Transferee. Any such Person shall promptly
notify the Certificate Registrar of any change or impending change in its
status (or the status of the beneficial owner of such Ownership Interest)
as a Permitted Transferee. Any acquisition described in the first sentence
of this Section 5.02(l) by a Person who is not a Permitted Transferee or by
a Person who is acting as an agent of a Person who is not a Permitted
Transferee shall be void and of no effect, and the immediately preceding
owner who was a Permitted Transferee shall be restored to registered and
beneficial ownership of the Ownership Interest as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate Registrar
shall not recognize the Transfer, and such proposed Transfer shall not be
effective, without such consent with respect thereto. In connection with
any proposed Transfer of any Ownership Interest, the Certificate Registrar
shall, as a condition to such consent, (x) require delivery to it in form
and substance satisfactory to it, and the proposed transferee shall deliver
to the Certificate Registrar and to the proposed transferor an affidavit in
substantially the form attached as Exhibit C-1 (a "Transferee Affidavit")
of the proposed transferee (a) that such proposed transferee is a Permitted
Transferee and (b) stating that (i) the proposed transferee historically
has paid its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the holder of an
Ownership Interest, it may incur liabilities in excess of cash flows
generated by the residual interest, (iii) the proposed transferee intends
to pay taxes associated with holding the Ownership Interest as they become
due, (iv) the proposed transferee will not transfer the Ownership Interest
to any Person that does not provide a Transferee Affidavit or as to which
the proposed transferee has actual knowledge that such Person is not a
Permitted Transferee or is acting as an agent (including a broker, nominee
or other middleman) for a Person that is not a Permitted Transferee, and
(v) the proposed transferee expressly agrees to be bound by and to abide by
the provisions of this Section 5.02(e) and (y) other than in connection
with the initial issuance of the Class R and Class LR Certificates, require
a statement from the proposed transferor substantially in the form attached
as Exhibit C-2 (the "Transferor Letter"), that the proposed transferor has
no actual knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know that the proposed
transferee's statements in the preceding clauses (x)(B)(i) or (iii) are
false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible Officer of
the Certificate Registrar has actual knowledge that the proposed transferee
is not a Permitted Transferee, no Transfer to such proposed transferee
shall be effected and such proposed Transfer shall not be registered on the
Certificate Register; provided, however, that the Certificate Registrar
shall not be required to conduct any independent investigation to determine
whether a proposed transferee is a Permitted Transferee. Upon notice to the
Certificate Registrar that there has occurred a Transfer to any Person that
is a Disqualified Organization or an agent thereof (including a broker,
nominee, or middleman) in contravention of the foregoing restrictions, and
in any event not later than 60 days after a request for information from
the transferor of such Ownership Interest, or such agent, the Certificate
Registrar and the Trustee agree to furnish to the IRS and the transferor of
such Ownership Interest or such agent such information necessary to the
application of Section 860E(e) of the Code as may be required by the Code,
including, but not limited to, the present value of the total anticipated
excess inclusions with respect to such Class R or Class LR Certificate (or
portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the
Trustee may charge a reasonable fee for computing and furnishing such
information to the transferor or to such agent referred to above; provided,
however, that such Persons shall in no event be excused from furnishing
such information.
SECTION 5.03 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 Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Master Servicer harmless, then, in the absence
of actual knowledge by a Responsible Officer of the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, 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 Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04 Appointment of Paying Agent
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Master Servicer, to
execute and deliver to the Master Servicer and the Trustee an instrument in
which such Paying Agent shall agree with the Master Servicer and the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums have been paid to the Certificateholders or disposed of
as otherwise provided herein. The initial Paying Agent shall be the Trustee.
Except for LaSalle National Bank, as the initial Paying Agent, the Paying Agent
shall at all times be an entity having a long-term unsecured debt rating of at
least "A" by Fitch and S&P, or shall be otherwise acceptable to each Rating
Agency.
SECTION 5.05 Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Seller or the Master
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Seller and the Master Servicer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Seller or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
SECTION 5.07 Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Seller and must be a corporation organized and doing business under the laws of
the United States of America or any state, having a principal office and place
of business in a state and city acceptable to the Seller, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee and the Seller. The Trustee
may at any time terminate the agency of the Authenticating Agent by giving
written notice of termination to the Authenticating Agent and the Seller. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Seller, and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 5.07.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any compensation
paid to the Authenticating Agent shall be an unreimbursable expense of the
Trustee.
SECTION 5.08 Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch and S&P, unless the Trustee shall have
received prior written confirmation from Fitch that the appointment of such
Custodian would not cause such Rating Agency to withdraw, qualify or downgrade
any of its then-current ratings on the Certificates, and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 10.07. Any
compensation paid to the Custodian shall be an unreimbursable expense of the
Trustee. The Trustee shall serve as the initial Custodian. The Custodian, if the
Custodian is not the Trustee, shall maintain a fidelity bond in the form and
amount that are customary for securitizations similar to the securitization
evidenced by this Agreement, with the Trustee named as loss payee. The Custodian
shall be deemed to have complied with this provision if one of its respective
Affiliates has such fidelity bond coverage and, by the terms of such fidelity
bond, the coverage afforded thereunder extends to the Custodian. In addition,
the Custodian shall keep in force during the term of this Agreement a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligations hereunder in the
form and amount that are customary for securitizations similar to the
securitization evidenced by this Agreement, with the Trustee named as loss
payee. All fidelity bonds and policies of errors and omissions insurance
obtained under this Section 5.08 shall be issued by a Qualified Insurer, or by
any other insurer, that, as confirmed by each Rating Agency in writing to the
Trustee, would not in and of itself result in the downgrade, withdrawal or
qualification of any of the ratings assigned to any Class of Certificates.
ARTICLE VI
THE SELLER, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01 Liability of the Seller, the Master Servicer and the Special
Servicer.
The Seller, the Master Servicer and the Special Servicer each shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement. Each of the Master Servicer and the Special Servicer
shall indemnify the Seller, and any employee, director or officer of the Seller,
and the Trust Fund and hold the Seller and any employee, director or officer of
the Seller, and the Trust Fund harmless against any loss, liability or expense
incurred by such parties (i) in connection with any willful misconduct, bad
faith, fraud or negligence in the performance of duties of the Master Servicer
or the Special Servicer, as the case may be, or by reason of negligent disregard
of the Master Servicer's or Special Servicer's, as the case may be, obligations
or duties hereunder, or (ii) as a result of the breach by the Master Servicer or
the Special Servicer, as the case may be, of any of its representations or
warranties contained herein.
SECTION 6.02 Merger or Consolidation of the Master Servicer and the Special
Servicer.
Subject to the following paragraph, each of the Master Servicer and the
Special Servicer will keep in full effect its existence, rights and good
standing as a corporation under the laws of the State of California and will not
jeopardize its ability to do business in each jurisdiction in which the
Mortgaged Properties are located or 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.
Each of 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 it shall be a party, or any Person succeeding to its
business, shall be the successor of the Master Servicer or the Special Servicer,
as applicable, hereunder, and shall be deemed to have assumed all of the
liabilities of the Master Servicer or the Special Servicer, as applicable,
hereunder, if each of the Rating Agencies has confirmed in writing that such
merger or consolidation or transfer of assets and succession, in and of itself,
will not cause a downgrade, qualification or withdrawal of the then current
ratings assigned by such Rating Agency to any Class of Certificates.
SECTION 6.03 Limitation on Liability of the Seller, the Master Servicer and
Others.
Subject to Section 6.01, neither the Seller, the Master Servicer, the
Special Servicer nor any of the directors, officers, employees or agents of the
Seller or 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 Seller or the Master Servicer or the Special Servicer or
any such Person against liability which would be imposed by reason of (i) any
breach of warranty or representation, or other specific liability provided
herein, with respect to such respective party or (ii) any willful misconduct,
bad faith, fraud or negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder with respect to such
respective party. The Seller, the Master Servicer, the Special Servicer and any
director, officer, employee or agent of the Seller, the Master Servicer or the
Special Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any appropriate Person respecting
any matters arising hereunder. The Seller, the Master Servicer, the Special
Servicer and any director, officer, employee or agent of the Seller or the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with, or relating to, this Agreement or the Certificates, other than any loss,
liability or expense (including legal fees and expenses) (i) incurred by reason
of willful misconduct, bad faith, fraud or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations or duties
hereunder, in each case by the Person being indemnified; (ii) imposed by any
taxing authority if such loss, liability or expense is not specifically
reimbursable pursuant to the terms of this Agreement or (iii) with respect to
any such party, resulting from the breach by such party of any of its
representations or warranties contained herein. Neither the Seller nor the
Master Servicer nor the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and in its opinion does not expose it to
any expense or liability; provided, however, that the Seller or the Master
Servicer or the Special Servicer may in its discretion undertake any such action
related to its obligations hereunder which it may deem necessary or desirable
with 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 and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Seller, the Master
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
from the Collection Account as provided in Section 3.06 of this Agreement.
SECTION 6.04 Limitation on Resignation of the Master Servicer or Special
Servicer.
(a) Each of the Master Servicer and each Special Servicer may assign its
respective rights and delegate its respective duties and obligations under this
Agreement with the prior written consent of the Seller, provided that: (i) the
purchaser or transferee accepting such assignment and delegation (a) shall be
satisfactory to the Trustee and to the Seller, (b) shall be an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans or a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.02, and (c) shall execute and
deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to 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 from and after the date of such agreement;
(ii) as confirmed by a letter from each Rating Agency delivered to the Trustee,
each Rating Agency's rating or ratings of the Regular Certificates in effect
immediately prior to such assignment, sale, transfer or delegation will not be
qualified, downgraded or withdrawn as a result of such assignment, sale,
transfer or delegation; (iii) the Master Servicer or the Special Servicer shall
not be released from its obligations under this Agreement that arose prior to
the effective date of such assignment and delegation under this Section 6.04;
(iv) the rate at which the Servicing Fee or Special Servicing Compensation, as
applicable (or any component thereof) is calculated shall not exceed the rate
then in effect; and (v) the resigning Master Servicer or Special Servicer, as
applicable, shall be responsible for the reasonable costs and expenses of each
other party hereto and the Rating Agencies in connection with such transfer.
Upon acceptance of such assignment and delegation, the purchaser or transferee
shall be the successor Master Servicer or Special Servicer, as applicable,
hereunder.
(b) Except as provided in this Section 6.04, the Master Servicer and the
Special Servicer shall not resign from their respective obligations and duties
hereby imposed on them except upon determination that such duties hereunder are
no longer permissible under applicable law. Any such determination permitting
the resignation of the Master Servicer or the Special Servicer, as applicable,
shall be evidenced by an Opinion of Counsel (obtained at the resigning Master
Servicer's or Special Servicer's expense) to such effect delivered to the
Trustee.
No resignation or removal of the Master Servicer or the Special Servicer as
contemplated herein shall become effective until the Trustee or a successor
Master Servicer or Special Servicer shall have assumed the Master Servicer's or
the Special Servicer's responsibilities, duties, liabilities and obligations
hereunder. If no successor Master Servicer or Special Servicer can be obtained
to perform such obligations for the same compensation to which the terminated
Master Servicer or Special Servicer would have been entitled, additional amounts
payable to such successor Master Servicer or Special Servicer shall be treated
as a shortfall resulting in Realized Losses.
SECTION 6.05 Rights of the Seller and the Trustee in Respect of the Master
Servicer and Special Servicer. The Master Servicer and the Special Servicer
shall afford the Seller, the Trustee and the Rating Agencies, upon reasonable
notice, during normal business hours access to all records maintained by it in
respect of its rights and obligations hereunder and access to its officers
responsible for such obligations. Upon request, the Master Servicer and the
Special Servicer shall furnish to the Seller, the Master Servicer, the Special
Servicer and the Trustee its most recent publicly available annual financial
statements and such other information in its possession regarding its business,
affairs, property and condition, financial or otherwise as is reasonably
relevant to the performance of the obligations hereunder of the Master Servicer
and the Special Servicer. The Seller may, but is not obligated to, enforce the
obligations of the Master Servicer or the Special Servicer hereunder which are
in default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or exercise its
rights hereunder, provided that the Master Servicer and the Special Servicer
shall not be relieved of any of its obligations hereunder by virtue of such
performance by the Seller or its designee. In the event the Seller or its
designee undertakes any such action it will be reimbursed by the Trust Fund from
the Collection Account as provided in Section 3.06 and Section 6.03(a) hereof to
the extent not recoverable from the Master Servicer or Special Servicer, as
applicable. Neither the Seller nor the Trustee and neither the Master Servicer,
with respect to the Special Servicer, nor the Special Servicer, with respect to
the Master Servicer, shall have any responsibility or liability for any action
or failure to act by the Master Servicer or the Special Servicer and neither
such Person is obligated to monitor or supervise the performance of the Master
Servicer or the Special Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
SECTION 6.06 Master Servicer or Special Servicer as Owner of a Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Master Servicer or the Special
Servicer or an Affiliate thereof, except as otherwise expressly provided herein.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder or
Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's good faith judgment, violate the
Servicing Standard, and (ii) if taken, might nonetheless, in the Master
Servicer's or the Special Servicer's good faith judgment, be considered by other
Persons to violate the Servicing Standard, the Master Servicer or the Special
Servicer may seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (i) states that it is delivered
pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and
(iii) describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate)
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have consented in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice, such action shall
be deemed to comply with the Servicing Standard. The Trustee shall be entitled
to reimbursement from the Master Servicer or the Special Servicer, as
applicable, of the reasonable expenses of the Trustee incurred pursuant to this
paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, except in
the case of unusual circumstances.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Master Servicer Event of Default", wherever used herein, means any one
of the following events:
(i) any failure by the Master Servicer to remit to the Collection
Account or any failure by the Master Servicer to remit to the Trustee for
deposit into the Lower-Tier Distribution Account, Payment Reserve Account,
Excess Interest Distribution Account, Interest Reserve Account or Class Q
Distribution Account, any amount required to be so remitted by the Master
Servicer (including a P&I Advance) pursuant to, and at the time specified
by the terms of this Agreement, which failure, with respect to the
Lower-Tier Distribution Account or Payment Reserve Account, is not remedied
by 11:00 a.m., New York City time, on the related Distribution Date with
interest thereon as provided in Section 3.06; or
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any of its other covenants or agreements,
or the material breach of its representations or warranties on the part of
the Master Servicer contained in this Agreement, which continues unremedied
for a period of 30 days after the date on which written notice of such
failure or breach, requiring the same to be remedied, shall have been given
to the Master Servicer by the Seller or the Trustee, or to the Master
Servicer, the Seller and the Trustee by the Holders of Certificates
evidencing Percentage Interests of at least 25% of any Class affected
thereby; provided that if such default is not capable of being cured within
such 30 day period and the Master Servicer is diligently pursuing such
cure, the Master Servicer shall be entitled to an additional 30 day period;
provided further that the failure of the Master Servicer to perform any
covenant or agreement contained herein (other than as provided in clause
(i) above) as a result of an inconsistency between this Agreement and any
Loan Document shall not be a Master Servicer Event of Default hereunder; or
(iii) 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 or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer, or of or relating to all or substantially
all of its property; or
(v) the Master 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 insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) the Master Servicer shall fail to make any Property Advance
required to be made by the Master Servicer hereunder (whether or not the
Trustee or the Fiscal Agent makes such Property Advance), which failure
continues unremedied for a period of fifteen (15) days after the date on
which such Advance was first due (or for any shorter period as may be
required, if applicable, to avoid any lapse in insurance coverage required
under any Mortgage or this Agreement with respect to any Mortgaged Property
or to avoid any foreclosure or similar action with respect to any Mortgaged
Property by reason of a failure to pay real estate taxes and assessments);
provided, however, that in the event the Trustee or the Fiscal Agent makes
a required Property Advance pursuant to Section 3.22(b) due to the Master
Servicer's failure to make a required Property Advance, such Event of
Default shall occur immediately upon the making of such Property Advance by
the Trustee or the Fiscal Agent; or
(vii) the Trustee shall receive written notice from Fitch that the
continuation of the Master Servicer in such capacity would result (or the
continuation in such capacity of the Master Servicer has resulted) in a
downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates;
then, and in each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Master Servicer.
In the event that the Master Servicer is also the Special Servicer and the
Master Servicer is terminated as provided in this Section 7.01, the Master
Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein, means any
one of the following events:
(i) any failure by the Special Servicer to remit to the Collection
Account or an REO Account any amount required to be so deposited by the
Special Servicer pursuant to, and at the time specified, and in accordance
with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or agreements,
or the material breach of any representations or warranties on the part of
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 or breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Master Servicer, the Seller, the
Trustee or to the Special Servicer, the Master Servicer, the Seller and the
Trustee by the Holders of Certificates evidencing Percentage Interests of
at least 25% of any Class affected thereby; or
(iii) 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 or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(iv) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Special Servicer, or of or relating to all or substantially
all of its property; or
(v) 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 insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations;
(vi) the Special Servicer shall fail to make any Property Advance
required to be made by the Special Servicer hereunder (whether or not the
Trustee or the Fiscal Agent makes such Property Advance), which failure
continues unremedied for a period of fifteen (15) days after the date on
which such Advance was first due (or for any shorter period as may be
required, if applicable, to avoid any lapse in insurance coverage required
under any Mortgage or this Agreement with respect to any Mortgaged Property
or to avoid any foreclosure or similar action with respect to any Mortgaged
Property by reason of a failure to pay real estate taxes and assessments);
provided, however, that in the event the Trustee or the Fiscal Agent makes
a required Property Advance pursuant to Section 3.22(b) due to the Special
Servicer's failure to make a required Property Advance, such Event of
Default shall occur immediately upon the making of such Property Advance by
the Trustee or the Fiscal Agent; or
(vii) the Trustee shall receive written notice from Fitch that the
continuation of the Special Servicer in such capacity would result (or the
continuation in such capacity of the Special Servicer has resulted) in a
downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee shall, by notice in
writing to the Master Servicer or the Special Servicer, as the case may be (the
"Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights the Master Servicer or Special Servicer may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
or after the receipt by the Terminated Party of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
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 Terminated 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, in the event it is terminated pursuant to
this Section 7.01, to promptly (and in any event no later than ten Business Days
subsequent to such notice) provide, at its own expense, the Trustee with all
documents and records requested by the Trustee to enable the Trustee to assume
its functions hereunder, and to cooperate with the Trustee and the successor to
its responsibilities hereunder in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Master Servicer or successor Special Servicer or the
Trustee, as applicable, 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 Collection Account, any REO Account or Lock-Box Account
shall thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Trustee or such successor Master Servicer or Special
Servicer (which may include the Trustee), as applicable, all documents and
records reasonably requested by it, such documents and records to be provided in
such form as the Trustee or such successor Master Servicer or Special Servicer
shall reasonably request (including electromagnetic form), to enable it to
assume the Master Servicer's or Special Servicer's function hereunder. All
reasonable costs and expenses of the Trustee or the successor Master Servicer or
successor Special Servicer incurred in connection with transferring the Mortgage
Files to the successor Master Servicer or Special Servicer and amending this
Agreement to reflect such succession as successor Master Servicer or successor
Special Servicer pursuant to this Section 7.01 shall be paid by the predecessor
Master Servicer or the Special Servicer, as applicable, upon presentation of
reasonable documentation of such costs and expenses. If the predecessor Master
Servicer or Special Servicer (as the case may be) has not reimbursed the Trustee
or the successor Master Servicer or Special Servicer for such expenses within 90
days after the presentation of reasonable documentation, such expense shall be
reimbursed by the Trust Fund; provided that the Terminated Party shall not
thereby be relieved of its liability for such expenses.
SECTION 7.02 Trustee to Act; Appointment of Successor. On and after the
time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall be its successor in all
respects in its capacity as Master Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and, except as
provided herein, shall be subject to all the responsibilities, duties,
limitations on liability and liabilities relating thereto and arising thereafter
placed on the Master Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that (i) the Trustee shall have no responsibilities,
duties, liabilities or obligations with respect to any act or omission of the
Master Servicer or Special Servicer and (ii) any failure to perform, or delay in
performing, such duties or responsibilities caused by the Terminated Party's
failure to provide, or delay in providing, records, tapes, disks, information or
monies shall not be considered a default by such successor hereunder. The
Trustee, as successor Master Servicer or successor Special Servicer, shall be
indemnified to the full extent provided the Master Servicer or Special Servicer,
as applicable, under this Agreement prior to the Master Servicer's or the
Special Servicer's termination. The appointment of a successor Master Servicer
or successor Special Servicer shall not affect any liability of the predecessor
Master Servicer or Special Servicer which may have arisen prior to its
termination as Master Servicer or Special Servicer. The Trustee shall not be
liable for any of the representations and warranties of the Master Servicer or
Special Servicer herein or in any related document or agreement, for any acts or
omissions of the predecessor Master Servicer or predecessor Special Servicer or
for any losses incurred in respect of any Permitted Investment by the Master
Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee as
successor Master Servicer or successor Special Servicer shall be entitled to the
Servicing Fee or Special Servicing Compensation, as applicable, and all funds
relating to the Mortgage Loans that accrue after the date of the Trustee's
succession to which the Master Servicer or Special Servicer would have been
entitled if the Master Servicer or Special Servicer, as applicable, had
continued to act hereunder. In the event any Advances made by the Master
Servicer, the Special Servicer and the Trustee or the Fiscal Agent shall at any
time be outstanding, or any amounts of interest thereon shall be accrued and
unpaid, all amounts available to repay Advances and interest hereunder shall be
applied entirely to the Advances made by the Trustee or the Fiscal Agent (and
the accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. 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 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if the Rating Agencies do not provide
written confirmation that the succession of the Trustee, as Master Servicer or
Special Servicer, as applicable, will not cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings assigned to any Class of Certificates as evidenced in writing
by each Rating Agency, as the successor to the Master Servicer or Special
Servicer, as applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or
Special Servicer hereunder shall be effective until the assumption by such
successor of all the Master Servicer's or Special Servicer's responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer (or the Special Servicer if the Special Servicer is also the
Master Servicer) hereunder, unless the Trustee shall be prohibited by law from
so acting, the Trustee shall act in such capacity as herein above provided.
Pending the appointment of a successor to the Special Servicer, unless the
Master Servicer is also the Special Servicer, the Master Servicer shall act in
such capacity. In connection with such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder, additional amounts shall be paid to such
successor and such amounts in excess of that permitted the Terminated Party
shall be treated as Realized Losses. The Seller, the Trustee, the Master
Servicer or Special Servicer 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 termination pursuant to Section 7.01 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04 Other Remedies of Trustee. During the continuance of any
Master Servicer Event of Default or a Special Servicer Event of Default when the
Master Servicer is also serving as Special Servicer, so long as such Master
Servicer Event of Default or Special Servicer Event of Default, if applicable,
shall not have been remedied, the Trustee, in addition to the rights specified
in Section 7.01, shall have the right, in its own name as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filing of proofs of claim and debt in connection therewith).
In such event, the legal fees, expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Trustee shall be entitled to be reimbursed therefor from the
Collection Account as provided in Section 3.06. Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Master Servicer Event of Default or Special Servicer Event of
Default, if applicable.
SECTION 7.05 Waiver of Past Events of Default; Termination. The Holders of
Certificates evidencing not less than 66-2/3% of the aggregate Voting Rights of
the Certificates may, on behalf of all Holders of Certificates, waive any
default by the Master Servicer or Special Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required deposits (including, with respect to the Master Servicer, P&I Advances)
to or payments from the Collection Account or the Lower-Tier Distribution
Account or in remitting payments as received, in each case in accordance with
this Agreement. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon. Any
costs and expenses incurred by the Trustee in connection with such default and
prior to such waiver shall be reimbursed by the Master Servicer or the Special
Servicer, as applicable, promptly upon demand therefor and if not reimbursed to
the Trustee within 90 days of such demand, from the Trust Fund; provided, that
the Trust Fund shall be reimbursed by the Master Servicer or the Special
Servicer, as applicable, to the extent such amounts are reimbursed to the
Trustee from the Trust Fund.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge 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
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.04, shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any 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, shall examine them to determine whether they
conform on their face to the requirements of this Agreement to the extent
specifically set forth herein; provided, however, that, the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument provided to it
hereunder. If any such instrument is found not to conform on its face to the
requirements of this Agreement in a material manner, the Trustee shall request a
corrected instrument, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, and after the
curing or waiver 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 resolutions, certificates,
statements, reports, opinions, documents, orders or other instruments
furnished to the Trustee that conform on their face to the requirements of
this Agreement without responsibility for investigating the contents
thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(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
greater than 50% of the Percentage Interests (or such other percentage as
is specified herein) of each affected Class, or of the aggregate Voting
Rights of the Certificates, 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;
(iv) Neither the Trustee nor any of its respective directors, officers,
employees, agents or control persons shall be responsible for any act or
omission of any Custodian, Paying Agent or Certificate Registrar that is
not an Affiliate of the Trustee and that is selected other than by the
Trustee, performed or omitted in compliance with any custodial or other
agreement, or any act or omission of the Master Servicer, Special Servicer,
the Seller or any other third Person, including, without limitation, in
connection with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its
respective duties as Trustee in accordance with this Agreement (and, if it
does, all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund), and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account, unless such legal action
arises out of the negligence or bad faith of the Trustee or any breach of
an obligation, representation, warranty or covenant of the Trustee
contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of which the
Trustee may be required to act, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed to
have actual knowledge of the Master Servicer's or the Special Servicer's
failure to provide scheduled reports, certificates and statements when and
as required to be delivered to the Trustee pursuant to this Agreement.
None of the provisions contained in this Agreement shall require either the
Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend or risk its
own funds, or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if in
the opinion of the Trustee or the Fiscal Agent, respectively, the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer or the
Special Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Master Servicer or the Special Servicer in accordance
with the terms of this Agreement. Neither the Trustee nor the Fiscal Agent shall
be required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and neither the Trustee nor
the Fiscal Agent shall be liable for any loss on any investment of funds
pursuant to this Agreement (other than any funds invested with it in its
commercial capacity).
(d) The Trustee represents that it will use reasonable commercial efforts
to cure (by August 1999) any deficiencies with regards to the manipulation or
calculation of dates beyond December 31, 1999 in the internally maintained
computer systems used by the Trustee in the conduct of its trust business which
would materially and adversely affect its ability to perform its obligations
under this agreement. The Trustee further represents that it will use reasonable
commercial efforts to obtain reasonable assurances from each third party vendor
of licensed computer software systems used by the Trustee in the conduct of its
trust business that such vendors shall use reasonable commercial efforts to cure
any deficiencies with regards to the manipulation or calculation of dates beyond
December 31, 1999 in such systems which would materially and adversely affect
the ability of the Trustee to perform its obligations under this agreement.
SECTION 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
(ii) and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) (A) The Trustee shall be under no obligation 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;
(B) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act; and
(C) provided, that subject to the foregoing clause (A), nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured or waived) of
which a Responsible Officer of the Trustee has actual knowledge, 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
person would exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers, employees,
Affiliates, agents or "control" persons within the meaning of the Act shall
be personally liable for any action taken, suffered or omitted by it in
good faith and reasonably believed by the Trustee to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(v) 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 25% (or such other percentage
as is specified herein) of the Percentage Interests of any affected Class;
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.
The reasonable expense of every such investigation shall be paid by the
Master Servicer or the Special Servicer, as applicable, if an Event of
Default shall have occurred and be continuing relating to the Master
Servicer, or the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys but shall not be relieved of its obligations hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause any of the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
any of the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Seller pursuant to this Agreement or the eligibility of any Mortgage Loan
for purposes of this Agreement.
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein and in the Certificates shall not be taken as the
statements of the Trustee, the Fiscal Agent, the Master Servicer, or the Special
Servicer, and the Trustee, the Fiscal Agent, the Master Servicer and Special
Servicer assume no responsibility for their correctness. The Trustee, the Fiscal
Agent, the Master Servicer and Special Servicer make no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates or any prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan or related
document. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage, any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement. Without limiting the foregoing, neither the Trustee nor the Fiscal
Agent shall be liable or responsible for: the existence, condition and ownership
of any Mortgaged Property; the existence of any hazard or other insurance
thereon (other than if the Trustee shall assume the duties of the Master
Servicer or the Special Servicer pursuant to Section 7.02) or the enforceability
thereof; the existence of any Mortgage Loan or the contents of the related
Mortgage File on any computer or other record thereof (other than if the Trustee
shall assume the duties of the Master Servicer or the Special Servicer pursuant
to Section 7.02); the validity of the assignment of any Mortgage Loan to the
Trust Fund or of any intervening assignment; the completeness of any Mortgage
File (except for its review thereof pursuant to Section 2.02); the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer pursuant to Section 7.02);
the compliance by the Seller, the Master Servicer or the Special Servicer with
any warranty or representation made under this Agreement or in any related
document or the accuracy of any such warranty or representation prior to the
Trustee's receipt of notice or other discovery of any non-compliance therewith
or any breach thereof; any investment of monies by or at the direction of the
Master Servicer or any loss resulting therefrom (other than if the Trustee shall
assume the duties of the Master Servicer or the Special Servicer pursuant to
Section 7.02), it being understood that the Trustee shall remain responsible for
any Trust Fund property that it may hold in its individual capacity; the acts or
omissions of any of the Seller, the Master Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of the Master Servicer or
Special Servicer pursuant to Section 7.02) or any sub-Master Servicer or any
Borrower; any action of the Master Servicer or Special Servicer (other than if
the Trustee shall assume the duties of the Master Servicer or the Special
Servicer pursuant to Section 7.02) or any sub-Master Servicer taken in the name
of the Trustee, except to the extent such action is taken at the express written
direction of the Trustee; the failure of the Master Servicer or the Special
Servicer or any sub-Master Servicer to act or perform any duties required of it
on behalf of the Trust Fund or the Trustee hereunder; or any action by or
omission of the Trustee taken at the instruction of the Master Servicer or the
Special Servicer (other than if the Trustee shall assume the duties of the
Master Servicer or the Special Servicer pursuant to Section 7.02) unless the
taking of such action is not permitted by the express terms of this Agreement;
provided, however, that the foregoing shall not relieve the Trustee of its
obligation to perform its duties as specifically set forth in this Agreement.
Neither the Trustee nor the Fiscal Agent shall be accountable for the use or
application by the Seller, the Master Servicer or the Special Servicer of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Seller, the Master Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Lower-Tier Distribution Account,
Upper-Tier Distribution Account, Class Q Distribution Account, Excess Interest
Distribution Account, Lock Box Account, Reserve Accounts, Interest Reserve
Account or any other account maintained by or on behalf of the Master Servicer
or the Special Servicer, other than any funds held by the Trustee or Fiscal
Agent, as applicable. Neither the Trustee nor the Fiscal Agent shall have
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder (unless the Trustee shall have
become the successor Master Servicer) or to record this Agreement. In making any
calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee shall assume that such payment is so
permitted unless a Responsible Officer of the Trustee has actual knowledge, or
receives an Opinion of Counsel (at the expense of the Person asserting the
impermissibility) to the effect that such payment is not permitted by applicable
law.
SECTION 8.04 Trustee May Own Certificates. The Trustee, the Fiscal Agent
and any agent of the Trustee or Fiscal Agent in its individual capacity or any
other capacity may become the owner or pledgee of Certificates, and may deal
with the Seller and the Master Servicer in banking transactions, with the same
rights it would have if it were not Trustee, Fiscal Agent or such agent.
SECTION 8.05 Payment of Trustee Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee 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, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses" as described in clause (d) below, except any such
expense, disbursement or advance as may arise from its negligence or bad faith;
provided, however, that, subject to the last paragraph of Section 8.01, neither
the Trustee nor the Fiscal Agent shall refuse to perform any of its duties
hereunder solely as a result of the failure to be paid the Trustee Fee and the
Trustee's expenses or any sums due to the Fiscal Agent.
The Master Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable out-of-pocket expenses incurred or made
by the Trustee in connection with any transfer of the servicing responsibilities
of the Master Servicer or the Special Servicer, respectively, hereunder,
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, in accordance with any of the provisions of
this Agreement (and including the reasonable fees and expenses and disbursements
of its counsel and all other persons not regularly in its employ), except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of the Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Seller, the Master Servicer and the Special Servicer (each, an "Indemnifying
Party") shall indemnify the Trustee and the Fiscal Agent and their respective
Affiliates and each of the directors, officers, employees and agents of the
Trustee, the Fiscal Agent and their respective Affiliates (each, an "Indemnified
Party"), and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Master Servicer,
any agent of the Master Servicer or sub-Master Servicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement, or are
unanticipated expenses (as defined below), other than (i) those resulting from
the negligence, fraud, bad faith or willful misconduct of the Indemnified Party
and (ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses" shall include any
fees, expenses and disbursement of any separate trustee or co-trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date, and the losses, liabilities,
damages, claims or incremental expenses (including reasonable attorneys' fees)
incurred or advanced by an Indemnified Party in connection with (i) a default
under any Mortgage Loan and (ii) any litigation arising out of this Agreement,
including, without limitation, under Section 2.03, Section 3.10, the third
paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Indemnified Parties under this Section 8.05(d) shall be
senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Master Servicer, the Special Servicer, the Paying Agent, the
Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$50,000,000 and a rating on its unsecured long-term debt of at least "BBB" by
Fitch and S&P (or at any time when there is no Fiscal Agent appointed and acting
hereunder or any such Fiscal Agent so appointed has a rating on its long-term
unsecured debt that is lower than "AA" by Fitch and S&P the rating on the
unsecured long term debt of the Trustee must be at least "AA" by Fitch and S&P
or meet different standards provided that each Rating Agency shall have
confirmed in writing that such different standards would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates) and subject to supervision or examination by
federal or state authority and shall not be an Affiliate of the Master Servicer
(except during any period when the Trustee has assumed the duties of the Master
Servicer pursuant to Section 7.02); provided that, notwithstanding that the
long-term unsecured debt of LaSalle National Bank and ABN AMRO Bank N.V. are not
rated by Fitch, LaSalle National Bank shall not fail to qualify as Trustee
solely by virtue of the lack of such ratings until such time as Fitch shall
notify the Trustee, the Master Servicer and the Special Servicer in writing that
LaSalle National Bank is no longer exempt from the foregoing rating requirements
imposed by this sentence. If a corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for purposes of this Section
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In the event that the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of a REMIC (other than a tax corresponding
to a tax imposed under the REMIC Provisions) the Trustee shall elect either to
(i) resign immediately in the manner and with the effect specified in Section
8.07, (ii) pay such tax from its own funds and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. 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.
SECTION 8.07 Resignation and Removal of the Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Seller, the Master Servicer and each Rating Agency. Upon
such notice of resignation, the Fiscal Agent shall also be deemed to have been
removed and, accordingly, the Master Servicer shall promptly appoint a successor
Trustee, the appointment of which would not, as evidenced in writing by the
Rating Agencies (other than S&P), in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates, and a successor Fiscal Agent (if necessary to satisfy the
requirements contained in Section 8.06), the appointment of which, if the
successor Trustee is not rated by each Rating Agency in one of its two highest
long-term debt rating categories, would not, as evidenced in writing, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates, by written instrument, in triplicate,
which instrument shall be delivered to the resigning Trustee, with a copy to the
Fiscal Agent deemed removed, and the successor Trustee and successor Fiscal
Agent. If no successor Trustee and successor Fiscal Agent shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee and the Fiscal Agent may petition
any court of competent jurisdiction for the appointment of a successor Trustee
and successor Fiscal Agent. The Trustee will bear all reasonable costs and
expenses of each other party hereto and each Rating Agency in connection with
such resignation.
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 Seller or 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, or upon
a confirmation in writing by Fitch that not terminating the Trustee, or the
Fiscal Agent, as applicable, would, in and of itself, cause the then-current
rating assigned to any Class of Certificates to be qualified, withdrawn or
downgraded, then the Seller may remove the Trustee and the Fiscal Agent and
promptly appoint a successor Trustee and successor Fiscal Agent by written
instrument, which shall be delivered to the Trustee and the Fiscal Agent so
removed and to the successor Trustee and the successor Fiscal Agent. The Holders
of Certificates entitled to more than 50% of the Voting Rights of all of the
Certificates may at any time remove the Trustee and the Fiscal Agent (and any
removal of the Trustee shall be deemed to be a removal also of the Fiscal Agent)
and appoint a successor Trustee and, if necessary, successor Fiscal Agent by
written instrument or instruments, in seven originals, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Seller, one complete set to the Master Servicer, one
complete set to the Trustee so removed, one complete set to the Fiscal Agent
deemed removed, one complete set to the successor Trustee so appointed and one
complete set to any successor Fiscal Agent so appointed.
In the event of removal of the Trustee, the Fiscal Agent shall be deemed to
have been removed.
In the event that the Trustee or Fiscal Agent is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and appointment
of a successor Trustee and, if such trustee is not rated by each Rating Agency
in one of its two highest long-term debt rating categories, a successor Fiscal
Agent pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee and, if
necessary, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Seller,
the Master Servicer and to the predecessor Trustee and predecessor Fiscal Agent,
as the case may be, instruments accepting their appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee and predecessor
Fiscal Agent shall become effective and such successor Trustee and successor
Fiscal Agent, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee or Fiscal
Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing by each Rating Agency,
result in a downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates. The predecessor Trustee shall deliver to the
successor Trustee all Mortgage Files and related documents and statements held
by it hereunder, and the Seller and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor Trustee all
such rights, powers, duties and obligations. 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.
The Fiscal Agent may not resign except (i) in the event of the resignation
or removal of the Trustee, (ii) upon determination that it may no longer perform
such obligations and duties under applicable law, or (iii) upon written
confirmation from the Rating Agencies (other than S&P) that such resignation,
without the appointment of a successor Fiscal Agent, will not in and of itself
result in a downgrade qualification or withdrawal of the then current rating of
any Class of Certificates. Any such determination in (ii) above is required to
be evidenced by an opinion of counsel to such effect delivered to the Seller and
the Trustee. No resignation or removal of the Fiscal Agent shall become
effective until a successor fiscal agent acceptable to Fitch, as evidenced in
writing (which may be Trustee) shall have assumed the Fiscal Agent's obligations
and duties under this Agreement.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Seller shall mail notice of the succession of such Trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Seller fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Seller.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall satisfy the eligibility requirements set forth in Section 8.06
hereof.
SECTION 8.09 Merger or Consolidation of Trustee. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation 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. 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 Seller 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 (at the expense of
the Trustee) 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 Seller and the
Trustee may consider necessary or desirable. If the Seller shall not be in
existence or shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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.
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 (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), 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 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 solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Seller and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, or if the separate trustee or co-trustee is an
employee of the Trustee, the Trustee acting alone may accept the resignation of
or remove any separate trustee or co-trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of, affecting the liability of, or affording protection
to, such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed on the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
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.
SECTION 8.11 Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial Fiscal
Agent hereunder for the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent hereunder. The Fiscal Agent undertakes
to perform such duties and only such duties as are specifically set forth
hereunder.
(b) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent failure to act or its own willful
misfeasance or for a breach of a representation or warranty contained herein;
provided, however, that (i) the duties and obligations of the Fiscal Agent shall
be determined solely by the express provisions of this Agreement, the Fiscal
Agent shall not be liable except for the performance of such duties and
obligations, no implied covenants or obligations shall be read into this
Agreement against the Fiscal Agent and, in the absence of bad faith on the part
of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Fiscal Agent by the Seller, the Master
Servicer, the Special Servicer or the Trustee and which on their face do not
contradict the requirements of this Agreement, and (ii) the provisions of clause
(ii) of Section 8.01(c) shall apply to the Fiscal Agent.
SECTION 8.12 Controlling Certificateholders and Controlling Class
Representative.
(a) Each Controlling Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Trustee and to notify the Trustee of the transfer of any Certificate of the
Controlling Class, the selection of a Controlling Class Representative or the
resignation or removal thereof. Any Certificateholder at any time appointed
Controlling Class Representative is hereby deemed to have agreed by virtue of
its purchase of a Certificate to notify the Trustee when such Certificateholder
is appointed Controlling Class Representative and when it is removed or resigns.
Upon receipt of such notice, the Trustee will notify the Special Servicer of the
identity of the Controlling Class Representative and any resignation or removal
thereof.
(b) Within thirty (30) days of the Closing Date, the Trustee shall notify
the Certificateholders of the Controlling Class that they may select a
Controlling Class Representative for purposes of Section 3.27 of this Agreement.
Such notice shall set forth the process established by the Trustee in order to
select a Controlling Class Representative.
(c) Once a Controlling Class Representative has been selected pursuant to
clause (b) above, each of the Master Servicer, the Special Servicer, the Seller,
the Trustee and each other Certificateholder (or Beneficial Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Certificateholders of the Controlling Class, by Certificate Principal Amount, or
such Controlling Class Representative shall have notified the Trustee and each
other Certificateholder of the Controlling Class, in writing, of the resignation
of such Controlling Class Representative or the selection of a new Controlling
Class Representative. Upon the resignation of a Controlling Class
Representative, the Trustee shall request the Certificateholders of the
Controlling Class to select a new Controlling Class Representative.
(d) If at any time a Book-Entry Certificate belongs to the Controlling
Class, the Trustee shall notify the related Beneficial Owner or Beneficial
Owners (through the Seller, unless the Trustee shall have been previously
provided with the name and address of such Beneficial Owner or Beneficial
Owners) of such event and shall request that it be informed of any change in the
identity of the related Beneficial Owner from time to time.
(e) Until it receives notice to the contrary each of the Master Servicer,
the Special Servicer and the Trustee shall be entitled to rely on the most
recent notification with respect to the identity of the Certificateholders of
the Controlling Class and the Controlling Class Representative.
(f) The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for error in judgment;
provided, however, that the Controlling Class Representative will not be
protected against 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 or duties.
(g) By its acceptance of a Certificate, each Certificateholder shall be
deemed to have confirmed its understanding that the Controlling Class
Representative may take actions that favor the interest of one or more Classes
of the Certificates over other Classes of the Certificates, and that the
Controlling Class Representative may have special relationships and interests
that conflict with those of holders of some Classes of the Certificate; and,
absent willful misfeasance, bad faith or negligence on the part of the
Controlling Class Representative, each Certificateholder shall be deemed to have
agreed to take no action against the Controlling Class Representative or any of
its officers, directors, employees, principals or agents as a result of such a
special relationship or conflict.
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
SECTION 9.01 Termination; Optional Mortgage Loan Purchase.
(a) The respective obligations and responsibilities of the Master Servicer,
the Special Servicer, the Seller, the Trustee and the Fiscal Agent created
hereby with respect to the Certificates (other than the obligation to make
certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately following the occurrence of
the last action required to be taken by the Trustee pursuant to this Article IX
on the Termination Date; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of twenty-one years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the United Kingdom, living on the date
hereof.
(b) The Upper-Tier REMIC and the Lower-Tier REMIC shall be terminated and
the assets of the Trust Fund with respect to the Trust REMICs shall be sold or
otherwise disposed of in connection therewith, only pursuant to a "plan of
complete liquidation" within the meaning of Code Section 860F(a)(4)(A) providing
for the actions contemplated by the provisions hereof pursuant to which the
applicable Notice of Termination is given and requiring that the assets of each
of the Upper-Tier REMIC and the Lower-Tier REMIC shall be sold for cash and that
each such REMIC shall terminate on a Distribution Date occurring not more than
90 days following the date of adoption of the plan of complete liquidation. For
purposes of this Section 9.01(b), the Notice of Termination given pursuant to
Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Master Servicer in the final federal income tax returns of the Upper-Tier
REMIC and the Lower-Tier REMIC. Notwithstanding the termination of the REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the REMICs and applicable income tax or information returns for the
Grantor Trust for the period ending with such termination, and shall maintain
books and records with respect to the REMICs and the Grantor Trust for the
period for which it maintains its own tax returns or other reasonable period.
(c) The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as of the last day of
the month preceding such Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last day of the month
preceding such Distribution Date, as determined by an
Independent appraiser acceptable to the Master Servicer as of
the date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal
balance of each such Mortgage Loan (including for this purpose
any Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of the
Interest Accrual Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property
Advances, and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in each
case to the extent permitted hereby with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and all
other property acquired in respect of any Mortgage Loan on the last day of
the month preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not more than 30
days prior to the last day of the month preceding such Distribution Date,
together with one month's interest thereon at the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to this Agreement or by the
Trust Fund in connection with the purchase of the Mortgage Loans and other
assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne by the
party exercising its purchase rights hereunder. The Trustee shall be entitled to
rely conclusively on any determination made by an Independent appraiser pursuant
to this subsection (c).
Any Mortgage Loan purchased under the circumstances described in this
subsection (c) will be purchased subject to a continuing right of (i) the
holders of the Class Q Certificates to receive from the purchaser(s), from time
to time, payments corresponding to Default Interest with respect to such
Mortgage Loan, and payments corresponding to the AIMCO Multifamily Pool
Conditional Debt, and (ii) the holders of the Classes of Certificates entitled
to receive the Excess Interest with respect to such Mortgage Loan, as specified
in Section 2.06(b), to receive from the purchaser(s), from time to time,
payments corresponding to Excess Interest with respect to such Mortgage Loan.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests, notwithstanding that such distribution may be insufficient to
distribute in full an amount equal to the remaining Certificate Principal Amount
of each such Certificate, Lower-Tier Regular Interest, together with amounts
required to be distributed on such Distribution Date pursuant to Section 4.01 or
(ii) if no such Regular Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Lower-Tier Distribution Account, and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, in either case,
following the later to occur of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (b) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund, (iii) to the holders of the Class Q Certificates, of any amount
remaining in the Class Q Distribution Account, including any remaining amounts
attributable to the AIMCO Multifamily Pool Conditional Debt, (iv) to Goldman
Group or its designee and remaining amounts attributable to the Reinvestment
Enhancement Instrument or the Reinvestment Reserve Account, and (v) to the
holders of Certificates entitled to receive Excess Interest, as provided in
Section 2.06(b), of any amount remaining in the Excess Interest Distribution
Account.
(e) Notice of any termination of the Trust Fund pursuant to this Section
9.01 shall be mailed by the Trustee to affected Certificateholders with a copy
to the Master Servicer and each Rating Agency at their addresses shown in the
Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be
made only upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for
any reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with this Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Counterparts. 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 10.02 Limitation on Rights of Certificateholders. 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.
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 person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right 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 such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
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. 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 of any Class shall have any right in any manner whatever 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 10.04 Notices. All demands, notices and communications hereunder
shall be in writing, shall be deemed to have been given upon receipt (except
that notices to Holders Class Q, Class R and Class LR Certificates or Holders of
any Class of Certificates no longer held through a Depository and instead held
in registered, definitive form shall be deemed to have been given upon being
sent by first class mail, postage prepaid) as follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Securities Group,
GS Mortgage Securities
Corporation II, Series 1998-C1
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services Group,
GS Mortgage Securities
Corporation II, Series 1998-C1
If to the Seller, to:
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Attention: Marvin J. Kabatznick
With a copy to:
Jay Strauss, Esq.
If to the Master Servicer or the Special Servicer, to:
EVP
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Attention: Servicing Manager
With a copy to:
CMBS Manager
GMAC Commercial Mortgage Corporation
150 South Wacker, Suite 2800
Chicago, Illinois 60606
Attention: Gary Severyn
If to the Underwriter, to:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Rolf Edwards
With a copy to:
Jay Strauss, Esq.
If to GSMC, to:
Goldman Sachs Mortgage Company
85 Broad Street
New York, New York 10004
Attention: Rolf Edwards
With a copy to:
Jay Strauss, Esq.
If to ACLI, to:
AMRESCO Capital Limited, Inc.
700 North Pearl Street
Suite 2400, LB 342
Dallas, Texas 75201-7424
Attention: Ed Hurley
If to ACMFLP, to:
AMRESCO Capital Limited, Inc.
700 North Pearl Street
Suite 2400, LB 342
Dallas, Texas 75201-7424
Attention: Ed Hurley
If to Falcon, to:
Falcon Financial, LLC
2015 West Main Street
Stamford, Connecticut 06902
Attention: David Karp
If to any Certificateholder, to:
the address set forth in the Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05 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, to the extent permitted by applicable law,
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 10.06 Notice to the Seller and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Seller and each Rating Agency with respect to each of the following of which
a Responsible Officer of the Trustee 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 merger, consolidation, resignation or termination of the
Master Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(c);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the Payment
Reserve Account, the Reinvestment Reserve Account, the Lower-Tier
Distribution Account or the Upper-Tier Distribution Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master Servicer;
(viii) any change in the lien priority of a Mortgage Loan;
(ix) any new lease of an anchor or a termination of an anchor lease at
a retail Mortgaged Property; and
(x) any material damage to a Mortgaged Property.
(b) The Master Servicer (or the Trustee with respect to item (iv) below)
shall promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) upon request, a copy of each operating and other financial
statements, rent rolls, occupancy reports, and sales reports to the extent
such information is required to be delivered under a Mortgage Loan, in each
case to the extent collected pursuant to Section 3.03;
(iv) each report to Certificateholders described in Section 4.02 and
Section 3.20; and
(v) upon request, each inspection report prepared in connection with
any inspection conducted pursuant to Section 3.19.
(c) The Master Servicer shall furnish each Rating Agency with such
information with respect to the Trust Fund, any Mortgaged Property, a Borrower
and a non-performing or Specially Serviced Mortgage Loan as such Rating Agency
shall reasonably request and which the Master Servicer can reasonably obtain.
The Rating Agencies shall not be charged any fee or expense in connection
therewith.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch IBCA, Inc.
One State Street Plaza, 31st Floor
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
Attention: Commercial Mortgage Surveillance Group
or in each case to such other address as any Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.07 Amendment. This Agreement or any Custodial Agreement may be
amended from time to time by the Seller, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein or therein that may be defective or inconsistent with any
other provisions herein or therein, (iii) to amend any provision thereof to the
extent necessary or desirable to maintain the status of each of the Upper-Tier
REMIC and Lower-Tier REMIC as a REMIC, or to prevent the imposition of any
material state or local taxes; (iv) to amend or supplement any provisions herein
or therein that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment, or as
evidenced by confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, (v) to amend or
supplement any provisions therein to the extent necessary or desirable to
maintain the ratings assigned to each of the Classes of Certificates by each
Rating Agency or (vi) to make any other provisions with respect to matters or
questions arising under this Agreement, which shall not be inconsistent with the
provisions of this Agreement and will not result in a downgrade, qualification
or withdrawal of the then current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend this Agreement to modify, eliminate or add to
any of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust REMIC as two separate REMICs or of the Grantor Trust
as a grantor trust, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Seller, the Master Servicer, the Special Servicer, the Trustee and
the Fiscal Agent with the consent of the Holders of Certificates representing
not less than 66-2/3% of the Percentage Interests of each Class of Certificates
affected by the amendment 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 Certificateholders; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments on any Certificate without the consent of all the holders of all
Certificates representing all Percentage Interests of the Class or Classes
affected thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under this
Agreement, without the consent of the Holders of all Certificates
representing all of the Percentage Interest of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to make a
P&I Advance or Property Advance, as applicable, without the consent of the
Holders of all Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby.
In the event that neither the Seller nor any successor thereto, if any, is
in existence, any amendment under this Section 10.07 shall be effective with the
consent of the Trustee, the Fiscal Agent, and the Master Servicer, in writing,
and to the extent required by this Section, the Certificateholders. Promptly
after the execution of any amendment, the Master Servicer shall forward to the
Trustee and the Trustee shall furnish written notification of the substance of
such amendment to each Certificateholder and each Rating Agency. It shall not be
necessary for the consent of Certificateholders under this Section 10.07 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The method 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; provided, however, that such method shall always be
by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Master Servicer and/or the Trustee, the Master Servicer and the Trustee
shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i) or (ii) of the first sentence of this Section,
then at the expense of the Trust Fund), to the effect that such amendment will
not cause any of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding, will not cause a tax
to be imposed on the Trust Fund under the REMIC Provisions (other than a tax at
the highest marginal corporate tax rate on net income from foreclosure property)
and will not cause the Grantor Trust to fail to qualify as a grantor trust.
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Master
Servicer may request and shall be entitled to rely conclusively upon an Opinion
of Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in clause (i), (ii), (iii)
or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08 Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Seller to the Trustee on behalf
of Certificateholders as contemplated by this Agreement and the sale by the
Seller of the Certificates be, and be treated for all purposes as, a sale by the
Seller of the undivided portion of the beneficial interest in the Trust Fund
represented by the Certificates. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Trust Fund by the Seller
to the Trustee to secure a debt or other obligation of the Seller. However, in
the event that, notwithstanding the intent of the parties, the Trust Fund is
held to continue to be property of the Seller then (a) this Agreement shall also
be deemed to be a security agreement under applicable law; (b) the transfer of
the Trust Fund provided for herein shall be deemed to be a grant by the Seller
to the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Seller's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, Reinvestment Enhancement Instrument,
Reinvestment Reserve Account, Lower-Tier Distribution Account, Upper-Tier
Distribution Account, Class Q Distribution Account, Payment Reserve Account,
Excess Interest Distribution Account, whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee (or the
Custodian on its behalf) of Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the Delaware and Illinois Uniform
Commercial Code; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Trustee pursuant to any provision hereof shall
also be deemed to be an assignment of any security interest created hereby. The
Seller shall, and upon the request of the Master Servicer, the Trustee shall, to
the extent consistent with this Agreement (and at the expense of the Trust
Fund), take such actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement. It is the intent of the parties that such a security interest would
be effective whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09 No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any Certificateholder
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder.
Without limiting the foregoing, the parties to this Agreement specifically
state that no Borrower, property manager or other party to a Mortgage Loan is an
intended third-party beneficiary of this Agreement.
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the Seller, the Master Servicer, the Special Servicer,
the Responsible Parties, the Trustee and the Fiscal Agent have caused their
names to be signed hereto by their respective officers thereunto duly authorized
all as of the day and year first above written.
GS MORTGAGE SECURITIES CORPORATION II,
as Seller
By: _________________________________
Name:
Title:
GOLDMAN SACHS MORTGAGE COMPANY,
as Responsible Party
By: Goldman Sachs Real Estate Funding Corp.,
its General Partner
By: _____________________________________
Name:
Title:
FALCON FINANCIAL, LLC,
as Responsible Party
By: __________________________________________
Name:
Title:
AMRESCO CAPITAL LIMITED, INC.,
as Responsible Party
By: __________________________________________
Name:
Title:
AMRESCO COMMERCIAL MORTGAGE FUNDING, L.P.,
as Responsible Party
By: AMRESCO Capital Conduit Corporation,
its General Partner
By: ____________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Master Servicer and as Special Servicer
By: __________________________________________
Name:
Title:
LASALLE NATIONAL BANK, as Trustee,
Custodian and Certificate Registrar
By: __________________________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By: _________________________________________
Name:
Title:
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF _________ )
) ss:
COUNTY OF _________ )
On this ___ day of ______________, 1998, before me, the undersigned, a
Notary Public in and for the State of _________, duly commissioned and sworn,
personally appeared _________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that he/she resides at
_________________________; that he/she is the _________ of
________________________, the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
NOTARY PUBLIC in and for the State of _________.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
EXHIBIT A-1
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS A-1
Pass-Through Rate: 6.060000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class A-1 Certificates: Date: [_____] 2028
$207,500,000
CUSIP: 36228C CJ 0 Initial Certificate Principal
Amount of this Certificate:
$[_______________]
ISIN: US36228CCJ09
Common Code: 9198245
No.: [_______]
This certifies that [___________________________] is the registered owner
of a beneficial ownership interest in a Trust Fund, including the distributions
to be made with respect to the Class A-1 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial properties and held in trust by the Trustee and
serviced by the Master Servicer. The Trust Fund was created, and the Mortgage
Loans are to be serviced, pursuant to the Pooling Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents to
the terms, provisions and conditions of the Pooling Agreement and is bound
thereby. Also issued under the Pooling Agreement are the Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class Q, Class R and Class LR Certificates (together with the Class A-1
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-1
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class A-1 Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1 Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: _______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-1 Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
_______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1
Certificate of the entire Percentage Interest represented by the within Class
A-1 Certificates to the above-named Assignee(s) and to deliver such Class A-1
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number _____________________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: ______________________________
[Please print or type name(s)]
______________________________
Title:
______________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
CERTAIN OTHER ASSETS.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS A-2
Pass-Through Rate: 6.6200%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class A-2 Certificates: Date: October 2028
$436,033,000
CUSIP: 36228C CK7 Initial Certificate Principal
Certificate: $[______________]
ISIN: US36228CCK71
Common Code: 9198296
No.: [_______]
This certifies that [_________________________________] is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class A-2 Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial properties and held in trust by the Trustee
and serviced by the Master Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling Agreement and is
bound thereby. Also issued under the Pooling Agreement are the Class A-1, Class
A-3, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class Q, Class R and Class LR Certificates (together with the
Class A-2 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-2
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class A-2 Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2 Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By: ________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
______________ (please print or typewrite name(s) and address(es), including
postal zip code(s) of assignee(s)) ("Assignee(s)") the entire Percentage
Interest represented by the within Class A-2 Certificate and hereby authorize(s)
the registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ______________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _____________________________________
[Please print or type name(s)]
_____________________________________
Title:
_____________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
CERTAIN OTHER ASSETS.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS A-3
Pass-Through Rate: 6.1350%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class A-3 Certificates: Date: October 2028
$650,220,628
CUSIP: 36228C CL 5 Initial Certificate Principal
Amount of this Certificate:
$[_______________]
ISIN: USU36228CCL54
Common Code: 9198300
No.: [_______]
This certifies that [__________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
Q, Class R and Class LR Certificates (together with the Class A-3 Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-3
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class A-3 Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-3 Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: ____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
_______________ (please print or typewrite name(s) and address(es), including
postal zip code(s) of assignee(s)) ("Assignee(s)") the entire Percentage
Interest represented by the within Class A-3 Certificate and hereby authorize(s)
the registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3
Certificate of the entire Percentage Interest represented by the within Class
A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number __________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: __________________________________
[Please print or type name(s)]
__________________________________
Title:
__________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS X
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL AMOUNT OF
THE CLASS X CERTIFICATES IS EQUAL TO THE AGGREGATE OF THE PRINCIPAL AMOUNTS OF
THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J AND CLASS K COMPONENTS, AS SET FORTH IN THE POOLING
AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CLASS X CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AT AN ISSUE PRICE OF
___________% OF THE INITIAL NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON,
AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH
FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS
SUPPLEMENT DATED OCTOBER 26, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1,
CLASS A-2, CLASS A-3, CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF THIS CERTIFICATE IS APPROXIMATELY
__________%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY ________%; AND (III) THE AMOUNT OF OID FOR THE SHORT
FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 THROUGH NOVEMBER 12, 1998), COMPUTED
USING THE EXACT METHOD, AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT HEREOF,
IS APPROXIMATELY ___________%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS X
Pass-Through Rate: As determined in
accordance with the Pooling Agreement.
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Notional Amount of the Scheduled Final Distribution
Class X Certificates: $1,861,517,825 Date: October 2028
CUSIP: 36228C CM 3 Initial Notional Amount of
this Certificate: $[_________]
ISIN: US36228CCM38
Common Code: 9198318
No.: [_______]
This certifies that [_________________________] is the registered owner of
a beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class X
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
interest then distributable, if any, allocable to the Class X Certificates for
such Distribution Date, all as more fully described in the Pooling Agreement.
Holders of this Certificate may be entitled to Yield Maintenance Charges, as
provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class X Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class X Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class X Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By: ________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
____________________________________________________ (please print or typewrite
name(s) and address(es), including postal zip code(s) of assignee(s))
("Assignee(s)") the entire Percentage Interest represented by the within Class X
Certificate and hereby authorize(s) the registration of transfer of such
interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class X
Certificate of the entire Percentage Interest represented by the within Class X
Certificates to the above-named Assignee(s) and to deliver such Class X
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ______________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _____________________________________
[Please print or type name(s)]
_____________________________________
Title:
_____________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS B CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS B
Pass-Through Rate: 6.9700%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Amount Scheduled Final Distribution
of the Class B Certificates: $102,384,000 Date: October 2028
CUSIP: 36228C CN 1 Initial Certificate Principal
Amount of this Certificate:
$[_______________]
ISIN: US36228CCN11
Common Code: 9198326
No.: [_______]
This certifies that [___________________________________________] is the
registered owner of a beneficial ownership interest in a Trust Fund, including
the distributions to be made with respect to the Class B Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial properties and held in trust by the Trustee
and serviced by the Master Servicer. The Trust Fund was created, and the
Mortgage Loans are to be serviced, pursuant to the Pooling Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling Agreement and is
bound thereby. Also issued under the Pooling Agreement are the Class A-1, Class
A-2, Class A-3, Class X, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class Q, Class R and Class LR Certificates (together with the
Class B Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class B
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class B Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
__________________ (please print or typewrite name(s) and address(es), including
postal zip code(s) of assignee(s)) ("Assignee(s)") the entire Percentage
Interest represented by the within Class B Certificate and hereby authorize(s)
the registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B
Certificate of the entire Percentage Interest represented by the within Class B
Certificates to the above-named Assignee(s) and to deliver such Class B
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ____________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _____________________________________
[Please print or type name(s)]
_____________________________________
Title:
_____________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS C
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL
TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE PASS-THROUGH
RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME
TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED
CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER THAN ARD LOANS,
WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT DATES, WHICH
ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
2.50069444%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18, 1998) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS C
Pass-Through Rate: 6.910000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the of the Class C Certificates: Date: October 2028
$102,383,000
Initial Certificate Principal
Amount of this Certificate:
$[_______________]
CUSIP: 36228C CP6
ISIN: US36228CCP68
Common Code: 9198342
No.: [_______]
This certifies that [__________________] is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class C
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class C
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class C Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class C Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class C Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
_______________ (please print or typewrite name(s) and address(es), including
postal zip code(s) of assignee(s)) ("Assignee(s)") the entire Percentage
Interest represented by the within Class C Certificate and hereby authorize(s)
the registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class C
Certificate of the entire Percentage Interest represented by the within Class C
Certificates to the above-named Assignee(s) and to deliver such Class C
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number _____________________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:______________________________________
[Please print or type name(s)]
______________________________________
Title:
______________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS D
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS D CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL
TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE PASS-THROUGH
RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME
TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED
CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER THAN ARD LOANS,
WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT DATES, WHICH
ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
2.50069444%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18, 1998) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS D
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class D Certificates: Date: October 2028
$107,038,000
CUSIP: 36228C CQ 4 Initial Certificate Principal
Amount of this Certificate:
$[_______________]
ISIN: US36228CCQ42
Common Code: 9198377
No.: [_______]
This certifies that [______________] is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial properties and held in trust by the Trustee and serviced by
the Master Servicer. The Trust Fund was created, and the Mortgage Loans are to
be serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class E, Class F, Class G, Class H, Class J, Class K,
Class Q, Class R, Class LR Certificates (together with the Class D Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling
Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class D
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to Class D Certificates is the calendar month
preceding the month in which such Distribution Date occurs and is assumed to
consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class D Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class D Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
__________________________________________ (please print or typewrite name(s)
and address(es), including postal zip code(s) of assignee(s)) ("Assignee(s)")
the entire Percentage Interest represented by the within Class D Certificate and
hereby authorize(s) the registration of transfer of such interest to Assignee(s)
on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class D
Certificate of the entire Percentage Interest represented by the within Class D
Certificates to the above-named Assignee(s) and to deliver such Class D
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: ________________________________________
[Please print or type name(s)]
________________________________________
Title:
________________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS E
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL AMOUNT OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
AMOUNT SET FORTH BELOW.
THIS CLASS E CERTIFICATE IS SUBORDINATE TO CERTAIN OTHER CLASSES OF CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
____________% OF ITS INITIAL PRINCIPAL BALANCE, INCLUDING ACCRUED INTEREST, AND
A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE
(PLUS 8 DAYS OF INTEREST AT THE PASS-THROUGH RATE HEREON), IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A)
THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING
THE PREPAYMENT ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT DATED
OCTOBER 26, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2, CLASS
A-3, CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES) USED TO PRICE
THIS CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN
ACCORDANCE WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
__________%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY ________%; AND (III) THE AMOUNT OF OID FOR THE SHORT
FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 THROUGH NOVEMBER 12, 1998), COMPUTED
USING THE EXACT METHOD, AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE
THEREOF, IS APPROXIMATELY ___________%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS E
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class E Certificates: Date: October 2028
$32,576,000
CUSIP: 36228C CR2 Initial Certificate Principal
Amount of this Certificate:
$[_______________]
ISIN: US36228CCR25
Common Code: 9198385
No.: [_______]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class E Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class F, Class G, Class H, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class E
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling Agreement are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class E
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Yield
Maintenance Charges, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class E Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class E Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class E Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
___________________________________________________ (please print or typewrite
name(s) and address(es), including postal zip code(s) of assignee(s))
("Assignee(s)") the entire Percentage Interest represented by the within Class E
Certificate and hereby authorize(s) the registration of transfer of such
interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class E
Certificate of the entire Percentage Interest represented by the within Class E
Certificates to the above-named Assignee(s) and to deliver such Class E
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _________________________________________________________________
________________________________________________________________________________
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ____________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _______________________________________
[Please print or type name(s)]
_______________________________________
Title:
_______________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS F
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A
QIB, OR BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED INVESTOR
MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.]
[If Regulation S Global Certificate, then insert: THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL
ISSUE DATE OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[If Restricted Certificates issued to an Institutional Accredited Investor which
is not a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act, then insert: AS PROVIDED IN THE POOLING AGREEMENT, ANY HOLDER OF
THIS CERTIFICATE THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR MAY NOT EXCHANGE
THIS CERTIFICATE FOR INTERESTS IN A GLOBAL CERTIFICATE.]
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES AS AND TO THE EXTENT
SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
_____________% OF ITS INITIAL PRINCIPAL BALANCE, INCLUDING ACCRUED INTEREST, AND
A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE
(PLUS 8 DAYS OF INTEREST AT THE PASS-THROUGH RATE HEREON), IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A)
THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING
THE PREPAYMENT ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT DATED
OCTOBER 26, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2, CLASS
A-3, CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES) USED TO PRICE
THIS CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN
ACCORDANCE WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
_____________%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY _______%; AND (III) THE AMOUNT OF OID FOR
THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 THROUGH NOVEMBER 12, 1998),
COMPUTED USING THE EXACT METHOD, AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE THEREOF, IS APPROXIMATELY ____________%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS F
Pass-Through Rate: 6.000000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class F Certificates: Date: October 2028
$83,768,000
Certificate Principal Amount
CUSIP: [for 144A: 36228C CS 0] of this Certificate:
[for Reg. S: U03911 AP 6] $[_______________]
[for Reg. D: 36228C CX 9]
Common Code: 9201025
No.: [_______]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class F Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class G, Class H, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class F
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class F
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class F Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration Of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, or to prevent
the imposition of any material state or local taxes on the Trust Fund; (iv) to
amend or supplement any provisions in either of such agreements that shall not
adversely affect in any material respect the interests of any Certificateholder
not consenting thereto, as evidenced in writing by an Opinion of Counsel, at the
expense of the party requesting such amendment, or as evidenced by confirmation
in writing from each Rating Agency that such amendment or supplement will not
result in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates; (v) to amend or supplement any provisions in
either of such agreements to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; or (vi) to make any other provisions with respect to matters or
questions arising under the Pooling Agreement, which shall not be inconsistent
with the provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller, or the Controlling
Class Representative and the Seller, or the Controlling Class Representative,
the Seller and the Master Servicer, respectively, through the Trustee of its
intention to do so in writing at least 30 days prior to the Early Termination
Notice Date and neither the Seller nor the Master Servicer as the case may be,
terminates the Trust Fund as described above within such 30-day period. All
costs and expenses incurred by any and all parties to the Pooling Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to Section 9.01(c) of the Pooling
Agreement shall be borne by the party exercising its purchase rights hereunder.
The Trustee shall be entitled to rely conclusively on any determination made by
an Independent appraiser pursuant to Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class F Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: _____________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: _____________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
___________________________________________________ (please print or typewrite
name(s) and address(es), including postal zip code(s) of assignee(s))
("Assignee(s)") the entire Percentage Interest represented by the within Class F
Certificate and hereby authorize(s) the registration of transfer of such
interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class F
Certificate of the entire Percentage Interest represented by the within Class F
Certificates to the above-named Assignee(s) and to deliver such Class F
Certificate to the following address:
Date: _________________
________________________________________
Signature by or on behalf of Assignor(s)
________________________________________
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number ______________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By: _________________________________
[Please print or type name(s)]
_________________________________
Title:
_________________________________
Taxpayer Identification Number
<PAGE>
EXHIBIT A-10
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS G
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A
QIB, OR BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED INVESTOR
MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.]
[If Regulation S Global Certificate, then insert: THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL
ISSUE DATE OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[If Restricted Certificates issued to an Institutional Accredited Investor which
is not a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act, then insert: AS PROVIDED IN THE POOLING AGREEMENT, ANY HOLDER OF
THIS CERTIFICATE THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR MAY NOT EXCHANGE
THIS CERTIFICATE FOR INTERESTS IN A GLOBAL CERTIFICATE.]
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES AS AND TO
THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
_____%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER
THAN ARD LOANS, WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT
DATES, WHICH ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY _____%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18,
1998) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS G
Pass-Through Rate: 6.0000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution Date:
Amount of the Class G Certificates: October 2028
$23,268,000
CUSIP: [for 144A: 36228C CT 8] Initial Certificate Principal
[for Reg. S: U03911 AQ 4] Amount of this Certificate:
[for Reg. D: 36228C CY 7] $[_______________]
ISIN: USU03911AQ47
Common Code: 9201076
No.: [___]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class G Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class H, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class G
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended, and certain other assets.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class G
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class G Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class G Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: ______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class G Certificates referred to in the Pooling Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: ____________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class G Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class G
Certificate of the entire Percentage Interest represented by the within Class G
Certificates to the above-named Assignee(s) and to deliver such Class G
Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to __________________________ for the account of
__________________________ account number _____________________________________.
This information is provided by ______________________________, the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-11
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS H
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A
QIB, OR BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED INVESTOR
MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.]
[If Regulation S Global Certificate, then insert: THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL
ISSUE DATE OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[If Restricted Certificates issued to an Institutional Accredited Investor which
is not a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act, then insert: AS PROVIDED IN THE POOLING AGREEMENT, ANY HOLDER OF
THIS CERTIFICATE THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR MAY NOT EXCHANGE
THIS CERTIFICATE FOR INTERESTS IN A GLOBAL CERTIFICATE.]
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES AS
AND TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
_____%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER
THAN ARD LOANS, WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT
DATES, WHICH ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY _____%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18,
1998) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS H
Pass-Through Rate: 6.0000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Amount Scheduled Final Distribution
of the Class H Certificates: Date: October 2028
$55,846,000
CUSIP: [for 144A: 36228C CU 5] Initial Certificate Principal
[for Reg. S: U03911 AR 2] Amount of this Certificate:
[for Reg. D: 36228C CZ 4] $[_______________]
ISIN: USU03911AR20
Common Code: 9201114
No.: [___]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class H Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class J, Class K,
Class Q, Class R and Class LR Certificates (together with the Class H
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class H
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class H Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class H Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class H Certificates referred to in the Pooling
Agreement. Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Authenticating
Agent
By:___________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class H
Certificate of the entire Percentage Interest represented by the within Class H
Certificates to the above-named Assignee(s) and to deliver such Class H
Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ______________________ for the account of __________________________
account number ____________________________.
This information is provided by ________________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-12
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS J
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A
QIB, OR BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED INVESTOR
MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.]
[If Regulation S Global Certificate, then insert: THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL
ISSUE DATE OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[If Restricted Certificates issued to an Institutional Accredited Investor which
is not a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act, then insert: AS PROVIDED IN THE POOLING AGREEMENT, ANY HOLDER OF
THIS CERTIFICATE THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR MAY NOT EXCHANGE
THIS CERTIFICATE FOR INTERESTS IN A GLOBAL CERTIFICATE.]
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED TO
HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
_____%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER
THAN ARD LOANS, WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT
DATES, WHICH ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY _____%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18,
1998) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS J
Pass-Through Rate: 6.0000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Amount Scheduled Final Distribution
of the Class J Certificates: Date: October 2028
$23,269,000
CUSIP: [for 144A: 36228C CV 3] Initial Certificate Principal Amount of this
[for Reg. S: U03911 AS 0] Certificate: $[_______________]
[for Reg. D: 36228C DA 8]
ISIN: USU03911AS03
Common Code: 9201149
No.: [___]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class J Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class K,
Class Q, Class R and Class LR Certificates (together with the Class J
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement. Pursuant to the terms of the Pooling
Agreement, the Trustee, or the Paying Agent on behalf of the Trustee, will
distribute (other than the final distribution on any Certificate), on the 18th
day of each month (or, if such 18th day is not a Business Day, the next
succeeding Business Day), commencing on November 18, 1998 (each such date, a
"Distribution Date"), to the Person in whose name this Certificate is registered
as of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class J Certificates for such Distribution Date, all as
more fully described in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to Class J Certificates is the calendar month
preceding the month in which such Distribution Date occurs and is assumed to
consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class J Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class J Certificates referred to in the Pooling Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Authenticating
Agent
By:___________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
______________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire Percentage Interest
represented by the within Class J Certificate and hereby authorize(s) the
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class J
Certificate of the entire Percentage Interest represented by the within Class J
Certificates to the above-named Assignee(s) and to deliver such Class J
Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ______________________ for the account of __________________________
account number ____________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-13
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS K
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR 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 INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A
QIB, OR BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED INVESTOR
MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.]
[If Regulation S Global Certificate, then insert: THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE
ORIGINAL ISSUE DATE OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[If Restricted Certificates issued to an Institutional Accredited Investor which
is not a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act, then insert: AS PROVIDED IN THE POOLING AGREEMENT, ANY HOLDER OF
THIS CERTIFICATE THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR MAY NOT EXCHANGE
THIS CERTIFICATE FOR INTERESTS IN A GLOBAL CERTIFICATE.]
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS
J CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT REFERRED
TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON OCTOBER 29, 1998, AND BASED ON ITS ISSUE PRICE OF
_____%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 11 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, OTHER
THAN ARD LOANS, WHICH ARE ASSUMED TO PREPAY ON THEIR ANTICIPATED REPAYMENT
DATES, WHICH ASSUMPTION WAS USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY _____%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY _____%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (OCTOBER 29, 1998 TO NOVEMBER 18,
1998) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY _____%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS K
Pass-Through Rate: 6.0000%
First Distribution Date: November 18, 1998 Cut-Off Date: October 11, 1998
Aggregate Initial Certificate Principal Scheduled Final Distribution Date
Amount of the Class K Certificates: Date: October 2028
$37,232,197
CUSIP: [for 144A: 36228C CW 1] Initial Certificate Principal
[for Reg. S: U03911 AT 8] Amount of this Certificate:
[for Reg. D: 36228C DB 6] $[_______________]
ISIN: USU03911AT85
Common Code: 9205853
No.: [___]
This certifies that [____________] is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class K Certificates. The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens on
commercial properties and held in trust by the Trustee and serviced by the
Master Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling Agreement (as defined below). The Holder of
this Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling Agreement and is bound thereby. Also
issued under the Pooling Agreement are the Class A-1, Class A-2, Class A-3,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class Q, Class R and Class LR Certificates (together with the Class K
Certificates, the "Certificates"; the Holders of Certificates are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class K
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to the Class K Certificates is the calendar
month preceding the month in which such Distribution Date occurs and is assumed
to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class K Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class K Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:____________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
___________________________________________________ (please print or typewrite
name(s) and address(es), including postal zip code(s) of assignee(s))
("Assignee(s)") the entire Percentage Interest represented by the within Class K
Certificate and hereby authorize(s) the registration of transfer of such
interest to Assignee(s) on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class K
Certificate of the entire Percentage Interest represented by the within Class K
Certificates to the above-named Assignee(s) and to deliver such Class K
Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ______________________ for the account of __________________________
account number ____________________________.
This information is provided by ______________________________ the
Assignee(s) named above, or ____________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS Q
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE), (3) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, OR
(4) BY AN INITIAL INVESTOR THAT IS A QIB, OR BY A SUBSEQUENT INVESTOR, TO AN
INSTITUTIONAL ACCREDITED INVESTOR MEETING THE REQUIREMENTS OF REGULATION D AND
(B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF EXHIBIT D-2 TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN,
STATING THAT SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE
(A) OR (B) ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE
SATISFACTION OF THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA,
SECTION 4975 OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE
OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
<PAGE>
MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS Q
Percentage Interest: 100%
Cut-Off Date: October 11, 1998
No.: [_____]
This certifies that [______________] is the registered owner of an interest
in a Trust Fund, including the distributions to be made with respect to the
Class Q Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class R, and
Class LR Certificates (together with the Class Q Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of Net
Default Interest plus amounts in respect of the AIMCO Multifamily Pool
Conditional Debt then distributable, if any, allocable to the Class Q
Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class Q Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in it
individual capacity but solely as Trustee
By:_______________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class Q Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By:___________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class Q Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class Q
Certificate of the entire Percentage Interest represented by the within Class Q
Certificates to the above-named Assignee(s) and to deliver such Class Q
Certificate to the following address:
Date: _________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number ______________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS R
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE REGISTRAR
AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF AN EXHIBIT
TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING THAT SUCH
PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(l) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS R
Percentage Interest: 100%
Cut-Off Date: October 11, 1998
No.: [_____]
This certifies that[________________] is the registered owner of an
interest in a Trust Fund, including the distributions to be made with respect to
the Class R Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class Q, and
Class LR Certificates (together with the Class R Certificates, the
"Certificates"; the Holders of Certificates are collectively referred to herein
as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"residual interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of the aggregate amount, if any, allocable to
the Class R Certificates for such Distribution Date, all as more fully described
in the Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class R Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but Solely as Trustee
By: ___________________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: ________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
___________________ (please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class R Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R
Certificate of the entire Percentage Interest represented by the within Class R
Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
Date:_________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number __________________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS LR
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE FISCAL AGENT, THE
UNDERWRITER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
THIS CERTIFICATE OR ANY INTEREST HEREIN SHOULD NOT BE PURCHASED BY A TRANSFEREE
THAT IS (A) AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY THAT IS USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN. EACH PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE REGISTRAR
AND THE TRUSTEE A REPRESENTATION LETTER, SUBSTANTIALLY IN THE FORM OF AN EXHIBIT
TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, STATING THAT SUCH
PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(1) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN), (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT
INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME
DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT
IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS
SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO
ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND TO THE APPOINTMENT OF
THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS PERSON OR AS
OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1, CLASS LR
Percentage Interest: 100%
Cut-Off Date: October 11, 1998
No.: [_____]
This certifies that [__________] is owner the registered owner of an
interest in a Trust Fund, including the distributions to be made with respect to
the Class LR Certificates. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling Agreement and is bound thereby. Also issued under the Pooling
Agreement are the Class A-1, Class A-2, Class A-3, Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class Q, and
Class R Certificates (together with the Class LR Certificates, the
"Certificates"; the Holders of Certificates are collectively referred to herein
as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"residual interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal
Revenue Code of 1986, as amended.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling Agreement.
Pursuant to the terms of the Pooling Agreement, the Trustee, or the Paying
Agent on behalf of the Trustee, will distribute (other than the final
distribution on any Certificate), on the 18th day of each month (or, if such
18th day is not a Business Day, the next succeeding Business Day), commencing on
November 18, 1998 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of the aggregate amount, if any, allocable to
the Class LR Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
close of business on the last day of the month immediately preceding the month
in which such Distribution Date occurs, or if such day is not a Business Day,
the immediately preceding Business Day. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder of
record on the related Record Date (a) by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity located
in the United States and having appropriate facilities therefor, if such
Certificateholder provides the Trustee with wiring instructions no less than
five Business Days prior to the related Record Date, or otherwise (b) by check
mailed to such Certificateholder. The final distribution on each Certificate
shall be made in like manner, but only upon presentment and surrender of such
Certificate at the office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of the failure of
any Certificateholders to tender their Certificates shall be set aside and held
in trust for the account of the appropriate non-tendering Certificateholders,
whereupon the Trust Fund shall terminate. If any Certificates as to which notice
of the Termination Date has been given pursuant to Section 9.01 of the Pooling
Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Class LR Certificateholders all amounts distributable to the Holders thereof. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 9.01 of the Pooling
Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling Agreement.
As provided in the Pooling Agreement, the Trust Fund includes (i) such
Mortgage Loans as from time to time are subject to the Pooling Agreement,
together with the Mortgage Files relating thereto; (ii) all scheduled or
unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-Off Date (other than any GSMC Retained Interest Amounts); (iii)
any REO Property; (iv) all revenues received in respect of any REO Property; (v)
the Master Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the Pooling
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guarantees given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Payment Reserve Account, the Reinvestment Reserve Account,
the Class Q Distribution Account and any REO Account including reinvestment
income thereon; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) the Goldman Group Guaranty; and (xi) the Reinvestment
Enhancement Instrument.
This Certificate does not purport to summarize the Pooling Agreement, and
reference is made to the Pooling Agreement for the interests, rights, benefits,
obligations and duties evidenced hereby, and the limitations thereon, and the
rights, duties and immunities of the Trustee.
As provided in the Pooling Agreement and subject to certain limitations set
forth therein, this Certificate is transferable or exchangeable only upon
surrender of this Certificate to the Certificate Registrar at the Corporate
Trust Office, together with an assignment and transfer (executed by the Holder
or his duly authorized attorney), subject to the applicable requirements in
Article V of the Pooling Agreement. Upon surrender for registration of transfer
of this Certificate, subject to the applicable requirements of Article V of the
Pooling Agreement, the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination of
this Certificate. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e) of the Pooling Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Seller, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Registrar, any Paying Agent and any agent 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 Seller, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar, any
Paying Agent or any agent of any of them shall be affected by any notice or
knowledge to the contrary.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling Agreement other than for transfers to
Institutional Accredited Investors, as also provided therein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions, submitted
by the transferor or transferee to the Certificate Registrar as provided herein)
incurred by the Certificate Registrar in connection with such transfer. The
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer.
The Pooling Agreement or any Custodial Agreement may be amended from time
to time by the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, without the consent of any of the Certificateholders; (i)
to cure any ambiguity; (ii) to correct or supplement any provisions in the
Pooling Agreement or any Custodial Agreement that may be defective or
inconsistent with any other provisions in such agreement; (iii) to amend any
provision thereof to the extent necessary or desirable to maintain the status of
each of the Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC or of the
Grantor Trust as a grantor trust, or to prevent the imposition of any material
state or local taxes on the Trust Fund; (iv) to amend or supplement any
provisions in either of such agreements that shall not adversely affect in any
material respect the interests of any Certificateholder not consenting thereto,
as evidenced in writing by an Opinion of Counsel, at the expense of the party
requesting such amendment, or as evidenced by confirmation in writing from each
Rating Agency that such amendment or supplement will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates; (v) to amend or supplement any provisions in either of such
agreements to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Certificates by each Rating Agency;
or (vi) to make any other provisions with respect to matters or questions
arising under the Pooling Agreement, which shall not be inconsistent with the
provisions of the Pooling Agreement and will not result in a downgrade,
qualification or withdrawal of the then current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing. Expenses incurred with respect to any amendment pursuant to clause (vi)
shall be borne by the party requesting such amendment.
Further, the Seller, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, at any time and from time to time, without the consent of
the Certificateholders, may amend the Pooling Agreement to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
the qualification of the Trust REMIC as two separate REMICs or of the Grantor
Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, however, that such action, as evidenced by an Opinion of
Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to
maintain such qualification or to prevent the imposition of any such taxes, and
would not adversely affect in any material respect the interest of any
Certificateholder.
The Pooling Agreement or any Custodial Agreement may also be amended from
time to time by the Seller, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments on any Certificate without the
consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or
Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any
action or inaction under the Pooling Agreement,
without the consent of all the Holders of all
Certificates representing all Percentage Interests of
the Class or Classes affected thereby;
(iii) alter the Servicing Standard or the obligations of
the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent to make a P&I Advance or
Property Advance, as applicable, without the consent
of the Holders of all Certificates representing all
of the Percentage Interests of the Class or Classes
affected thereby; or
(iv) amend any section of the Pooling Agreement which
relates to the amendment thereof, without the consent
of all the Holders of all Certificates representing
all Percentage Interests of the Class or Classes
affected thereby.
The Holders at the Controlling Class representing greater than 50%
Percentage Interest of the Controlling Class may effect an early termination of
the Trust Fund, upon not less than 30 days' prior notice given to the Seller,
the Trustee and Master Servicer any time on or after the Early Termination
Notice Date specifying the Anticipated Termination Date, by purchasing on such
date all, but not less than all, of the Mortgage Loans then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan, at a
purchase price, payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each
Mortgage Loan included in the Trust Fund as
of the last day of the month preceding such
Distribution Date;
(B) the fair market value of all other property
included in the Trust Fund as of the last
day of the month preceding such Distribution
Date, as determined by an Independent
appraiser acceptable to the Master Servicer
as of the date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such
principal balance of each such Mortgage Loan
(including for this purpose any Mortgage
Loan as to which title to the related
Mortgaged Property has been acquired) at the
Mortgage Rate (plus the Excess Rate, to the
extent applicable) to the last day of the
Interest Accrual Period preceding such
Distribution Date; and
(D) the aggregate amount of unreimbursed
Property Advances, and unpaid Servicing
Fees, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses, in
each case to the extent permitted under the
Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate;
and
(ii) the aggregate fair market value of the Mortgage Loans
and all other property acquired in respect of any
Mortgage Loan on the last day of the month preceding
such Distribution Date, as determined by an
Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to
the last day of the month preceding such Distribution
Date, together with one month's interest thereon at
the related Mortgage Rates.
The Holders of the Controlling Class representing greater than a 50%
Percentage Interest of the Controlling Class, or if such Holders do not, the
Seller, or if neither the Seller nor such Holders do, the Master Servicer or, if
neither such Holders nor the Seller nor the Master Servicer does, any Holder of
a Class LR Certificate representing greater than a 50% Percentage Interest in
such Class, may also effect such termination as provided above if it first
notifies the Controlling Class Representative, the Seller and the Master
Servicer, respectively, through the Trustee of its intention to do so in writing
at least 30 days prior to the Early Termination Notice Date and neither the
Seller nor the Master Servicer as the case may be, terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to the Pooling Agreement or by the Trust Fund in connection
with the purchase of the Mortgage Loans and other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling Agreement shall be borne by the party
exercising its purchase rights hereunder. The Trustee shall be entitled to rely
conclusively on any determination made by an Independent appraiser pursuant to
Section 9.01(c) of the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the United
Kingdom, living on the date of the Pooling Agreement.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate to be
duly executed.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as Trustee
By: ______________________________________
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class LR Certificates referred to in the Pooling
Agreement.
Dated: [______________]
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Authenticating Agent
By: ______________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
____________________ (please print or typewrite name(s) and address(es),
including postal zip code(s) of assignee(s)) ("Assignee(s)") the entire
Percentage Interest represented by the within Class LR Certificate and hereby
authorize(s) the registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class LR
Certificate of the entire Percentage Interest represented by the within Class LR
Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
Date:_________________
Signature by or on behalf of Assignor(s)
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:
Distributions, if being made by wire transfer in immediately available
funds to ___________________________ for the account of
_____________________________ account number ___________________________.
This information is provided by __________________________ the Assignee(s)
named above, or ________________________________________________ as its (their)
agent.
By:
[Please print or type name(s)]
Title:
Taxpayer Identification Number
<PAGE>
EXHIBIT B
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Current
-------
Loan Monthly Current Revised Rate Excess Rate
---- ------- ------- ------------ -----------
Number Borrower Name Payment Interest Rate (ARD Loans) (ARD Loans)
------ ------------- ------- ------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
07-0000000 Ming Avenue Limited Partnership 13,071.72 8.4400 10.4400(4) 2.0000
09-0001031 PDL, Inc. & Associates, LC 120,927.79 7.3800 9.3800(4) 2.0000
09-0001032 Colonial Plaza Associates, LLC 13,478.70 6.8400 - -
09-0001034 Concourse Plaza II, LTD. 10,709.39 7.0600 - -
09-0001035 Marks/Bloom McKinney Apts., Ltd. 4,604.44 6.9300 - -
09-0001036 Marks/Bloom McKinney Apts., Ltd. 3,902.54 6.9300 - -
09-0001037 WVM Partners, Ltd. 69,098.35 7.1800 - -
09-0001038 Brandon Lakes Plaza, Ltd. 16,147.41 7.2800 - -
09-0001039 Salina Street Development, LLC 14,175.11 7.0300 - -
09-0001040 Bercar II LLC 84,425.84 7.1500 - -
09-0001041 Affordable I, L.L.C. 45,927.66 7.1500 9.1500(4) 2.0000
09-0001042 Texas Briarwood Village Apts, Ltd. 64,805.22 6.9400 - -
09-0001044 Florida Housing Corp. et al 36,514.10 7.9500 - -
09-0001045 2002-2006 Ellis Avenue Corp. 20,485.64 7.2600 - -
09-0001046 Stoneville Investment Properties, L 12,332.00 7.1100 - -
09-0001051 Town View Apartments, L.P. 13,957.93 7.2800 - -
09-0001053 Rowayton Marine Realty, LLC 23,722.57 7.3300 - -
09-0001054 PSPR, Inc. 12,897.38 7.9300 - -
09-0001055 CDI Centre, L.L.C. 55,437.43 7.4000 - -
09-0001056 Sonesta West LLC 20,727.92 7.5500 - -
09-0001057 FGR & DY Realty, Johnson City, LLC 9,192.51 6.9900 - -
09-0001058 Five N's, Inc. 13,101.55 8.1700 - -
09-0001059 Rama Hotel Corporation 12,211.59 7.8700 - -
09-0001060 M.K.K. Hotel Corporation 11,350.82 8.0700 - -
09-0001061 Canton Street Development, LLC 14,506.94 7.0500 - -
09-0001062 Par Realty Group, Inc. 23,107.61 7.5900 - -
09-0001063 Rivertech Associates Limited Partne 30,423.71 7.1600 - -
09-0001064 Manir Properties 28,537.80 7.9300 - -
09-0001065 Saunders New Mexico Properties LLC 39,905.52 7.5000 - -
09-0001066 S.S.N.H.R., Inc. 52,827.07 7.7400 - -
09-0001067 Shree Narayan, Inc. 20,623.37 7.7000 - -
09-0001069 Yogi Investments, L.L.C. 8,299.63 7.7800 - -
09-0001070 Number One Sierra, Ltd. 12,193.83 7.1800 - -
09-0001071 Jagdish Investment Group, Inc. 14,194.00 7.8600 - -
09-0001072 Angleton Investments, Ltd. 11,551.71 7.2700 - -
09-0001073 Ridgecrest Shopping Center, LTD 9,920.11 7.2700 - -
09-0001074 Laxim Hotels, Inc. 15,007.37 7.8400 - -
09-0001075 Shadow Glen Apartments, LLC 7,323.42 7.3400 - -
09-0001076 Intervest-First Place Tulsa LP 225,565.99 7.2700 - -
09-0001077 Cosmo, Inc. 6,501.23 8.6100 - -
09-0001079 Vikas Hotels, Inc. 14,034.56 7.7100 - -
09-0001080 Akanksha, Inc. 13,570.02 7.6600 - -
09-0001081 Shri Nath, L.L.C. 15,077.97 7.7200 - -
09-0001082 Colorado Place Limited Partnership 36,217.83 6.9300 - -
09-0001083 Nikita Investment Corporation 12,907.63 7.8100 - -
09-0001084 Fort Worth Credit Partners, LTD 15,720.61 7.3800 - -
09-0001085 41st Street Partners, L.P. 10,901.58 7.5600 9.5600(4) 2.0000
09-0001086 O,M-Bernardo Industrial, Ltd. 22,843.82 6.9500 8.9500(4) 2.0000
09-0001087 1709 SOUTHLAKE OAKS, LTD 15,612.13 7.2000 - -
09-0001088 Franklin Hospitality Group, Inc. 16,532.39 7.7300 - -
09-0001091 Larchmont Boulevard Building, Ltd. 9,569.47 7.2700 - -
09-0001093 SKN Properties, LLC 12,295.15 7.9500 - -
09-0001094 Marvin & Donna Cavaness Family Trust 10,608.18 6.9000 - -
09-0001095 Domain NZ Partners Limited Partners 10,253.00 7.2700 - -
09-0001096 Pasha, Inc. 14,049.88 8.3800 - -
09-0001097 Felix Payal "LLC" 12,043.58 7.7900 - -
09-0001098 Jay Bhagwan, Inc. 24,653.98 7.6500 - -
09-0001099 Four Winds, Inc. 186,089.20 9.4700 - -
09-0001100 FW of Saratoga, Inc. 88,468.64 9.4700 - -
09-0001101 Medallion Bellevue Inn, L.L.C. 75,197.43 7.4200 9.4200(4) 2.0000
09-0001102 8th and Pine Joint Venture 98,859.60 7.2900 9.2900(4) 2.0000
09-0001104 BEENA, Inc. 29,921.95 7.5300 - -
09-0001105 Jay Ambe, Inc. 10,161.51 7.7100 - -
09-0001106 Hearthside Skilled Nursing Facility 19,249.87 7.8800 - -
09-0001107 Southgate, Inc. 21,508.80 7.8100 - -
09-0001110 13405 Stemmons, Ltd. 30,873.90 7.4400 9.4400(4) 2.0000
09-0001111 All-Coast Enterprises Inc. 25,140.22 7.2100 - -
09-0001112 502 East Highland Partners, L.P. 13,176.01 7.3100 - -
09-0001113 Arshco, Inc. 21,619.02 7.6800 - -
09-0001114 EP Acquisition L.P. 22,767.76 7.4300 9.4300(4) 2.0000
09-0001115 Vance Hotel Associates Limited Part 92,211.34 7.4800 9.4800(4) 2.0000
09-0001116 The Westcoast Benson Hotel Limited 178,194.09 7.3200 9.3200(4) 2.0000
09-0001117 LTC-Ohio, Inc. 125,992.69 7.2700 - -
09-0001118 Trupti, LLC 12,033.45 7.6900 - -
09-0001119 Golden-T Holdings, Inc. 13,910.74 7.7900 - -
09-0001120 Gulab, Inc. 9,867.94 7.6600 - -
09-0001122 TMP Investments, Inc. 96,869.03 7.2500 - -
09-0001123 Springdale Villa L.P. 66,458.42 6.9400 - -
09-0001124 Jaymine Enterprises, Inc. 16,419.56 7.6400 - -
09-0001128 FSH Associates LP 177,074.61 7.3900 9.3900(4) 2.0000
09-0001130 Spring Park Plaza Associates Limite 22,883.00 7.1300 - -
09-0001132 Globe Corporation 14,537.41 7.6000 - -
09-0001133 Consolidated Storage Properties, In 39,400.72 7.1500 - -
09-0001134 Gokul, Inc., a Virginia corporation 17,070.08 7.5100 - -
09-0001135 S.W. Farmington, Inc. 55,720.03 7.4400 - -
09-0001136 S.W. Roswell, Inc. 43,105.21 7.5400 - -
09-0001137 S.W. Grants, Inc. 11,283.67 7.4400 - -
09-0001138 S.W. Gallup, Inc. 32,233.82 7.4400 - -
09-0001139 Malkus, Inc., a Florida Corporation 22,217.13 7.6700 - -
09-0001140 Nirab Amare, L.L.C. 29,860.82 7.6300 - -
09-0001141 Kush, Inc. 10,583.39 7.5300 - -
09-0001142 Westheimer Hospitality, L.L.C. 19,732.35 7.3900 - -
09-0001147 T.C. Hospitality, Inc. 12,766.60 7.1300 - -
09-0001160 Patro, Ltd. 25,865.68 6.6000 - -
09-0001163 Lancaster Mobile Homes Estates Limi 18,296.27 6.1600 - -
09-0001167 Centerra Marketplace, Inc. 47,651.41 6.1700 - -
09-0001168 Clearview - Kenosha, LLC 141,311.52 6.8800 - -
09-1001006 EPT DownREIT II, Inc. 689,147.83 6.7720 8.7720(1) 2.0000
400027540 Phoenix Construction, Inc. 25,120.22 8.5650 - -
400027560 Concord Summit, LTD. 23,893.00 8.2700 - -
400028210 Royal Village, L.L.C. 29,177.20 8.8320 - -
400028225 APA III LTD. 143,434.75 8.3200 - -
400028228 Sterling Ponds Shopping Center, LLC 66,144.79 8.4600 - -
400028269 Westmoor I, LTD. 14,579.39 7.1900 - -
400028275 R & W Arizona Properties, L.L.C. 72,454.54 7.2700 9.2700(2) 2.0000
400028277 Kenneth L. Shimm 54,050.58 7.5400 - -
400028286 Zephyr Hills Limited Partnership 15,783.29 7.2300 - -
400028304 Thirty Six Hundred LP 24,760.74 7.6200 - -
400028305 Bowman Business Park, L.L.C. 24,308.06 7.0100 - -
400029116 Cafferty Stoneybrook Associates, L. 26,181.78 7.5000 - -
400029119 6011 Durand Associates 17,507.91 7.1200 - -
400029121 Saxon Enterprises, Inc. 26,432.90 7.6100 - -
400029126 Shiloh Place I, Ltd. 8,844.49 7.4700 - -
400029129 Imperial Hawthorne Limited Partners 24,541.69 6.9700 - -
400029134 Middletown Properties Co. Limited 30,515.00 7.1900 - -
400029137 Shirley Court Holdings, L.P. 25,398.14 6.9800 - -
400029139 Prospect Venture, L.P. 35,936.04 7.0500 9.0500(2) 2.0000
400029140 Select Sites of Attleborough, Inc. 12,129.03 7.4400 - -
400029141 Willow Run Business Center I, L.L.C 161,975.77 7.5700 - -
400029143 Marketplace East Associates LP 20,367.36 6.9400 - -
400029145 West Pacific Development 17,208.45 7.1600 - -
400029147 American National Bank and Trust Co 28,890.80 7.4800 - -
400029148 Grand Rapids Associates LP 15,135.89 7.1100 - -
400029149 Ames Business Center, L.L.P. 20,064.21 7.2200 - -
400029150 Harry H. Hahamovitch 12,047.24 7.4600 - -
400029154 901 Argyle Partnership 21,448.21 7.3600 - -
400029155 Hopedale Business Park Corporation 11,468.15 7.8900 - -
400029156 Megapolis, Corporation 14,311.46 7.2400 - -
400029157 BBR Realty Partners, LP 19,229.21 7.9600 - -
400029158 B/P Investments, Inc. 21,302.83 7.6300 - -
400029160 10201 Olde School, L.L.C. 16,669.04 7.2800 - -
400029161 W-W Mill Plain Limited Partnership 33,736.56 7.1400 - -
400029162 Featherstone Associates, LP 15,322.51 7.4600 - -
400029163 Fresno Clinton Way Operating Ass. L 18,731.11 7.4200 - -
400029164 Milton Associates S.C., Inc. 26,621.00 7.8300 - -
400029166 Property Operations, Inc., as Trust 31,751.04 7.3600 - -
400029167 PO Limited Partnership 18,460.78 7.4300 - -
400029168 Ira L. Giddens, Inc. 11,034.31 7.0800 - -
400029169 Braden Creek L.L.C. 31,729.57 7.0400 - -
400029171 Freeway Properties III 33,500.51 7.0700 - -
400029172 The Armory LLC 39,361.12 7.3200 - -
400029173 Udolf Investments, LLC 31,553.20 7.4200 - -
400029174 Partridge Square, LLC 10,990.89 7.3200 - -
400029178 422 Mystic Avenue Realty, L.L.C. 23,568.34 7.1200 - -
400029180 SRK Blue Ash Associates Limited 10,320.45 7.1550 - -
400029181 Benchmark Stuyvesant Associates LP 24,771.42 7.0550 - -
400029182 Windward Realty Trust 10,202.14 7.2200 - -
400029183 Fairlawn Gardens Corp. 15,394.75 7.0600 - -
400029184 La Porte Properties, L.L.C. 42,973.99 8.3600 - -
400029185 CKL Realty. Ltd. 11,875.27 7.1400 - -
400029186 Stornaway LLC 20,236.07 8.0300 - -
400029187 Donovan LLC 17,844.53 8.0300 - -
400029188 Lillian Cove, LLC 13,671.01 6.9700 - -
400029189 83 LLC 20,267.81 7.0700 - -
400029190 Ganpati Hospitality, Inc. 24,417.49 7.9400 - -
400029191 WB Properties Trust 13,879.50 7.6300 - -
400029192 Rescom-Avery, LLC 16,124.57 7.1600 - -
400029194 Mil-Pine Plaza Associates LP 16,461.91 7.1400 - -
400029196 Little Neck Commons, LLC 14,654.30 7.7900 - -
400029197 Renaissance Campanelli, LLC 21,936.10 7.3800 - -
400029199 Thompson Associates 19,525.46 7.6300 - -
400029200 Exchange Street Parking Associates, 41,485.74 7.4100 - -
400029201 D.P. Associates, Limited Partnershi 17,774.18 7.6200 - -
400029202 York Properties of Houston, L.L.C. 30,829.36 7.1600 - -
400029204 Victor R. Young and Patricia C. You 15,933.10 7.6300 - -
400029205 Walden Properties, LLC 41,117.42 7.1300 - -
400029206 8304 Sherwick Court L.P. 12,933.28 7.4300 - -
400029207 Northway Plaza Associates, LLC 87,840.08 7.3100 - -
400029208 98 Summit, L.L.C. 14,562.85 6.9500 - -
400029209 Centennial Square Retail L.L.C. 19,274.05 7.3200 - -
400029210 Romar Investors LLC 7,356.14 7.5200 - -
400029211 Mt. Zion Decatur, LLC 15,751.83 7.7800 - -
400029212 Sterling Ponds Shopping Center, LLC 20,677.92 7.8200 - -
400029213 Hallendale Professional Park 20,976.44 7.5000 - -
400029214 NVIEMPIRE SPE LLC 36,121.74 7.7500 - -
400029215 NVIBBR, LTD. CO. 17,239.92 7.7500 - -
400029216 Central Holdings Properties, LLC 15,972.69 7.3000 - -
400029217 38-Britcher, L.L.C. 30,589.31 7.4900 - -
400029218 T.L.S. NYC Real Estate, LLC 40,584.06 7.4200 - -
400029219 T.L.S. NYC Real Estate, LLC 17,690.49 7.4200 - -
400029220 T.L.S. NYC Real Estate, LLC 47,590.89 7.4200 - -
400029221 T.L.S. NYC Real Estate, LLC 43,150.92 7.4200 - -
400029222 T.L.S. NYC Real Estate, LLC 26,917.29 7.4200 - -
400029223 T.L.S. NYC Real Estate, LLC 22,546.70 7.4200 - -
400029224 T.L.S. NYC Real Estate, LLC 69,027.60 7.4200 - -
400029225 T.L.S. NYC Real Estate, LLC 11,654.91 7.4200 - -
400029226 T.L.S. NYC Real Estate, LLC 31,287.89 7.4200 - -
400029227 T.L.S. NYC Real Estate, LLC 22,685.45 7.4200 - -
400029228 Canyon Road Galleries, Inc. 11,026.39 7.4400 - -
400029232 Riverside Village Investments, LLC 26,935.24 7.1200 - -
400029233 G-WHIS/BELLMEAD, L.P. 12,211.15 7.1800 - -
400029234 Center of Clewiston Land Trust 24,334.07 7.5300 - -
400029235 440 East Sample Road, Inc. 9,123.86 7.3600 - -
400029236 Lomond Place, LLC 19,256.28 7.3600 - -
400029237 PTW Holding LLLP 33,338.08 7.2800 - -
400029238 Pulaski 3800 Storage LLLP 16,594.93 7.2300 - -
400029246 Columbia East Dundee II, Limited Pa 3,703.28 7.5900 - -
400029248 6800 Associates Limited Partnership 14,456.85 8.0200 - -
400029250 Farragut Acquisition Partners I, LP 23,268.38 7.4700 - -
400029251 Poplar Center Development, Ltd. 35,414.21 6.9500 - -
400029252 Triad Lauderdale Limited 26,965.89 6.9000 - -
400029253 J & D 1616, LLC 7,601.18 7.3800 - -
400029255 J & D Woodward Village, LLC 45,011.04 7.4800 - -
400029257 Indian Lookout Apartments, Limited 32,387.10 7.1400 - -
400029258 C & H Development/Concord 12,758.05 7.4700 - -
400029262 Coldwell Building General Partnersh 33,079.18 7.4400 - -
400029267 301 West Broad Street Limited Partn 28,548.16 6.8300 - -
400029274 B.K. Enterprises LLC 32,597.96 7.0400 - -
400029282 MHVI Medical Center 60,210.68 7.2800 - -
400029290 Whitehall Partnership 10,928.92 7.5300 - -
400029291 Partridge Square, LLC 6,220.73 7.3900 - -
400029294 Wailuku Polaris, Inc. 15,650.37 7.1200 - -
400029297 Towerview Condominium, LLC 10,032.59 7.4800 - -
400029299 Ogden Manor Associates 26,183.67 6.8400 - -
400029300 Harrisonburg Inn Limited Partnershi 20,058.55 7.1500 - -
400029304 Gateway Development, LLC 7,929.63 7.2200 - -
400029306 UG Venture, LTD. 25,803.69 6.8200 - -
400029308 BA Dallas Market Center I, L.P. 91,136.27 6.9100 - -
400029309 W & B Properties, Inc. 16,838.58 7.2100 - -
400029310 Airport Place Building, LLC 15,124.87 7.2100 - -
400029311 Prime Plaza, Inc. 11,719.18 7.4000 - -
400030866 Annapolis W.H. LLC, et al 16,506.21 7.1700 - -
400030867 Arcadia Landmark 39,396.68 7.2100 - -
400030868 GPI Cascades, Ltd. 17,768.56 7.0400 - -
400030869 GPI Park Square, Ltd. 7,347.90 7.0400 - -
400030870 GPI Park Ridge, Ltd. 6,042.22 7.0900 - -
400030871 Padonia Park, LLC 11,209.92 7.4200 - -
400030875 Grand Rapids AFG, LLC 27,834.25 7.5500 - -
400030876 Lansing AFG LLC 27,439.01 7.5400 - -
400030880 Cavalier Associates, L.L.C. etal 57,564.72 7.8200 - -
400030886 Ash Investment Company, LLC & Ja 29,067.33 7.8200 - -
400030890 Pacific Mini-Storage Limited Partne 20,600.77 7.4500 - -
400030893 1202 Airport Road Limited Partnersh 13,508.14 7.1500 - -
400030896 Bend Towne Center Limited Partnersh 28,552.47 7.1100 - -
400030913 761 Partnership, a New York General 98,228.05 7.1800 - -
400030914 Lexington Lancaster LLC 74,997.70 7.0200 - -
400030915 The Saddlery, LLP 17,173.27 7.3200 - -
400030922 666 Pennsylvania Avenue Associates 35,286.97 6.9700 - -
400030925 DEVON INVESTMENT, INC., a Florid 12,268.34 6.9100 - -
400030934 Woodwinds Office Center, L.L.C. 10,020.29 7.1400 - -
400030935 Nashville Heritage, LLC 59,135.22 7.2600 - -
400030964 JAGI Cleveland - Hudson, LLC 103,445.77 8.0900 - -
400030965 JAGI Cleveland-Independence,LLC 169,557.73 8.0900 - -
400030966 JAGI NORTH CANTON, LLC. 42,000.54 8.0900 - -
400030967 JAGI MONTROSE WEST, LLC 27,222.57 8.0900 - -
400031048 Palm Springs Village Apts., L.P. 30,789.50 7.0600 - -
400031123 Whitewood Oaks Apartments, Inc. 11,890.94 6.9300 - -
400031128 Hilgard Apartments 962, LLC 19,537.78 6.7900 - -
ANADC Lowe Enterprises, Inc./Ohio Public 273,187.50 6.7500 - -
I0074 Dime Circle, Ltd 9,157.43 7.4200 - -
I0099 2800 Black Lake Place Associates 12,181.65 7.1700 - -
L0137 Walber Broadway Co. 89,254.17 6.9100 - -
L0149 Lake Natoma Lodging, L.P. 58,651.77 7.2700 - -
L0171 RNA, LLC 23,393.47 8.1200 - -
L0184 J & M Hospitality, Inc. 15,618.62 7.7100 - -
L0200 The Impala Corporation 16,393.51 7.9400 - -
L0202 CMLC, Inc. 15,304.07 7.9000 - -
L0237 ZDZ, Inc. and Zandor Investments, L 22,622.32 7.2600 - -
L0300 Marger, Inc. 16,337.78 7.7600 - -
M0171 Fremont Gardens Investors LLC 65,597.48 7.4800 - -
M0172 Roxbury Crossing Limited Partnershi 4,634.97 7.5400 - -
M0220 Inwood Mansions, LLC 9,337.28 7.5800 - -
M0262 Oakwood Heights Real Estate LP 8,987.35 7.1700 - -
M0263 Country Acres Estates LP 21,042.43 7.2000 - -
M0264 Executive East Apartments, LLC 11,878.79 7.2000 - -
M0288 SV Apartments, LLC 7,127.28 7.2000 - -
M0289 The Crossings Apartments LLC 6,787.88 7.2000 - -
M0290 Geneva Place Limited Partnership 8,967.05 7.1700 - -
M0330 John Montesano, LLC 29,938.61 7.0000 - -
M0364 Riverchase Partners, L.P. 6,614.13 7.3500 - -
M0415 Northridge Villa Investors LLC 27,175.53 7.3100 - -
M0429 The Seasons Townhouses Limited Pa 30,060.81 7.4000 - -
M0443 Treehouse of Jacksonville, Ltd. 15,694.19 6.8300 - -
M0462 Cottonwood, LLC 57,036.49 6.8100 - -
M0487 II Frances Place Apartments Partner 22,974.19 7.0800 - -
M0514 Hobbit's Grove LLC 73,889.84 6.3700 - -
M0537 Cedar Shores, Ltd. 17,786.75 6.8300 - -
MH0020 Grand Valley Village LP & GVV Mobil 29,344.34 6.4900 - -
MU0036 Landi, LLC 13,813.69 7.1400 - -
MU0114 Landi, LLC 4,401.77 7.1400 - -
O0090 Village Square of HSV, L.L.C. 52,146.84 7.7200 - -
O0148 312 Marshall Limited Partnership 45,337.42 7.3200 - -
O0179 Jayco Vista, LLC 73,574.36 7.3300 - -
O0244 Talweg L.L.C. 44,540.03 7.2950 - -
O0253 G & H Six, L.L.C. 10,312.43 7.8800 - -
O0259 1501 Harbor Bay, L.P. 22,840.60 7.1700 - -
O0265 Vornado-Westport L.L.C. 49,737.78 7.2200 - -
O0311 Dunwoody Park Partners, Inc. 64,484.88 7.2000 - -
O0320 Medical Landmark I & The Rehabilita 66,973.08 7.6930 12.6930(3) 5.0000
O0348 Liberty 2000 Investors, Ltd. 9,467.14 7.5300 - -
O0359 Concord Management Ltd., et al 30,241.44 7.1000 - -
O0393 Brit Limited Partnership 19,842.40 7.3500 - -
O0422 Enterprise Center Properties, Inc. 24,193.15 7.1000 - -
O0541 Ace Allen 8,461.03 7.4500 - -
R0134 Hardscrabble, LLC 44,348.66 7.1600 - -
R0254 Silver Spring Plaza Corp. 14,822.58 7.2400 - -
R0280 K.M. Valdosta Associates 72,148.22 7.2600 - -
R0297 New Country Corners LP 44,960.35 7.3900 - -
R0304 Alturas Partners 24,314.64 7.1500 - -
R0311 The Lakes - Folsom, LLC 36,314.13 7.3900 - -
R0315 Kentucky Development Venture I 27,999.14 7.0200 - -
R0412 G.W.C.H. Limited Partnership 11,025.15 7.6300 - -
R0421 Fairbanks Equity, Ltd. 88,087.58 7.5800 - -
R0458 Dexter Ridge Shopping Center, L.L.C 29,199.09 7.2300 - -
R0463 Ruston Center, L.L.C. 32,560.85 7.0900 - -
R0464 Sunshine Heights, L.L.C. 31,341.49 7.4600 - -
R0480 BB Westland Associates, LLC 12,622.83 7.5300 - -
R0497 Canary Creek Shoppes LLC 10,132.22 7.3200 - -
R0514 Metzerott Plaza, Inc. 34,408.04 7.1000 - -
R0533 JAH Investments, LLC 34,909.96 7.3000 - -
R0559 BC Investments - Lincoln LLC 38,597.64 7.2000 - -
R0597 BenCen Limited Partnership 16,948.71 7.3500 - -
R0633 Newton Land Corporation 12,686.54 7.0900 - -
R0634 Newton Land Corporation 6,245.68 7.0900 - -
R0743 Town Center Shoppes, Ltd. 24,790.13 6.8300 - -
R0807 Fla II Trustee, Inc. 14,364.67 6.7700 - -
R0886 Landi, LLC 4,008.12 7.1400 - -
R0887 Landi, LLC 8,195.17 7.1400 - -
SP007 H.M. Holdings, Inc. etal 158,800.60 8.3200 10.3200(1) 2.0000
SkyII 15th Skyline Assoc. LP & 9th Skylin 592,148.22 7.0490 9.0490(1) 2.0000
ACS Americold Real Estate, L.P. 1,048,596.30 6.8940 8.8940(4) 2.0000
AIM-1 VMS National Properties 879,519.87 8.5000 - -
</TABLE>
<TABLE>
<CAPTION>
Loan Original Original Remaining
---- -------- -------- ---------
Number Borrower Name Interest Accrual Method Net Rate Balance Loan Term Loan Term
------ ------------- ----------------------- -------- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
07-0000000 Ming Avenue Limited Partnership Actual Days / 360 Year-Days 8.3125 1,500,000.00 120 117
09-0001031 PDL, Inc. & Associates, LC Actual Days / 360 Year-Days 7.2525 17,500,000.00 120 115
09-0001032 Colonial Plaza Associates, LLC 30 Month-Days / 360 Year-Days 6.7125 1,500,000.00 177 172
09-0001034 Concourse Plaza II, LTD. Actual Days / 360 Year-Days 6.9325 1,600,000.00 120 114
09-0001035 Marks/Bloom McKinney Apts., Ltd. 30 Month-Days / 360 Year-Days 6.8025 697,000.00 120 114
09-0001036 Marks/Bloom McKinney Apts., Ltd. 30 Month-Days / 360 Year-Days 6.8025 590,750.00 120 114
09-0001037 WVM Partners, Ltd. Actual Days / 360 Year-Days 7.0525 10,200,000.00 120 115
09-0001038 Brandon Lakes Plaza, Ltd. Actual Days / 360 Year-Days 7.1525 2,360,000.00 120 115
09-0001039 Salina Street Development, LLC 30 Month-Days / 360 Year-Days 6.9025 1,780,860.00 228 223
09-0001040 Bercar II LLC Actual Days / 360 Year-Days 7.0225 12,500,000.00 120 115
09-0001041 Affordable I, L.L.C. Actual Days / 360 Year-Days 7.0225 6,800,000.00 120 115
09-0001042 Texas Briarwood Village Apts, Ltd. Actual Days / 360 Year-Days 6.8125 9,800,000.00 120 114
09-0001044 Florida Housing Corp. et al Actual Days / 360 Year-Days 7.8225 5,000,000.00 120 115
09-0001045 2002-2006 Ellis Avenue Corp. Actual Days / 360 Year-Days 7.1325 3,000,000.00 120 115
09-0001046 Stoneville Investment Properties, L 30 Month-Days / 360 Year-Days 6.9825 1,577,089.00 240 237
09-0001051 Town View Apartments, L.P. Actual Days / 360 Year-Days 7.1525 2,040,000.00 120 117
09-0001053 Rowayton Marine Realty, LLC Actual Days / 360 Year-Days 7.2025 3,450,000.00 120 116
09-0001054 PSPR, Inc. Actual Days / 360 Year-Days 7.8025 1,550,000.00 240 236
09-0001055 CDI Centre, L.L.C. Actual Days / 360 Year-Days 7.2725 8,006,795.00 121 116
09-0001056 Sonesta West LLC Actual Days / 360 Year-Days 7.4225 2,950,000.00 120 116
09-0001057 FGR & DY Realty, Johnson City, LLC 30 Month-Days / 360 Year-Days 6.8625 1,200,000.00 247 244
09-0001058 Five N's, Inc. Actual Days / 360 Year-Days 8.0425 1,200,000.00 144 140
09-0001059 Rama Hotel Corporation Actual Days / 360 Year-Days 7.7425 1,600,000.00 120 116
09-0001060 M.K.K. Hotel Corporation Actual Days / 360 Year-Days 7.9425 1,350,000.00 240 236
09-0001061 Canton Street Development, LLC 30 Month-Days / 360 Year-Days 6.9225 1,827,400.00 230 226
09-0001062 Par Realty Group, Inc. Actual Days / 360 Year-Days 7.4625 2,825,000.00 240 236
09-0001063 Rivertech Associates Limited Partne Actual Days / 360 Year-Days 7.0325 4,500,000.00 120 116
09-0001064 Manir Properties Actual Days / 360 Year-Days 7.8025 3,400,000.00 240 236
09-0001065 Saunders New Mexico Properties LLC Actual Days / 360 Year-Days 7.3725 5,400,000.00 120 116
09-0001066 S.S.N.H.R., Inc. Actual Days / 360 Year-Days 7.6125 7,000,000.00 120 116
09-0001067 Shree Narayan, Inc. Actual Days / 360 Year-Days 7.5725 2,500,000.00 240 237
09-0001069 Yogi Investments, L.L.C. Actual Days / 360 Year-Days 7.6525 1,000,000.00 240 237
09-0001070 Number One Sierra, Ltd. Actual Days / 360 Year-Days 7.0525 1,800,000.00 120 117
09-0001071 Jagdish Investment Group, Inc. Actual Days / 360 Year-Days 7.7325 1,700,000.00 240 237
09-0001072 Angleton Investments, Ltd. Actual Days / 360 Year-Days 7.1425 1,690,000.00 120 117
09-0001073 Ridgecrest Shopping Center, LTD Actual Days / 360 Year-Days 7.1425 1,370,000.00 120 117
09-0001074 Laxim Hotels, Inc. Actual Days / 360 Year-Days 7.7125 1,800,000.00 240 237
09-0001075 Shadow Glen Apartments, LLC Actual Days / 360 Year-Days 7.2125 1,064,000.00 120 117
09-0001076 Intervest-First Place Tulsa LP Actual Days / 360 Year-Days 7.1425 33,000,000.00 120 116
09-0001077 Cosmo, Inc. Actual Days / 360 Year-Days 8.4825 800,000.00 120 117
09-0001079 Vikas Hotels, Inc. Actual Days / 360 Year-Days 7.5825 1,700,000.00 240 237
09-0001080 Akanksha, Inc. Actual Days / 360 Year-Days 7.5325 1,650,000.00 240 237
09-0001081 Shri Nath, L.L.C. Actual Days / 360 Year-Days 7.5925 1,825,000.00 240 237
09-0001082 Colorado Place Limited Partnership Actual Days / 360 Year-Days 6.8025 5,482,500.00 120 117
09-0001083 Nikita Investment Corporation Actual Days / 360 Year-Days 7.6825 1,700,000.00 120 117
09-0001084 Fort Worth Credit Partners, LTD Actual Days / 360 Year-Days 7.2525 2,275,000.00 120 117
09-0001085 41st Street Partners, L.P. Actual Days / 360 Year-Days 7.4325 1,550,000.00 120 118
09-0001086 O,M-Bernardo Industrial, Ltd. Actual Days / 360 Year-Days 6.8225 3,451,000.00 120 117
09-0001087 1709 SOUTHLAKE OAKS, LTD Actual Days / 360 Year-Days 7.0725 2,300,000.00 120 118
09-0001088 Franklin Hospitality Group, Inc. Actual Days / 360 Year-Days 7.6025 2,000,000.00 240 239
09-0001091 Larchmont Boulevard Building, Ltd. Actual Days / 360 Year-Days 7.1425 1,400,000.00 120 118
09-0001093 SKN Properties, LLC Actual Days / 360 Year-Days 7.8225 1,462,500.00 240 237
09-0001094 Marvin & Donna Cavaness Family Tru Actual Days / 360 Year-Days 6.7725 1,180,000.00 180 177
09-0001095 Domain NZ Partners Limited Partners Actual Days / 360 Year-Days 7.1425 1,500,000.00 120 117
09-0001096 Pasha, Inc. Actual Days / 360 Year-Days 8.2525 1,762,500.00 120 117
09-0001097 Felix Payal "LLC" Actual Days / 360 Year-Days 7.6625 1,450,000.00 240 237
09-0001098 Jay Bhagwan, Inc. Actual Days / 360 Year-Days 7.5225 3,000,000.00 240 237
09-0001099 Four Winds, Inc. Actual Days / 360 Year-Days 9.3425 21,350,000.00 120 117
09-0001100 FW of Saratoga, Inc. Actual Days / 360 Year-Days 9.3425 10,150,000.00 120 117
09-0001101 Medallion Bellevue Inn, L.L.C. Actual Days / 360 Year-Days 7.2925 10,150,000.00 120 118
09-0001102 8th and Pine Joint Venture Actual Days / 360 Year-Days 7.1625 13,500,000.00 120 118
09-0001104 BEENA, Inc. Actual Days / 360 Year-Days 7.4025 3,675,000.00 240 238
09-0001105 Jay Ambe, Inc. Actual Days / 360 Year-Days 7.5825 1,350,000.00 120 118
09-0001106 Hearthside Skilled Nursing Facility Actual Days / 360 Year-Days 7.7525 2,520,000.00 120 118
09-0001107 Southgate, Inc. Actual Days / 360 Year-Days 7.6825 2,985,000.00 120 118
09-0001110 13405 Stemmons, Ltd. Actual Days / 360 Year-Days 7.3125 4,200,000.00 120 119
09-0001111 All-Coast Enterprises Inc. Actual Days / 360 Year-Days 7.0825 3,700,000.00 120 119
09-0001112 502 East Highland Partners, L.P. Actual Days / 360 Year-Days 7.1825 1,920,000.00 120 118
09-0001113 Arshco, Inc. Actual Days / 360 Year-Days 7.5525 2,625,000.00 240 238
09-0001114 EP Acquisition L.P. Actual Days / 360 Year-Days 7.3025 3,100,000.00 120 118
09-0001115 Vance Hotel Associates Limited Part Actual Days / 360 Year-Days 7.3525 12,500,000.00 120 118
09-0001116 The Westcoast Benson Hotel Limited Actual Days / 360 Year-Days 7.1925 24,500,000.00 120 118
09-0001117 LTC-Ohio, Inc. Actual Days / 360 Year-Days 7.1425 17,400,000.00 120 119
09-0001118 Trupti, LLC Actual Days / 360 Year-Days 7.5625 1,460,000.00 240 238
09-0001119 Golden-T Holdings, Inc. Actual Days / 360 Year-Days 7.6625 1,675,000.00 240 238
09-0001120 Gulab, Inc. Actual Days / 360 Year-Days 7.5325 1,200,000.00 240 238
09-0001122 TMP Investments, Inc. Actual Days / 360 Year-Days 7.1225 14,200,000.00 120 118
09-0001123 Springdale Villa L.P. Actual Days / 360 Year-Days 6.8125 10,050,000.00 120 118
09-0001124 Jaymine Enterprises, Inc. Actual Days / 360 Year-Days 7.5125 2,000,000.00 240 239
09-0001128 FSH Associates LP Actual Days / 360 Year-Days 7.2625 25,600,000.00 120 119
09-0001130 Spring Park Plaza Associates Limite Actual Days / 360 Year-Days 7.0025 3,200,000.00 120 119
09-0001132 Globe Corporation Actual Days / 360 Year-Days 7.4725 1,950,000.00 120 119
09-0001133 Consolidated Storage Properties, In Actual Days / 360 Year-Days 7.0225 5,500,000.00 120 119
09-0001134 Gokul, Inc., a Virginia corporation Actual Days / 360 Year-Days 7.3825 2,100,000.00 240 239
09-0001135 S.W. Farmington, Inc. Actual Days / 360 Year-Days 7.3125 7,580,000.00 120 119
09-0001136 S.W. Roswell, Inc. Actual Days / 360 Year-Days 7.4125 5,812,500.00 120 119
09-0001137 S.W. Grants, Inc. Actual Days / 360 Year-Days 7.3125 1,535,000.00 120 119
09-0001138 S.W. Gallup, Inc. Actual Days / 360 Year-Days 7.3125 4,385,000.00 120 119
09-0001139 Malkus, Inc., a Florida Corporation Actual Days / 360 Year-Days 7.5425 2,700,000.00 240 239
09-0001140 Nirab Amare, L.L.C. Actual Days / 360 Year-Days 7.5025 3,640,000.00 240 239
09-0001141 Kush, Inc. Actual Days / 360 Year-Days 7.4025 1,300,000.00 240 239
09-0001142 Westheimer Hospitality, L.L.C. Actual Days / 360 Year-Days 7.2625 2,450,000.00 240 239
09-0001147 T.C. Hospitality, Inc. Actual Days / 360 Year-Days 7.0025 1,400,000.00 180 179
09-0001160 Patro, Ltd. Actual Days / 360 Year-Days 6.4725 4,050,000.00 120 120
09-0001163 Lancaster Mobile Homes Estates Limi Actual Days / 360 Year-Days 6.0325 3,000,000.00 120 120
09-0001167 Centerra Marketplace, Inc. Actual Days / 360 Year-Days 6.0425 6,514,000.00 240 240
09-0001168 Clearview - Kenosha, LLC Actual Days / 360 Year-Days 6.7525 21,500,000.00 120 120
09-1001006 EPT DownREIT II, Inc. Actual Days / 360 Year-Days 6.6445 105,000,000.00 120 117
400027540 Phoenix Construction, Inc. 30 Month-Days / 360 Year-Days 8.4375 3,247,500.00 180 166
400027560 Concord Summit, LTD. 30 Month-Days / 360 Year-Days 8.1425 2,800,000.00 240 229
400028210 Royal Village, L.L.C. 30 Month-Days / 360 Year-Days 8.7045 3,525,000.00 180 164
400028225 APA III LTD. 30 Month-Days / 360 Year-Days 8.1925 18,968,000.00 84 69
400028228 Sterling Ponds Shopping Center, LLC 30 Month-Days / 360 Year-Days 8.3325 8,242,000.00 120 107
400028269 Westmoor I, LTD. Actual Days / 360 Year-Days 7.0625 2,150,000.00 120 114
400028275 R & W Arizona Properties, L.L.C. 30 Month-Days / 360 Year-Days 7.1425 10,600,000.00 120 111
400028277 Kenneth L. Shimm 30 Month-Days / 360 Year-Days 7.4125 7,700,000.00 120 110
400028286 Zephyr Hills Limited Partnership Actual Days / 360 Year-Days 7.1025 2,000,000.00 120 112
400028304 Thirty Six Hundred LP 30 Month-Days / 360 Year-Days 7.4925 3,500,000.00 180 171
400028305 Bowman Business Park, L.L.C. 30 Month-Days / 360 Year-Days 6.8825 3,650,000.00 120 113
400029116 Cafferty Stoneybrook Associates, L. Actual Days / Actual Year-Days 7.3725 3,250,000.00 240 231
400029119 6011 Durand Associates 30 Month-Days / 360 Year-Days 6.9925 2,600,000.00 120 113
400029121 Saxon Enterprises, Inc. Actual Days / 360 Year-Days 7.4825 3,740,000.00 120 113
400029126 Shiloh Place I, Ltd. 30 Month-Days / 360 Year-Days 7.3425 1,200,000.00 120 113
400029129 Imperial Hawthorne Limited Partners 30 Month-Days / 360 Year-Days 6.8425 3,700,000.00 120 112
400029134 Middletown Properties Co. Limited 30 Month-Days / 360 Year-Days 7.0625 4,500,000.00 120 113
400029137 Shirley Court Holdings, L.P. 30 Month-Days / 360 Year-Days 6.8525 3,600,000.00 120 113
400029139 Prospect Venture, L.P. 30 Month-Days / 360 Year-Days 6.9225 5,200,000.00 120 113
400029140 Select Sites of Attleborough, Inc. 30 Month-Days / 360 Year-Days 7.3125 1,650,000.00 180 173
400029141 Willow Run Business Center I, L.L.C Actual Days / 360 Year-Days 7.4425 20,000,000.00 240 231
400029143 Marketplace East Associates LP Actual Days / 360 Year-Days 6.8125 3,080,000.00 84 78
400029145 West Pacific Development 30 Month-Days / 360 Year-Days 7.0325 2,400,000.00 120 112
400029147 American National Bank and Trust Co 30 Month-Days / 360 Year-Days 7.3525 4,140,000.00 120 113
400029148 Grand Rapids Associates LP 30 Month-Days / 360 Year-Days 6.9825 2,250,000.00 120 113
400029149 Ames Business Center, L.L.P. 30 Month-Days / 360 Year-Days 7.0925 2,950,000.00 120 113
400029150 Harry H. Hahamovitch 30 Month-Days / 360 Year-Days 7.3325 1,500,000.00 120 111
400029154 901 Argyle Partnership 30 Month-Days / 360 Year-Days 7.2325 3,110,000.00 121 114
400029155 Hopedale Business Park Corporation 30 Month-Days / 360 Year-Days 7.7625 1,500,000.00 120 113
400029156 Megapolis, Corporation 30 Month-Days / 360 Year-Days 7.1125 2,100,000.00 120 115
400029157 BBR Realty Partners, LP Actual Days / 360 Year-Days 7.8325 2,500,000.00 120 112
400029158 B/P Investments, Inc. Actual Days / 360 Year-Days 7.5025 2,850,000.00 120 113
400029160 10201 Olde School, L.L.C. 30 Month-Days / 360 Year-Days 7.1525 2,300,000.00 120 114
400029161 W-W Mill Plain Limited Partnership 30 Month-Days / 360 Year-Days 7.0125 5,000,000.00 120 115
400029162 Featherstone Associates, LP Actual Days / 360 Year-Days 7.3325 2,200,000.00 108 101
400029163 Fresno Clinton Way Operating Ass. L Actual Days / 360 Year-Days 7.2925 2,700,000.00 84 78
400029164 Milton Associates S.C., Inc. Actual Days / 360 Year-Days 7.7025 3,500,000.00 121 114
400029166 Property Operations, Inc., as Trust Actual Days / 360 Year-Days 7.2325 4,350,000.00 120 113
400029167 PO Limited Partnership 30 Month-Days / 360 Year-Days 7.3025 2,000,000.00 180 172
400029168 Ira L. Giddens, Inc. Actual Days / 360 Year-Days 6.9525 1,550,000.00 120 113
400029169 Braden Creek L.L.C. Actual Days / 360 Year-Days 6.9125 4,750,000.00 120 112
400029171 Freeway Properties III Actual Days / 360 Year-Days 6.9425 5,000,000.00 120 113
400029172 The Armory LLC 30 Month-Days / 360 Year-Days 7.1925 5,730,000.00 120 115
400029173 Udolf Investments, LLC 30 Month-Days / 360 Year-Days 7.2925 4,300,000.00 120 115
400029174 Partridge Square, LLC 30 Month-Days / 360 Year-Days 7.1925 1,600,000.00 120 115
400029178 422 Mystic Avenue Realty, L.L.C. 30 Month-Days / 360 Year-Days 6.9925 3,500,000.00 120 114
400029180 SRK Blue Ash Associates Limited 30 Month-Days / 360 Year-Days 7.0275 1,440,000.00 120 113
400029181 Benchmark Stuyvesant Associates LP 30 Month-Days / 360 Year-Days 6.9275 3,487,500.00 120 114
400029182 Windward Realty Trust 30 Month-Days / 360 Year-Days 7.0925 1,500,000.00 120 115
400029183 Fairlawn Gardens Corp. Actual Days / 360 Year-Days 6.9325 2,300,000.00 120 114
400029184 La Porte Properties, L.L.C. Actual Days / 360 Year-Days 8.2325 5,400,000.00 120 113
400029185 CKL Realty. Ltd. Actual Days / 360 Year-Days 7.0125 1,760,000.00 120 114
400029186 Stornaway LLC Actual Days / 360 Year-Days 7.9025 2,750,000.00 120 115
400029187 Donovan LLC Actual Days / 360 Year-Days 7.9025 2,425,000.00 120 115
400029188 Lillian Cove, LLC Actual Days / 360 Year-Days 6.8425 1,680,000.00 216 210
400029189 83 LLC Actual Days / 360 Year-Days 6.9425 3,025,000.00 120 114
400029190 Ganpati Hospitality, Inc. Actual Days / 360 Year-Days 7.8125 3,180,000.00 120 114
400029191 WB Properties Trust Actual Days / 360 Year-Days 7.5025 1,960,000.00 120 116
400029192 Rescom-Avery, LLC Actual Days / 360 Year-Days 7.0325 2,385,000.00 120 114
400029194 Mil-Pine Plaza Associates LP Actual Days / 360 Year-Days 7.0125 2,300,000.00 120 115
400029196 Little Neck Commons, LLC Actual Days / 360 Year-Days 7.6625 1,980,000.00 120 116
400029197 Renaissance Campanelli, LLC Actual Days / 360 Year-Days 7.2525 3,000,000.00 120 116
400029199 Thompson Associates 30 Month-Days / 360 Year-Days 7.5025 2,400,000.00 120 115
400029200 Exchange Street Parking Associates, Actual Days / 360 Year-Days 7.2825 4,500,000.00 120 115
400029201 D.P. Associates, Limited Partnershi Actual Days / 360 Year-Days 7.4925 2,380,000.00 120 115
400029202 York Properties of Houston, L.L.C. Actual Days / 360 Year-Days 7.0325 4,560,000.00 120 114
400029204 Victor R. Young and Patricia C. You Actual Days / 360 Year-Days 7.5025 2,250,000.00 120 114
400029205 Walden Properties, LLC 30 Month-Days / 360 Year-Days 7.0025 6,100,000.00 120 115
400029206 8304 Sherwick Court L.P. 30 Month-Days / 360 Year-Days 7.3025 1,614,000.00 120 116
400029207 Northway Plaza Associates, LLC Actual Days / 360 Year-Days 7.1825 12,800,000.00 120 116
400029208 98 Summit, L.L.C. Actual Days / 360 Year-Days 6.8225 2,200,000.00 120 114
400029209 Centennial Square Retail L.L.C. Actual Days / 360 Year-Days 7.1925 2,650,000.00 120 116
400029210 Romar Investors LLC Actual Days / 360 Year-Days 7.3925 1,050,000.00 120 116
400029211 Mt. Zion Decatur, LLC Actual Days / 360 Year-Days 7.6525 2,080,000.00 120 115
400029212 Sterling Ponds Shopping Center, LLC 30 Month-Days / 360 Year-Days 7.6925 2,700,000.00 113 107
400029213 Hallendale Professional Park Actual Days / 360 Year-Days 7.3725 3,000,000.00 120 116
400029214 NVIEMPIRE SPE LLC Actual Days / 360 Year-Days 7.6225 4,400,000.00 120 115
400029215 NVIBBR, LTD. CO. Actual Days / 360 Year-Days 7.6225 2,100,000.00 120 115
400029216 Central Holdings Properties, LLC Actual Days / 360 Year-Days 7.1725 2,200,000.00 120 117
400029217 38-Britcher, L.L.C. Actual Days / 360 Year-Days 7.3625 3,800,000.00 240 236
400029218 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 5,850,000.00 120 116
400029219 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 2,550,000.00 120 116
400029220 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 6,860,000.00 120 116
400029221 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 6,220,000.00 120 116
400029222 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 3,880,000.00 120 116
400029223 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 3,250,000.00 120 116
400029224 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 9,950,000.00 120 116
400029225 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 1,680,000.00 120 116
400029226 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 4,510,000.00 120 116
400029227 T.L.S. NYC Real Estate, LLC 30 Month-Days / 360 Year-Days 7.2925 3,270,000.00 120 116
400029228 Canyon Road Galleries, Inc. Actual Days / 360 Year-Days 7.3125 1,500,000.00 120 115
400029232 Riverside Village Investments, LLC Actual Days / 360 Year-Days 6.9925 4,000,000.00 120 116
400029233 G-WHIS/BELLMEAD, L.P. Actual Days / 360 Year-Days 7.0525 1,700,000.00 120 116
400029234 Center of Clewiston Land Trust Actual Days / 360 Year-Days 7.4025 3,470,000.00 120 116
400029235 440 East Sample Road, Inc. Actual Days / 360 Year-Days 7.2325 1,250,000.00 120 116
400029236 Lomond Place, LLC 30 Month-Days / 360 Year-Days 7.2325 2,600,000.00 120 116
400029237 PTW Holding LLLP 30 Month-Days / 360 Year-Days 7.1525 4,600,000.00 120 117
400029238 Pulaski 3800 Storage LLLP 30 Month-Days / 360 Year-Days 7.1025 2,300,000.00 120 117
400029246 Columbia East Dundee II, Limited Pa Actual Days / 360 Year-Days 7.4625 525,000.00 120 117
400029248 6800 Associates Limited Partnership 30 Month-Days / 360 Year-Days 7.8925 1,650,000.00 216 212
400029250 Farragut Acquisition Partners I, LP Actual Days / 360 Year-Days 7.3425 3,157,000.00 120 116
400029251 Poplar Center Development, Ltd. Actual Days / 360 Year-Days 6.8225 5,350,000.00 120 117
400029252 Triad Lauderdale Limited 30 Month-Days / 360 Year-Days 6.7725 3,850,000.00 120 116
400029253 J & D 1616, LLC Actual Days / 360 Year-Days 7.2525 1,100,000.00 120 118
400029255 J & D Woodward Village, LLC Actual Days / 360 Year-Days 7.3525 6,450,000.00 120 116
400029257 Indian Lookout Apartments, Limited Actual Days / 360 Year-Days 7.0125 4,800,000.00 120 116
400029258 C & H Development/Concord 30 Month-Days / 360 Year-Days 7.3425 1,830,000.00 120 117
400029262 Coldwell Building General Partnersh Actual Days / 360 Year-Days 7.3125 4,500,000.00 120 117
400029267 301 West Broad Street Limited Partn 30 Month-Days / 360 Year-Days 6.7025 3,210,000.00 180 178
400029274 B.K. Enterprises LLC Actual Days / 360 Year-Days 6.9125 4,880,000.00 120 117
400029282 MHVI Medical Center Actual Days / 360 Year-Days 7.1525 8,800,000.00 120 117
400029290 Whitehall Partnership Actual Days / 360 Year-Days 7.4025 1,475,000.00 120 117
400029291 Partridge Square, LLC 30 Month-Days / 360 Year-Days 7.2625 850,000.00 120 116
400029294 Wailuku Polaris, Inc. Actual Days / 360 Year-Days 6.9925 2,000,000.00 120 117
400029297 Towerview Condominium, LLC 30 Month-Days / 360 Year-Days 7.3525 1,360,000.00 120 117
400029299 Ogden Manor Associates Actual Days / 360 Year-Days 6.7125 4,000,000.00 120 117
400029300 Harrisonburg Inn Limited Partnershi Actual Days / 360 Year-Days 7.0225 2,800,000.00 120 119
400029304 Gateway Development, LLC Actual Days / 360 Year-Days 7.0925 1,100,000.00 120 118
400029306 UG Venture, LTD. Actual Days / 360 Year-Days 6.6925 3,950,000.00 120 118
400029308 BA Dallas Market Center I, L.P. Actual Days / 360 Year-Days 6.7825 13,000,000.00 120 117
400029309 W & B Properties, Inc. Actual Days / 360 Year-Days 7.0825 2,137,000.00 120 119
400029310 Airport Place Building, LLC Actual Days / 360 Year-Days 7.0825 2,100,000.00 120 119
400029311 Prime Plaza, Inc. Actual Days / 360 Year-Days 7.2725 1,600,000.00 120 118
400030866 Annapolis W.H. LLC, et al Actual Days / 360 Year-Days 7.0425 2,300,000.00 120 119
400030867 Arcadia Landmark Actual Days / 360 Year-Days 7.0825 5,470,000.00 120 118
400030868 GPI Cascades, Ltd. Actual Days / 360 Year-Days 6.9125 2,660,000.00 180 178
400030869 GPI Park Square, Ltd. Actual Days / 360 Year-Days 6.9125 1,100,000.00 180 178
400030870 GPI Park Ridge, Ltd. Actual Days / 360 Year-Days 6.9625 900,000.00 180 178
400030871 Padonia Park, LLC 30 Month-Days / 360 Year-Days 7.2925 1,400,000.00 240 238
400030875 Grand Rapids AFG, LLC Actual Days / 360 Year-Days 7.4225 3,750,000.00 120 118
400030876 Lansing AFG LLC Actual Days / 360 Year-Days 7.4125 3,700,000.00 120 118
400030880 Cavalier Associates, L.L.C. etal Actual Days / 360 Year-Days 7.6925 7,575,000.00 120 118
400030886 Ash Investment Company, LLC & Ja Actual Days / 360 Year-Days 7.6925 3,825,000.00 120 118
400030890 Pacific Mini-Storage Limited Partne Actual Days / 360 Year-Days 7.3225 2,800,000.00 120 119
400030893 1202 Airport Road Limited Partnersh Actual Days / 360 Year-Days 7.0225 2,000,000.00 120 119
400030896 Bend Towne Center Limited Partnersh Actual Days / 360 Year-Days 6.9825 4,000,000.00 120 119
400030913 761 Partnership, a New York General Actual Days / 360 Year-Days 7.0525 14,500,000.00 120 119
400030914 Lexington Lancaster LLC Actual Days / 360 Year-Days 6.8925 11,250,000.00 180 179
400030915 The Saddlery, LLP Actual Days / 360 Year-Days 7.1925 2,500,000.00 120 119
400030922 666 Pennsylvania Avenue Associates Actual Days / 360 Year-Days 6.8425 5,320,000.00 120 119
400030925 DEVON INVESTMENT, INC., a Florid Actual Days / 360 Year-Days 6.7825 1,750,000.00 120 119
400030934 Woodwinds Office Center, L.L.C. Actual Days / 360 Year-Days 7.0125 1,400,000.00 120 119
400030935 Nashville Heritage, LLC Actual Days / 360 Year-Days 7.1325 8,660,000.00 120 119
400030964 JAGI Cleveland - Hudson, LLC Actual Days / 360 Year-Days 7.9625 13,300,000.00 120 119
400030965 JAGI Cleveland-Independence,LLC Actual Days / 360 Year-Days 7.9625 21,800,000.00 120 119
400030966 JAGI NORTH CANTON, LLC. Actual Days / 360 Year-Days 7.9625 5,400,000.00 120 119
400030967 JAGI MONTROSE WEST, LLC Actual Days / 360 Year-Days 7.9625 3,500,000.00 120 119
400031048 Palm Springs Village Apts., L.P. 30 Month-Days / 360 Year-Days 6.9325 4,600,000.00 120 118
400031123 Whitewood Oaks Apartments, Inc. Actual Days / 360 Year-Days 6.8025 1,800,000.00 120 118
400031128 Hilgard Apartments 962, LLC Actual Days / 360 Year-Days 6.6625 3,000,000.00 144 143
ANADC Lowe Enterprises, Inc./Ohio Public Actual Days / 360 Year-Days 6.6225 47,000,000.00 120 120
I0074 Dime Circle, Ltd Actual Days / 360 Year-Days 7.2925 1,320,000.00 120 118
I0099 2800 Black Lake Place Associates Actual Days / 360 Year-Days 7.0425 1,800,000.00 120 119
L0137 Walber Broadway Co. Actual Days / 360 Year-Days 6.7825 15,000,000.00 120 112
L0149 Lake Natoma Lodging, L.P. Actual Days / 360 Year-Days 7.1425 8,100,000.00 120 117
L0171 RNA, LLC Actual Days / 360 Year-Days 7.9925 3,000,000.00 120 114
L0184 J & M Hospitality, Inc. Actual Days / 360 Year-Days 7.5825 2,075,000.00 120 117
L0200 The Impala Corporation Actual Days / 360 Year-Days 7.8125 2,135,000.00 120 116
L0202 CMLC, Inc. Actual Days / 360 Year-Days 7.7725 2,000,000.00 120 116
L0237 ZDZ, Inc. and Zandor Investments, L Actual Days / 360 Year-Days 7.1325 3,127,000.00 120 119
L0300 Marger, Inc. Actual Days / 360 Year-Days 7.6325 2,100,000.00 120 118
M0171 Fremont Gardens Investors LLC Actual Days / 360 Year-Days 7.3525 9,400,000.00 120 115
M0172 Roxbury Crossing Limited Partnershi Actual Days / 360 Year-Days 7.4125 625,000.00 120 115
M0220 Inwood Mansions, LLC Actual Days / 360 Year-Days 7.4525 1,325,000.00 120 114
M0262 Oakwood Heights Real Estate LP Actual Days / 360 Year-Days 7.0425 1,328,000.00 120 114
M0263 Country Acres Estates LP Actual Days / 360 Year-Days 7.0725 3,100,000.00 120 114
M0264 Executive East Apartments, LLC Actual Days / 360 Year-Days 7.0725 1,750,000.00 120 114
M0288 SV Apartments, LLC Actual Days / 360 Year-Days 7.0725 1,050,000.00 120 114
M0289 The Crossings Apartments LLC Actual Days / 360 Year-Days 7.0725 1,000,000.00 120 114
M0290 Geneva Place Limited Partnership Actual Days / 360 Year-Days 7.0425 1,325,000.00 120 114
M0330 John Montesano, LLC Actual Days / 360 Year-Days 6.8725 4,500,000.00 120 118
M0364 Riverchase Partners, L.P. Actual Days / 360 Year-Days 7.2225 960,000.00 120 119
M0415 Northridge Villa Investors LLC Actual Days / 360 Year-Days 7.1825 3,960,000.00 120 116
M0429 The Seasons Townhouses Limited Pa Actual Days / 360 Year-Days 7.2725 3,760,000.00 240 238
M0443 Treehouse of Jacksonville, Ltd. Actual Days / 360 Year-Days 6.7025 2,400,000.00 120 119
M0462 Cottonwood, LLC Actual Days / 360 Year-Days 6.6825 8,740,000.00 120 119
M0487 II Frances Place Apartments Partner Actual Days / 360 Year-Days 6.9525 2,945,000.00 240 239
M0514 Hobbit's Grove LLC Actual Days / 360 Year-Days 6.2425 11,850,000.00 120 119
M0537 Cedar Shores, Ltd. Actual Days / 360 Year-Days 6.7025 2,720,000.00 120 119
MH0020 Grand Valley Village LP & GVV Mobil Actual Days / 360 Year-Days 6.3625 4,350,000.00 120 120
MU0036 Landi, LLC Actual Days / 360 Year-Days 7.0125 1,930,000.00 120 120
MU0114 Landi, LLC Actual Days / 360 Year-Days 7.0125 615,000.00 120 120
O0090 Village Square of HSV, L.L.C. Actual Days / 360 Year-Days 7.5925 7,300,000.00 120 116
O0148 312 Marshall Limited Partnership Actual Days / 365 Year-Days 7.0925 6,600,000.00 120 113
O0179 Jayco Vista, LLC Actual Days / 360 Year-Days 7.2025 10,700,000.00 84 81
O0244 Talweg L.L.C. Actual Days / 360 Year-Days 7.1675 6,500,000.00 120 113
O0253 G & H Six, L.L.C. Actual Days / 360 Year-Days 7.7525 1,350,000.00 120 117
O0259 1501 Harbor Bay, L.P. Actual Days / 360 Year-Days 7.0425 3,375,000.00 120 113
O0265 Vornado-Westport L.L.C. Actual Days / 360 Year-Days 7.0925 8,000,000.00 120 112
O0311 Dunwoody Park Partners, Inc. Actual Days / 360 Year-Days 7.0725 9,500,000.00 120 115
O0320 Medical Landmark I & The Rehabilita Actual Days / 360 Year-Days 7.5655 9,400,000.00 120 116
O0348 Liberty 2000 Investors, Ltd. Actual Days / 360 Year-Days 7.4025 1,350,000.00 120 118
O0359 Concord Management Ltd., et al Actual Days / 360 Year-Days 6.9725 4,500,000.00 120 119
O0393 Brit Limited Partnership Actual Days / 360 Year-Days 7.1225 2,880,000.00 120 116
O0422 Enterprise Center Properties, Inc. Actual Days / 360 Year-Days 6.9725 3,600,000.00 120 120
O0541 Ace Allen Actual Days / 360 Year-Days 7.3225 1,150,000.00 120 119
R0134 Hardscrabble, LLC Actual Days / 360 Year-Days 7.0325 5,650,000.00 240 231
R0254 Silver Spring Plaza Corp. Actual Days / 360 Year-Days 7.1125 2,175,000.00 120 114
R0280 K.M. Valdosta Associates Actual Days / 360 Year-Days 7.1325 9,440,000.00 260 251
R0297 New Country Corners LP Actual Days / 360 Year-Days 7.2625 6,500,000.00 120 116
R0304 Alturas Partners Actual Days / 360 Year-Days 7.0225 3,600,000.00 120 114
R0311 The Lakes - Folsom, LLC Actual Days / 360 Year-Days 7.2625 5,250,000.00 120 116
R0315 Kentucky Development Venture I Actual Days / 360 Year-Days 6.8925 4,200,000.00 120 118
R0412 G.W.C.H. Limited Partnership Actual Days / 360 Year-Days 7.5025 1,475,000.00 120 116
R0421 Fairbanks Equity, Ltd. Actual Days / 360 Year-Days 7.4525 12,500,000.00 180 175
R0458 Dexter Ridge Shopping Center, L.L.C Actual Days / 360 Year-Days 7.1025 3,700,000.00 240 239
R0463 Ruston Center, L.L.C. Actual Days / 360 Year-Days 6.9625 4,850,000.00 120 120
R0464 Sunshine Heights, L.L.C. Actual Days / 360 Year-Days 7.3325 4,500,000.00 120 117
R0480 BB Westland Associates, LLC Actual Days / 360 Year-Days 7.4025 1,800,000.00 120 119
R0497 Canary Creek Shoppes LLC Actual Days / 360 Year-Days 7.1925 1,475,000.00 120 119
R0514 Metzerott Plaza, Inc. Actual Days / 360 Year-Days 6.9725 5,120,000.00 120 117
R0533 JAH Investments, LLC Actual Days / 360 Year-Days 7.1725 4,400,000.00 240 238
R0559 BC Investments - Lincoln LLC Actual Days / 360 Year-Days 7.0725 4,965,000.00 248 246
R0597 BenCen Limited Partnership Actual Days / 360 Year-Days 7.2225 2,460,000.00 120 119
R0633 Newton Land Corporation Actual Days / 360 Year-Days 6.9625 1,625,000.00 240 238
R0634 Newton Land Corporation Actual Days / 360 Year-Days 6.9625 800,000.00 240 238
R0743 Town Center Shoppes, Ltd. Actual Days / 360 Year-Days 6.7025 3,240,000.00 240 239
R0807 Fla II Trustee, Inc. 30 Month-Days / 360 Year-Days 6.6425 1,875,000.00 237 236
R0886 Landi, LLC Actual Days / 360 Year-Days 7.0125 560,000.00 120 120
R0887 Landi, LLC Actual Days / 360 Year-Days 7.0125 1,145,000.00 120 120
SP007 H.M. Holdings, Inc. etal Actual Days / 360 Year-Days 8.1925 21,000,000.00 119 113
SkyII 15th Skyline Assoc. LP & 9th Skylin Actual Days / 360 Year-Days 6.9215 87,700,000.00 122 118
ACS Americold Real Estate, L.P. Actual Days / 360 Year-Days 6.7665 148,500,000.00 120 115
AIM-1 VMS National Properties Actual Days / 360 Year-Days 8.3725 110,000,000.00 120 111
</TABLE>
<TABLE>
<CAPTION>
Original Remaining
-------- ---------
Loan Amortization Amortization Cut-Off Date Cut-off Servicing
---- ------------ ------------ ------------ ------- ---------
Number Borrower Name Maturity Date Term Term Balance Date LTV Fee
------ ------------- ------------- ---- ---- ------- -------- ---
<S> <C> <C> <C> <C> <C> <C> <C>
07-0000000 Ming Avenue Limited Partnership 07/01/18 240 237 1,493,091.77 47 0.1275
09-0001031 PDL, Inc. & Associates, LC 05/11/28 360 355 17,443,569.19 79 0.1275
09-0001032 Colonial Plaza Associates, LLC 01/31/13 177 172 1,475,073.96 87 0.1275
09-0001034 Concourse Plaza II, LTD. 04/01/08 360 354 1,593,060.83 71 0.1275
09-0001035 Marks/Bloom McKinney Apts., Ltd. 04/01/08 360 354 693,473.85 79 0.1275
09-0001036 Marks/Bloom McKinney Apts., Ltd. 04/01/08 360 354 587,761.39 79 0.1275
09-0001037 WVM Partners, Ltd. 05/01/08 360 355 10,165,354.40 68 0.1275
09-0001038 Brandon Lakes Plaza, Ltd. 05/01/08 360 355 2,352,188.46 75 0.1275
09-0001039 Salina Street Development, LLC 05/01/17 228 223 1,761,928.29 97 0.1275
09-0001040 Bercar II LLC 05/01/08 360 355 12,457,214.01 70 0.1275
09-0001041 Affordable I, L.L.C. 05/01/28 360 355 6,776,724.40 74 0.1275
09-0001042 Texas Briarwood Village Apts, Ltd. 04/10/08 360 354 9,756,251.02 81 0.1275
09-0001044 Florida Housing Corp. et al 05/01/08 300 295 4,986,189.47 80 0.1275
09-0001045 2002-2006 Ellis Avenue Corp. 05/01/08 360 355 2,990,018.39 70 0.1275
09-0001046 Stoneville Investment Properties, L 07/01/18 240 237 1,568,072.54 80 0.1275
09-0001051 Town View Apartments, L.P. 07/01/08 360 357 2,036,057.71 85 0.1275
09-0001053 Rowayton Marine Realty, LLC 06/01/08 360 356 3,440,723.57 75 0.1275
09-0001054 PSPR, Inc. 06/01/18 240 236 1,539,964.38 70 0.1275
09-0001055 CDI Centre, L.L.C. 06/10/08 360 355 7,981,111.60 77 0.1275
09-0001056 Sonesta West LLC 06/01/08 360 356 2,942,495.64 75 0.1275
09-0001057 FGR & DY Realty, Johnson City, LLC 01/31/19 246 243 1,193,353.91 62 0.1275
09-0001058 Five N's, Inc. 06/01/10 144 140 1,180,618.34 58 0.1275
09-0001059 Rama Hotel Corporation 06/01/08 300 296 1,593,764.45 72 0.1275
09-0001060 M.K.K. Hotel Corporation 06/01/18 240 236 1,341,429.53 67 0.1275
09-0001061 Canton Street Development, LLC 08/01/17 230 226 1,812,182.69 97 0.1275
09-0001062 Par Realty Group, Inc. 06/01/18 240 236 2,805,041.69 71 0.1275
09-0001063 Rivertech Associates Limited Partne 06/01/08 360 356 4,487,380.79 64 0.1275
09-0001064 Manir Properties 06/01/18 240 236 3,376,989.29 63 0.1275
09-0001065 Saunders New Mexico Properties LLC 06/01/08 300 296 5,377,413.61 90 0.1275
09-0001066 S.S.N.H.R., Inc. 06/01/08 300 296 6,972,027.84 55 0.1275
09-0001067 Shree Narayan, Inc. 07/01/18 240 237 2,487,245.40 73 0.1275
09-0001069 Yogi Investments, L.L.C. 07/01/18 240 237 994,951.78 75 0.1275
09-0001070 Number One Sierra, Ltd. 07/01/08 360 357 1,796,427.15 86 0.1275
09-0001071 Jagdish Investment Group, Inc. 07/01/18 240 237 1,691,511.81 72 0.1275
09-0001072 Angleton Investments, Ltd. 07/01/08 360 357 1,686,725.30 59 0.1275
09-0001073 Ridgecrest Shopping Center, LTD 07/01/08 300 297 1,365,668.01 55 0.1275
09-0001074 Laxim Hotels, Inc. 07/01/18 240 237 1,790,985.17 70 0.1275
09-0001075 Shadow Glen Apartments, LLC 07/01/08 360 357 1,061,976.89 86 0.1275
09-0001076 Intervest-First Place Tulsa LP 06/11/08 360 356 32,909,935.58 73 0.1275
09-0001077 Cosmo, Inc. 07/01/08 300 297 798,086.54 57 0.1275
09-0001079 Vikas Hotels, Inc. 07/01/18 240 237 1,691,338.31 69 0.1275
09-0001080 Akanksha, Inc. 07/01/18 240 237 1,641,537.47 68 0.1275
09-0001081 Shri Nath, L.L.C. 07/01/18 240 237 1,815,713.70 75 0.1275
09-0001082 Colorado Place Limited Partnership 07/01/08 360 357 5,470,880.14 90 0.1275
09-0001083 Nikita Investment Corporation 07/01/08 300 297 1,695,178.04 74 0.1275
09-0001084 Fort Worth Credit Partners, LTD 07/01/08 360 357 2,270,721.07 77 0.1275
09-0001085 41st Street Partners, L.P. 08/01/28 360 358 1,548,047.23 77 0.1275
09-0001086 O,M-Bernardo Industrial, Ltd. 07/01/28 360 357 3,443,723.58 73 0.1275
09-0001087 1709 SOUTHLAKE OAKS, LTD 08/01/08 360 358 2,296,827.63 80 0.1275
09-0001088 Franklin Hospitality Group, Inc. 09/01/18 240 239 1,996,350.94 70 0.1275
09-0001091 Larchmont Boulevard Building, Ltd. 08/01/08 360 358 1,398,102.24 74 0.1275
09-0001093 SKN Properties, LLC 07/01/18 240 237 1,455,281.69 75 0.1275
09-0001094 Marvin & Donna Cavaness Family Tru 07/01/13 180 177 1,168,919.93 49 0.1275
09-0001095 Domain NZ Partners Limited Partners 07/01/08 360 357 1,497,093.46 71 0.1275
09-0001096 Pasha, Inc. 07/01/08 300 297 1,758,067.01 73 0.1275
09-0001097 Felix Payal "LLC" 07/01/18 240 237 1,442,689.81 74 0.1275
09-0001098 Jay Bhagwan, Inc. 07/01/18 240 237 2,984,593.27 59 0.1275
09-0001099 Four Winds, Inc. 07/01/08 300 297 21,308,138.43 62 0.1275
09-0001100 FW of Saratoga, Inc. 07/01/08 300 297 10,130,098.58 55 0.1275
09-0001101 Medallion Bellevue Inn, L.L.C. 08/01/23 300 298 10,127,154.87 63 0.1275
09-0001102 8th and Pine Joint Venture 08/01/23 300 298 13,468,953.81 62 0.1275
09-0001104 BEENA, Inc. 08/01/18 240 238 3,662,007.80 75 0.1275
09-0001105 Jay Ambe, Inc. 08/01/08 300 298 1,347,305.91 73 0.1275
09-0001106 Hearthside Skilled Nursing Facility 08/01/08 300 298 2,515,133.74 50 0.1275
09-0001107 Southgate, Inc. 08/01/08 360 358 2,981,475.39 62 0.1275
09-0001110 13405 Stemmons, Ltd. 09/01/23 300 299 4,195,166.10 67 0.1275
09-0001111 All-Coast Enterprises Inc. 09/01/08 360 359 3,697,090.61 80 0.1275
09-0001112 502 East Highland Partners, L.P. 08/01/08 360 358 1,917,423.21 80 0.1275
09-0001113 Arshco, Inc. 08/01/18 240 238 2,615,894.70 65 0.1275
09-0001114 EP Acquisition L.P. 08/01/23 300 298 3,093,474.45 61 0.1275
09-0001115 Vance Hotel Associates Limited Part 08/01/23 300 298 12,473,934.96 70 0.1275
09-0001116 The Westcoast Benson Hotel Limited 08/01/23 300 298 24,447,348.54 71 0.1275
09-0001117 LTC-Ohio, Inc. 09/01/08 300 299 17,379,422.31 65 0.1275
09-0001118 Trupti, LLC 08/01/18 240 238 1,454,942.15 75 0.1275
09-0001119 Golden-T Holdings, Inc. 08/01/18 240 238 1,669,270.69 59 0.1275
09-0001120 Gulab, Inc. 08/01/18 240 238 1,195,826.99 75 0.1275
09-0001122 TMP Investments, Inc. 08/01/08 360 358 14,180,655.35 81 0.1275
09-0001123 Springdale Villa L.P. 08/01/08 360 358 10,035,228.58 79 0.1275
09-0001124 Jaymine Enterprises, Inc. 09/01/18 260 259 1,996,313.77 69 0.1275
09-0001128 FSH Associates LP 09/01/28 360 359 25,580,578.72 80 0.1275
09-0001130 Spring Park Plaza Associates Limite 09/01/08 300 299 3,196,130.33 62 0.1275
09-0001132 Globe Corporation 09/01/08 300 299 1,947,812.59 65 0.1275
09-0001133 Consolidated Storage Properties, In 09/01/08 300 299 5,493,370.11 69 0.1275
09-0001134 Gokul, Inc., a Virginia corporation 09/01/18 240 239 2,096,072.42 72 0.1275
09-0001135 S.W. Farmington, Inc. 09/01/08 300 299 7,571,275.97 72 0.1275
09-0001136 S.W. Roswell, Inc. 09/01/08 300 299 5,805,916.67 75 0.1275
09-0001137 S.W. Grants, Inc. 09/01/08 300 299 1,533,233.33 64 0.1275
09-0001138 S.W. Gallup, Inc. 09/01/08 300 299 4,379,953.18 75 0.1275
09-0001139 Malkus, Inc., a Florida Corporation 09/01/18 240 239 2,695,040.37 75 0.1275
09-0001140 Nirab Amare, L.L.C. 09/01/18 240 239 3,633,283.51 69 0.1275
09-0001141 Kush, Inc. 09/01/18 240 239 1,297,574.11 67 0.1275
09-0001142 Westheimer Hospitality, L.L.C. 09/01/18 240 239 2,445,355.57 75 0.1275
09-0001147 T.C. Hospitality, Inc. 09/01/13 180 179 1,395,551.73 46 0.1275
09-0001160 Patro, Ltd. 10/01/08 360 360 4,050,000.00 82 0.1275
09-0001163 Lancaster Mobile Homes Estates Limi 10/01/08 360 360 3,000,000.00 48 0.1275
09-0001167 Centerra Marketplace, Inc. 10/01/18 240 240 6,514,000.00 69 0.1275
09-0001168 Clearview - Kenosha, LLC 10/01/08 360 360 21,500,000.00 79 0.1275
09-1001006 EPT DownREIT II, Inc. 07/11/28 360 357 104,748,391.85 62 0.1275
400027540 Phoenix Construction, Inc. 08/01/12 360 346 3,219,025.80 78 0.1275
400027560 Concord Summit, LTD. 11/01/17 240 229 2,747,661.62 74 0.1275
400028210 Royal Village, L.L.C. 06/01/12 300 284 3,470,312.76 73 0.1275
400028225 APA III LTD. 07/01/04 360 345 18,780,204.30 77 0.1275
400028228 Sterling Ponds Shopping Center, LLC 09/01/07 300 287 8,132,960.23 79 0.1275
400028269 Westmoor I, LTD. 04/01/08 360 354 2,140,966.21 78 0.1275
400028275 R & W Arizona Properties, L.L.C. 01/01/28 360 351 10,524,052.20 73 0.1275
400028277 Kenneth L. Shimm 12/01/07 360 350 7,641,680.82 73 0.1275
400028286 Zephyr Hills Limited Partnership 02/01/08 240 232 1,970,285.14 74 0.1275
400028304 Thirty Six Hundred LP 01/01/13 360 351 3,476,590.00 63 0.1275
400028305 Bowman Business Park, L.L.C. 03/01/08 360 353 3,628,728.27 67 0.1275
400029116 Cafferty Stoneybrook Associates, L. 01/01/18 240 231 3,195,298.50 71 0.1275
400029119 6011 Durand Associates 03/01/08 360 353 2,585,169.41 73 0.1275
400029121 Saxon Enterprises, Inc. 03/01/08 360 353 3,723,851.94 69 0.1275
400029126 Shiloh Place I, Ltd. 03/01/08 300 293 1,190,197.00 74 0.1275
400029129 Imperial Hawthorne Limited Partners 02/01/08 360 352 3,675,091.17 67 0.1275
400029134 Middletown Properties Co. Limited 03/01/08 360 353 4,474,681.01 72 0.1275
400029137 Shirley Court Holdings, L.P. 03/01/08 300 293 3,568,243.16 79 0.1275
400029139 Prospect Venture, L.P. 03/01/25 324 317 5,161,626.68 79 0.1275
400029140 Select Sites of Attleborough, Inc. 03/01/13 300 293 1,636,456.97 74 0.1275
400029141 Willow Run Business Center I, L.L.C 01/01/18 240 231 19,682,136.95 58 0.1275
400029143 Marketplace East Associates LP 04/01/05 360 354 3,066,250.29 79 0.1275
400029145 West Pacific Development 02/01/08 300 292 2,376,404.04 65 0.1275
400029147 American National Bank and Trust Co 03/01/08 360 353 4,117,998.37 74 0.1275
400029148 Grand Rapids Associates LP 03/01/08 360 353 2,237,140.75 69 0.1275
400029149 Ames Business Center, L.L.P. 03/01/08 360 353 2,933,499.26 73 0.1275
400029150 Harry H. Hahamovitch 01/01/08 240 231 1,474,881.68 74 0.1275
400029154 901 Argyle Partnership 04/01/08 360 353 3,093,076.35 79 0.1275
400029155 Hopedale Business Park Corporation 03/01/08 300 293 1,488,536.31 73 0.1275
400029156 Megapolis, Corporation 05/01/08 360 355 2,091,693.07 75 0.1275
400029157 BBR Realty Partners, LP 02/01/08 300 292 2,479,427.09 69 0.1275
400029158 B/P Investments, Inc. 03/01/08 300 293 2,829,759.43 66 0.1275
400029160 10201 Olde School, L.L.C. 04/01/08 300 294 2,283,456.62 67 0.1275
400029161 W-W Mill Plain Limited Partnership 05/01/08 360 355 4,979,828.59 61 0.1275
400029162 Featherstone Associates, LP 03/01/07 360 353 2,190,119.53 71 0.1275
400029163 Fresno Clinton Way Operating Ass. L 04/01/05 360 354 2,689,283.59 75 0.1275
400029164 Milton Associates S.C., Inc. 03/31/08 300 293 3,476,093.44 71 0.1275
400029166 Property Operations, Inc., as Trust 03/01/08 300 293 4,317,461.30 66 0.1275
400029167 PO Limited Partnership 02/01/13 180 172 1,950,313.63 40 0.1275
400029168 Ira L. Giddens, Inc. 03/01/08 300 293 1,537,777.58 72 0.1275
400029169 Braden Creek L.L.C. 02/01/08 360 352 4,720,294.41 79 0.1275
400029171 Freeway Properties III 03/01/08 360 353 4,975,195.73 67 0.1275
400029172 The Armory LLC 05/01/08 360 355 5,707,688.86 76 0.1275
400029173 Udolf Investments, LLC 05/01/08 300 295 4,274,866.77 64 0.1275
400029174 Partridge Square, LLC 05/01/08 360 355 1,593,770.01 74 0.1275
400029178 422 Mystic Avenue Realty, L.L.C. 04/01/08 360 354 3,482,938.63 79 0.1275
400029180 SRK Blue Ash Associates Limited 03/01/08 300 293 1,427,639.51 71 0.1275
400029181 Benchmark Stuyvesant Associates LP 04/01/08 300 294 3,461,513.70 74 0.1275
400029182 Windward Realty Trust 05/01/08 360 355 1,494,043.04 75 0.1275
400029183 Fairlawn Gardens Corp. 04/01/08 360 354 2,290,024.94 76 0.1275
400029184 La Porte Properties, L.L.C. 03/01/08 300 293 5,366,848.33 69 0.1275
400029185 CKL Realty. Ltd. 04/01/08 360 354 1,752,513.92 76 0.1275
400029186 Stornaway LLC 05/01/08 360 355 2,742,573.99 66 0.1275
400029187 Donovan LLC 05/01/08 360 355 2,418,451.63 65 0.1275
400029188 Lillian Cove, LLC 04/01/16 216 210 1,657,161.50 79 0.1275
400029189 83 LLC 04/01/08 360 354 3,011,912.38 73 0.1275
400029190 Ganpati Hospitality, Inc. 04/01/08 300 294 3,161,534.18 73 0.1275
400029191 WB Properties Trust 06/01/08 360 356 1,955,114.97 73 0.1275
400029192 Rescom-Avery, LLC 04/01/08 360 354 2,374,904.91 72 0.1275
400029194 Mil-Pine Plaza Associates LP 05/01/08 300 295 2,287,334.34 59 0.1275
400029196 Little Neck Commons, LLC 06/01/08 324 320 1,973,590.52 68 0.1275
400029197 Renaissance Campanelli, LLC 06/01/08 300 296 2,987,165.77 74 0.1275
400029199 Thompson Associates 05/01/08 240 235 2,378,399.77 69 0.1275
400029200 Exchange Street Parking Associates, 05/01/08 180 175 4,433,463.01 72 0.1275
400029201 D.P. Associates, Limited Partnershi 05/01/08 300 295 2,368,055.34 72 0.1275
400029202 York Properties of Houston, L.L.C. 04/01/08 360 354 4,540,698.73 80 0.1275
400029204 Victor R. Young and Patricia C. You 04/01/08 360 354 2,241,531.92 77 0.1275
400029205 Walden Properties, LLC 05/01/08 360 355 6,075,342.45 73 0.1275
400029206 8304 Sherwick Court L.P. 06/01/08 240 236 1,602,130.61 73 0.1275
400029207 Northway Plaza Associates, LLC 06/01/08 360 356 12,765,411.20 77 0.1275
400029208 98 Summit, L.L.C. 04/01/08 360 354 2,190,202.35 84 0.1275
400029209 Centennial Square Retail L.L.C. 06/01/08 300 296 2,638,535.29 74 0.1275
400029210 Romar Investors LLC 06/01/08 360 356 1,047,308.49 62 0.1275
400029211 Mt. Zion Decatur, LLC 05/01/08 300 295 2,069,886.49 61 0.1275
400029212 Sterling Ponds Shopping Center, LLC 09/01/07 293 287 2,681,198.50 79 0.1275
400029213 Hallendale Professional Park 06/01/08 360 356 2,992,270.87 72 0.1275
400029214 NVIEMPIRE SPE LLC 05/01/08 240 235 4,363,850.76 53 0.1275
400029215 NVIBBR, LTD. CO. 05/01/08 240 235 2,082,746.97 66 0.1275
400029216 Central Holdings Properties, LLC 07/01/08 300 297 2,193,084.52 70 0.1275
400029217 38-Britcher, L.L.C. 06/01/18 240 236 3,773,849.59 77 0.1275
400029218 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 5,832,189.42 79 0.1275
400029219 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 2,542,236.41 56 0.1275
400029220 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 6,839,114.39 76 0.1275
400029221 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 6,201,062.91 71 0.1275
400029222 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 3,868,187.17 61 0.1275
400029223 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 3,240,105.23 60 0.1275
400029224 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 9,919,706.75 72 0.1275
400029225 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 1,674,885.16 62 0.1275
400029226 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 4,496,269.06 68 0.1275
400029227 T.L.S. NYC Real Estate, LLC 06/01/08 360 356 3,260,044.34 72 0.1275
400029228 Canyon Road Galleries, Inc. 05/01/08 300 295 1,492,202.28 71 0.1275
400029232 Riverside Village Investments, LLC 06/01/08 360 356 3,988,672.50 78 0.1275
400029233 G-WHIS/BELLMEAD, L.P. 06/01/08 300 296 1,692,451.60 74 0.1275
400029234 Center of Clewiston Land Trust 06/01/08 360 356 3,461,127.78 71 0.1275
400029235 440 East Sample Road, Inc. 06/01/08 300 296 1,244,632.36 75 0.1275
400029236 Lomond Place, LLC 06/01/08 288 284 2,586,639.26 74 0.1275
400029237 PTW Holding LLLP 07/01/08 300 297 4,583,606.72 74 0.1275
400029238 Pulaski 3800 Storage LLLP 07/01/08 300 297 2,291,738.13 72 0.1275
400029246 Columbia East Dundee II, Limited Pa 07/05/08 360 357 524,068.17 73 0.1275
400029248 6800 Associates Limited Partnership 06/01/16 216 212 1,636,144.47 73 0.1275
400029250 Farragut Acquisition Partners I, LP 06/01/08 300 296 3,143,720.44 77 0.1275
400029251 Poplar Center Development, Ltd. 07/01/08 360 357 5,338,719.53 68 0.1275
400029252 Triad Lauderdale Limited 06/01/08 300 296 3,830,519.22 74 0.1275
400029253 J & D 1616, LLC 08/01/08 360 358 1,098,549.38 71 0.1275
400029255 J & D Woodward Village, LLC 06/01/08 360 356 6,433,298.05 79 0.1275
400029257 Indian Lookout Apartments, Limited 06/01/08 360 356 4,786,473.35 79 0.1275
400029258 C & H Development/Concord 07/01/08 360 357 1,825,875.53 79 0.1275
400029262 Coldwell Building General Partnersh 07/01/08 300 297 4,486,242.38 55 0.1275
400029267 301 West Broad Street Limited Partn 08/01/13 180 178 3,189,385.68 82 0.1275
400029274 B.K. Enterprises LLC 07/01/08 360 357 4,869,948.99 80 0.1275
400029282 MHVI Medical Center 07/01/08 360 357 8,782,994.05 79 0.1275
400029290 Whitehall Partnership 07/01/08 300 297 1,470,571.13 75 0.1275
400029291 Partridge Square, LLC 06/01/08 300 296 846,018.82 62 0.1275
400029294 Wailuku Polaris, Inc. 07/01/08 240 237 1,989,378.90 59 0.1275
400029297 Towerview Condominium, LLC 07/01/08 300 297 1,355,305.08 80 0.1275
400029299 Ogden Manor Associates 07/01/08 360 357 3,991,323.54 62 0.1275
400029300 Harrisonburg Inn Limited Partnershi 09/01/08 300 299 2,796,624.78 73 0.1275
400029304 Gateway Development, LLC 08/01/08 300 298 1,097,591.45 65 0.1275
400029306 UG Venture, LTD. 08/01/08 360 358 3,944,024.44 76 0.1275
400029308 BA Dallas Market Center I, L.P. 07/01/08 300 297 12,955,915.53 60 0.1275
400029309 W & B Properties, Inc. 09/01/08 240 239 2,133,001.23 75 0.1275
400029310 Airport Place Building, LLC 09/01/08 300 299 2,097,492.63 78 0.1275
400029311 Prime Plaza, Inc. 08/01/08 300 298 1,596,614.47 75 0.1275
400030866 Annapolis W.H. LLC, et al 09/01/08 300 299 2,297,236.29 72 0.1275
400030867 Arcadia Landmark 08/01/08 300 298 5,458,000.66 55 0.1275
400030868 GPI Cascades, Ltd. 08/01/13 360 358 2,656,184.08 80 0.1275
400030869 GPI Park Square, Ltd. 08/01/13 360 358 1,098,421.99 60 0.1275
400030870 GPI Park Ridge, Ltd. 08/01/13 360 358 898,724.58 70 0.1275
400030871 Padonia Park, LLC 08/01/18 240 238 1,394,877.71 47 0.1275
400030875 Grand Rapids AFG, LLC 08/01/08 300 298 3,742,283.73 77 0.1275
400030876 Lansing AFG LLC 08/01/08 300 298 3,692,372.13 78 0.1275
400030880 Cavalier Associates, L.L.C. etal 08/01/08 300 298 7,560,200.80 73 0.1275
400030886 Ash Investment Company, LLC & Ja 08/01/08 300 298 3,817,527.15 75 0.1275
400030890 Pacific Mini-Storage Limited Partne 09/01/08 300 299 2,796,782.56 53 0.1275
400030893 1202 Airport Road Limited Partnersh 09/01/08 360 359 1,998,408.53 64 0.1275
400030896 Bend Towne Center Limited Partnersh 09/01/08 300 299 3,995,147.53 68 0.1275
400030913 761 Partnership, a New York General 09/01/08 360 359 14,488,530.28 72 0.1275
400030914 Lexington Lancaster LLC 09/01/13 360 359 11,240,814.80 74 0.1275
400030915 The Saddlery, LLP 09/01/08 360 359 2,498,076.73 83 0.1275
400030922 666 Pennsylvania Avenue Associates 09/01/08 360 359 5,315,613.36 72 0.1275
400030925 DEVON INVESTMENT, INC., a Florid 09/01/08 300 299 1,747,808.74 74 0.1275
400030934 Woodwinds Office Center, L.L.C. 09/01/08 300 299 1,398,309.71 72 0.1275
400030935 Nashville Heritage, LLC 09/01/08 360 359 8,653,257.78 81 0.1275
400030964 JAGI Cleveland - Hudson, LLC 09/01/08 300 299 13,286,218.40 71 0.1275
400030965 JAGI Cleveland-Independence,LLC 09/01/08 300 299 21,777,410.60 86 0.1275
400030966 JAGI NORTH CANTON, LLC. 09/01/08 300 299 5,394,404.46 60 0.1275
400030967 JAGI MONTROSE WEST, LLC 09/01/08 300 299 3,496,373.26 64 0.1275
400031048 Palm Springs Village Apts., L.P. 08/01/08 360 358 4,592,525.74 76 0.1275
400031123 Whitewood Oaks Apartments, Inc. 08/01/08 360 358 1,797,347.98 78 0.1275
400031128 Hilgard Apartments 962, LLC 09/01/10 360 359 2,997,437.22 75 0.1275
ANADC Lowe Enterprises, Inc./Ohio Public 10/11/08 300 47,000,000.00 54 0.1275
I0074 Dime Circle, Ltd 08/01/08 360 358 1,318,277.10 64 0.1275
I0099 2800 Black Lake Place Associates 09/01/08 360 359 1,798,573.35 74 0.1275
L0137 Walber Broadway Co. 02/01/08 15,000,000.00 52 0.1275
L0149 Lake Natoma Lodging, L.P. 07/01/08 300 297 8,074,387.18 68 0.1275
L0171 RNA, LLC 03/31/08 300 294 2,983,179.27 74 0.1275
L0184 J & M Hospitality, Inc. 07/01/08 300 297 2,068,992.50 77 0.1275
L0200 The Impala Corporation 06/01/08 300 296 2,126,792.02 71 0.1275
L0202 CMLC, Inc. 06/01/08 300 296 1,992,250.89 69 0.1275
L0237 ZDZ, Inc. and Zandor Investments, L 09/01/08 300 299 3,123,296.03 74 0.1275
L0300 Marger, Inc. 08/01/08 276 274 2,094,922.31 68 0.1275
M0171 Fremont Gardens Investors LLC 05/01/08 360 355 9,370,479.37 71 0.1275
M0172 Roxbury Crossing Limited Partnershi 05/01/08 300 295 621,813.64 69 0.1275
M0220 Inwood Mansions, LLC 04/01/08 360 354 1,319,949.68 73 0.1275
M0262 Oakwood Heights Real Estate LP 04/01/08 360 354 1,322,392.40 80 0.1275
M0263 Country Acres Estates LP 04/01/08 360 354 3,087,006.64 79 0.1275
M0264 Executive East Apartments, LLC 04/01/08 360 354 1,742,664.68 76 0.1275
M0288 SV Apartments, LLC 04/01/08 360 354 1,045,599.41 73 0.1275
M0289 The Crossings Apartments LLC 04/01/08 360 354 995,808.82 74 0.1275
M0290 Geneva Place Limited Partnership 04/01/08 360 354 1,319,404.83 79 0.1275
M0330 John Montesano, LLC 08/01/08 360 358 4,493,480.97 79 0.1275
M0364 Riverchase Partners, L.P. 09/01/08 360 359 959,265.87 80 0.1275
M0415 Northridge Villa Investors LLC 06/01/08 360 356 3,949,299.16 81 0.1275
M0429 The Seasons Townhouses Limited Pa 08/01/18 240 238 3,746,987.23 79 0.1275
M0443 Treehouse of Jacksonville, Ltd. 09/01/08 360 359 2,397,965.81 80 0.1275
M0462 Cottonwood, LLC 09/01/08 360 359 8,732,563.01 77 0.1275
M0487 II Frances Place Apartments Partner 09/01/18 240 239 2,939,401.31 76 0.1275
M0514 Hobbit's Grove LLC 09/01/08 360 359 11,839,013.91 74 0.1275
M0537 Cedar Shores, Ltd. 09/01/08 360 359 2,717,694.58 80 0.1275
MH0020 Grand Valley Village LP & GVV Mobil 10/01/08 300 300 4,350,000.00 75 0.1275
MU0036 Landi, LLC 10/01/08 300 300 1,930,000.00 69 0.1275
MU0114 Landi, LLC 10/01/08 300 300 615,000.00 62 0.1275
O0090 Village Square of HSV, L.L.C. 06/01/08 360 356 7,282,222.99 72 0.1275
O0148 312 Marshall Limited Partnership 02/28/08 360 353 6,565,267.15 66 0.2275
O0179 Jayco Vista, LLC 07/01/05 360 357 10,679,599.83 79 0.1275
O0244 Talweg L.L.C. 02/28/08 360 353 6,469,537.85 68 0.1275
O0253 G & H Six, L.L.C. 07/01/08 300 297 1,346,225.39 64 0.1275
O0259 1501 Harbor Bay, L.P. 02/28/08 360 353 3,358,672.94 67 0.1275
O0265 Vornado-Westport L.L.C. 02/01/08 8,000,000.00 49 0.1275
O0311 Dunwoody Park Partners, Inc. 05/01/08 360 355 9,467,897.29 70 0.1275
O0320 Medical Landmark I & The Rehabilita 06/01/28 360 356 9,376,947.66 58 0.1275
O0348 Liberty 2000 Investors, Ltd. 08/01/08 360 358 1,348,285.63 75 0.1275
O0359 Concord Management Ltd., et al 09/01/08 360 359 4,496,383.56 75 0.1275
O0393 Brit Limited Partnership 06/01/08 360 356 2,872,295.10 80 0.2275
O0422 Enterprise Center Properties, Inc. 10/01/08 360 360 3,600,000.00 75 0.1275
O0541 Ace Allen 09/01/08 300 299 1,148,678.55 60 0.1275
R0134 Hardscrabble, LLC 12/31/17 240 231 5,555,331.59 76 0.1275
R0254 Silver Spring Plaza Corp. 04/01/08 360 354 2,165,972.98 75 0.1275
R0280 K.M. Valdosta Associates 08/31/19 260 251 9,307,091.94 79 0.1275
R0297 New Country Corners LP 06/01/08 360 356 6,482,782.62 80 0.1275
R0304 Alturas Partners 04/01/08 360 354 3,584,724.85 72 0.1275
R0311 The Lakes - Folsom, LLC 06/01/08 360 356 5,236,093.38 75 0.1275
R0315 Kentucky Development Venture I 07/31/08 360 358 4,193,945.59 74 0.1275
R0412 G.W.C.H. Limited Partnership 06/01/08 300 296 1,468,980.76 73 0.1275
R0421 Fairbanks Equity, Ltd. 05/01/13 360 355 12,461,778.14 81 0.1275
R0458 Dexter Ridge Shopping Center, L.L.C 09/01/18 240 239 3,693,093.41 69 0.1275
R0463 Ruston Center, L.L.C. 10/01/08 360 360 4,850,000.00 71 0.1275
R0464 Sunshine Heights, L.L.C. 07/01/08 360 357 4,491,719.15 75 0.1275
R0480 BB Westland Associates, LLC 09/01/08 360 359 1,798,672.17 75 0.1275
R0497 Canary Creek Shoppes LLC 09/01/08 360 359 1,473,865.28 68 0.1275
R0514 Metzerott Plaza, Inc. 07/01/08 360 357 5,109,619.44 80 0.1275
R0533 JAH Investments, LLC 08/01/18 240 238 4,384,561.60 75 0.1275
R0559 BC Investments - Lincoln LLC 04/01/19 247 245 4,948,330.47 75 0.1275
R0597 BenCen Limited Partnership 09/01/08 360 359 2,458,118.79 72 0.1275
R0633 Newton Land Corporation 08/01/18 240 238 1,619,132.70 73 0.1275
R0634 Newton Land Corporation 08/01/18 240 238 797,111.48 69 0.1275
R0743 Town Center Shoppes, Ltd. 09/01/18 240 239 3,233,650.87 73 0.1275
R0807 Fla II Trustee, Inc. 06/01/18 237 236 1,871,213.46 84 0.1275
R0886 Landi, LLC 10/01/08 300 300 560,000.00 68 0.1275
R0887 Landi, LLC 10/01/08 300 300 1,145,000.00 74 0.1275
SP007 H.M. Holdings, Inc. etal 04/01/28 360 354 20,934,186.13 57 0.1275
SkyII 15th Skyline Assoc. LP & 9th Skylin 06/11/28 360 356 87,423,946.05 71 0.1275
ACS Americold Real Estate, L.P. 05/11/23 300 295 147,597,677.40 57 0.1275
AIM-1 VMS National Properties 01/01/08 320 311 109,149,602.22 61 0.1275
</TABLE>
<TABLE>
<CAPTION>
Number of Anticipated
--------- -----------
Loan Properties Repayment
---- ---------- ---------
Number Borrower Name Securing Loan Date Seller Loan Pool
------ ------------- ------------- ---- ------ ---------
<S> <C> <C> <C> <C> <C>
07-0000000 Ming Avenue Limited Partnership 1 7/1/08 Falcon Financial Group 1
09-0001031 PDL, Inc. & Associates, LC 1 5/11/08 Archon Financial Group 1
09-0001032 Colonial Plaza Associates, LLC 1 Archon Financial Group 1
09-0001034 Concourse Plaza II, LTD. 1 Archon Financial Group 1
09-0001035 Marks/Bloom McKinney Apts., Ltd. 1 Archon Financial Group 2
09-0001036 Marks/Bloom McKinney Apts., Ltd. 1 Archon Financial Group 2
09-0001037 WVM Partners, Ltd. 1 Archon Financial Group 2
09-0001038 Brandon Lakes Plaza, Ltd. 1 Archon Financial Group 2
09-0001039 Salina Street Development, LLC 1 Archon Financial Group 1
09-0001040 Bercar II LLC 3 Archon Financial Group 1
09-0001041 Affordable I, L.L.C. 3 5/1/08 Archon Financial Group 1
09-0001042 Texas Briarwood Village Apts, Ltd. 1 Archon Financial Group 2
09-0001044 Florida Housing Corp. et al 1 Archon Financial Group 1
09-0001045 2002-2006 Ellis Avenue Corp. 1 Archon Financial Group 2
09-0001046 Stoneville Investment Properties, L 1 Archon Financial Group 1
09-0001051 Town View Apartments, L.P. 1 Archon Financial Group 2
09-0001053 Rowayton Marine Realty, LLC 1 Archon Financial Group 1
09-0001054 PSPR, Inc. 1 Archon Financial Group 1
09-0001055 CDI Centre, L.L.C. 1 Archon Financial Group 1
09-0001056 Sonesta West LLC 1 Archon Financial Group 2
09-0001057 FGR & DY Realty, Johnson City, LLC 1 Archon Financial Group 1
09-0001058 Five N's, Inc. 1 Archon Financial Group 1
09-0001059 Rama Hotel Corporation 1 Archon Financial Group 1
09-0001060 M.K.K. Hotel Corporation 1 Archon Financial Group 1
09-0001061 Canton Street Development, LLC 1 Archon Financial Group 1
09-0001062 Par Realty Group, Inc. 1 Archon Financial Group 1
09-0001063 Rivertech Associates Limited Partne 1 Archon Financial Group 1
09-0001064 Manir Properties 1 Archon Financial Group 1
09-0001065 Saunders New Mexico Properties LLC 1 Archon Financial Group 2
09-0001066 S.S.N.H.R., Inc. 1 Archon Financial Group 1
09-0001067 Shree Narayan, Inc. 1 Archon Financial Group 1
09-0001069 Yogi Investments, L.L.C. 1 Archon Financial Group 1
09-0001070 Number One Sierra, Ltd. 1 Archon Financial Group 2
09-0001071 Jagdish Investment Group, Inc. 1 Archon Financial Group 1
09-0001072 Angleton Investments, Ltd. 1 Archon Financial Group 2
09-0001073 Ridgecrest Shopping Center, LTD 1 Archon Financial Group 2
09-0001074 Laxim Hotels, Inc. 1 Archon Financial Group 1
09-0001075 Shadow Glen Apartments, LLC 1 Archon Financial Group 2
09-0001076 Intervest-First Place Tulsa LP 1 Archon Financial Group 1
09-0001077 Cosmo, Inc. 1 Archon Financial Group 1
09-0001079 Vikas Hotels, Inc. 1 Archon Financial Group 1
09-0001080 Akanksha, Inc. 1 Archon Financial Group 1
09-0001081 Shri Nath, L.L.C. 1 Archon Financial Group 1
09-0001082 Colorado Place Limited Partnership 1 Archon Financial Group 2
09-0001083 Nikita Investment Corporation 1 Archon Financial Group 1
09-0001084 Fort Worth Credit Partners, LTD 1 Archon Financial Group 2
09-0001085 41st Street Partners, L.P. 1 8/1/08 Archon Financial Group 2
09-0001086 O,M-Bernardo Industrial, Ltd. 1 7/1/08 Archon Financial Group 2
09-0001087 1709 SOUTHLAKE OAKS, LTD 1 Archon Financial Group 1
09-0001088 Franklin Hospitality Group, Inc. 1 Archon Financial Group 1
09-0001091 Larchmont Boulevard Building, Ltd. 1 Archon Financial Group 2
09-0001093 SKN Properties, LLC 1 Archon Financial Group 1
09-0001094 Marvin & Donna Cavaness Family Tru 1 Archon Financial Group 1
09-0001095 Domain NZ Partners Limited Partners 1 Archon Financial Group 1
09-0001096 Pasha, Inc. 1 Archon Financial Group 1
09-0001097 Felix Payal "LLC" 1 Archon Financial Group 1
09-0001098 Jay Bhagwan, Inc. 1 Archon Financial Group 1
09-0001099 Four Winds, Inc. 1 Archon Financial Group 1
09-0001100 FW of Saratoga, Inc. 1 Archon Financial Group 1
09-0001101 Medallion Bellevue Inn, L.L.C. 1 8/1/08 Archon Financial Group 1
09-0001102 8th and Pine Joint Venture 1 8/1/08 Archon Financial Group 1
09-0001104 BEENA, Inc. 1 Archon Financial Group 1
09-0001105 Jay Ambe, Inc. 1 Archon Financial Group 1
09-0001106 Hearthside Skilled Nursing Facility 1 Archon Financial Group 2
09-0001107 Southgate, Inc. 1 Archon Financial Group 2
09-0001110 13405 Stemmons, Ltd. 1 9/1/08 Archon Financial Group 1
09-0001111 All-Coast Enterprises Inc. 1 Archon Financial Group 2
09-0001112 502 East Highland Partners, L.P. 1 Archon Financial Group 1
09-0001113 Arshco, Inc. 1 Archon Financial Group 1
09-0001114 EP Acquisition L.P. 1 8/1/08 Archon Financial Group 1
09-0001115 Vance Hotel Associates Limited Part 1 8/1/08 Archon Financial Group 1
09-0001116 The Westcoast Benson Hotel Limited 1 8/1/08 Archon Financial Group 1
09-0001117 LTC-Ohio, Inc. 4 Archon Financial Group 1
09-0001118 Trupti, LLC 1 Archon Financial Group 1
09-0001119 Golden-T Holdings, Inc. 1 Archon Financial Group 1
09-0001120 Gulab, Inc. 1 Archon Financial Group 1
09-0001122 TMP Investments, Inc. 1 Archon Financial Group 2
09-0001123 Springdale Villa L.P. 1 Archon Financial Group 2
09-0001124 Jaymine Enterprises, Inc. 1 Archon Financial Group 1
09-0001128 FSH Associates LP 1 9/1/08 Archon Financial Group 2
09-0001130 Spring Park Plaza Associates Limite 1 Archon Financial Group 1
09-0001132 Globe Corporation 1 Archon Financial Group 1
09-0001133 Consolidated Storage Properties, In 3 Archon Financial Group 1
09-0001134 Gokul, Inc., a Virginia corporation 1 Archon Financial Group 1
09-0001135 S.W. Farmington, Inc. 1 Archon Financial Group 1
09-0001136 S.W. Roswell, Inc. 1 Archon Financial Group 1
09-0001137 S.W. Grants, Inc. 1 Archon Financial Group 1
09-0001138 S.W. Gallup, Inc. 1 Archon Financial Group 1
09-0001139 Malkus, Inc., a Florida Corporation 1 Archon Financial Group 1
09-0001140 Nirab Amare, L.L.C. 1 Archon Financial Group 1
09-0001141 Kush, Inc. 1 Archon Financial Group 1
09-0001142 Westheimer Hospitality, L.L.C. 1 Archon Financial Group 1
09-0001147 T.C. Hospitality, Inc. 1 Archon Financial Group 1
09-0001160 Patro, Ltd. 1 Archon Financial Group 1
09-0001163 Lancaster Mobile Homes Estates Limi 1 Archon Financial Group 1
09-0001167 Centerra Marketplace, Inc. 1 Archon Financial Group 1
09-0001168 Clearview - Kenosha, LLC 1 Archon Financial Group 2
09-1001006 EPT DownREIT II, Inc. 8 7/11/08 Large Loan Group 1
400027540 Phoenix Construction, Inc. 1 Amresco Capital L. Group 1
400027560 Concord Summit, LTD. 1 Amresco Capital L. Group 1
400028210 Royal Village, L.L.C. 1 Amresco Capital L. Group 1
400028225 APA III LTD. 1 Amresco Capital L. Group 1
400028228 Sterling Ponds Shopping Center, LLC 1 Amresco Capital L. Group 1
400028269 Westmoor I, LTD. 1 Amresco Capital L. Group 2
400028275 R & W Arizona Properties, L.L.C. 2 1/1/08 Amresco Capital L. Group 1
400028277 Kenneth L. Shimm 1 Amresco Capital L. Group 2
400028286 Zephyr Hills Limited Partnership 1 Amresco Capital L. Group 1
400028304 Thirty Six Hundred LP 1 Amresco Capital L. Group 1
400028305 Bowman Business Park, L.L.C. 1 Amresco Capital L. Group 2
400029116 Cafferty Stoneybrook Associates, L. 1 Amresco Capital L. Group 1
400029119 6011 Durand Associates 1 Amresco Capital L. Group 2
400029121 Saxon Enterprises, Inc. 1 Amresco Capital L. Group 2
400029126 Shiloh Place I, Ltd. 1 Amresco Capital L. Group 2
400029129 Imperial Hawthorne Limited Partners 1 Amresco Capital L. Group 2
400029134 Middletown Properties Co. Limited 1 Amresco Capital L. Group 2
400029137 Shirley Court Holdings, L.P. 1 Amresco Capital L. Group 2
400029139 Prospect Venture, L.P. 1 3/1/08 Amresco Capital L. Group 2
400029140 Select Sites of Attleborough, Inc. 1 Amresco Capital L. Group 1
400029141 Willow Run Business Center I, L.L.C 1 Amresco Capital L. Group 1
400029143 Marketplace East Associates LP 1 Amresco Capital L. Group 1
400029145 West Pacific Development 1 Amresco Capital L. Group 2
400029147 American National Bank and Trust Co 1 Amresco Capital L. Group 1
400029148 Grand Rapids Associates LP 1 Amresco Capital L. Group 2
400029149 Ames Business Center, L.L.P. 1 Amresco Capital L. Group 2
400029150 Harry H. Hahamovitch 1 Amresco Capital L. Group 1
400029154 901 Argyle Partnership 1 Amresco Capital L. Group 2
400029155 Hopedale Business Park Corporation 1 Amresco Capital L. Group 1
400029156 Megapolis, Corporation 1 Amresco Capital L. Group 2
400029157 BBR Realty Partners, LP 3 Amresco Capital L. Group 2
400029158 B/P Investments, Inc. 1 Amresco Capital L. Group 2
400029160 10201 Olde School, L.L.C. 1 Amresco Capital L. Group 1
400029161 W-W Mill Plain Limited Partnership 1 Amresco Capital L. Group 1
400029162 Featherstone Associates, LP 1 Amresco Capital L. Group 1
400029163 Fresno Clinton Way Operating Ass. L 1 Amresco Capital L. Group 1
400029164 Milton Associates S.C., Inc. 1 Amresco Capital L. Group 1
400029166 Property Operations, Inc., as Trust 1 Amresco Capital L. Group 1
400029167 PO Limited Partnership 1 Amresco Capital L. Group 1
400029168 Ira L. Giddens, Inc. 1 Amresco Capital L. Group 2
400029169 Braden Creek L.L.C. 1 Amresco Capital L. Group 2
400029171 Freeway Properties III 1 Amresco Capital L. Group 2
400029172 The Armory LLC 1 Amresco Capital L. Group 2
400029173 Udolf Investments, LLC 5 Amresco Capital L. Group 1
400029174 Partridge Square, LLC 1 Amresco Capital L. Group 1
400029178 422 Mystic Avenue Realty, L.L.C. 1 Amresco Capital L. Group 2
400029180 SRK Blue Ash Associates Limited 1 Amresco Capital L. Group 2
400029181 Benchmark Stuyvesant Associates LP 1 Amresco Capital L. Group 1
400029182 Windward Realty Trust 1 Amresco Capital L. Group 2
400029183 Fairlawn Gardens Corp. 1 Amresco Capital L. Group 2
400029184 La Porte Properties, L.L.C. 1 Amresco Capital L. Group 2
400029185 CKL Realty. Ltd. 1 Amresco Capital L. Group 2
400029186 Stornaway LLC 6 Amresco Capital L. Group 1
400029187 Donovan LLC 5 Amresco Capital L. Group 2
400029188 Lillian Cove, LLC 1 Amresco Capital L. Group 1
400029189 83 LLC 1 Amresco Capital L. Group 2
400029190 Ganpati Hospitality, Inc. 1 Amresco Capital L. Group 2
400029191 WB Properties Trust 1 Amresco Capital L. Group 2
400029192 Rescom-Avery, LLC 2 Amresco Capital L. Group 1
400029194 Mil-Pine Plaza Associates LP 1 Amresco Capital L. Group 1
400029196 Little Neck Commons, LLC 1 Amresco Capital L. Group 1
400029197 Renaissance Campanelli, LLC 1 Amresco Capital L. Group 1
400029199 Thompson Associates 2 Amresco Capital L. Group 1
400029200 Exchange Street Parking Associates, 1 Amresco Capital L. Group 2
400029201 D.P. Associates, Limited Partnershi 1 Amresco Capital L. Group 2
400029202 York Properties of Houston, L.L.C. 1 Amresco Capital L. Group 2
400029204 Victor R. Young and Patricia C. You 1 Amresco Capital L. Group 2
400029205 Walden Properties, LLC 1 Amresco Capital L. Group 2
400029206 8304 Sherwick Court L.P. 1 Amresco Capital L. Group 1
400029207 Northway Plaza Associates, LLC 1 Amresco Capital L. Group 2
400029208 98 Summit, L.L.C. 1 Amresco Capital L. Group 2
400029209 Centennial Square Retail L.L.C. 1 Amresco Capital L. Group 2
400029210 Romar Investors LLC 1 Amresco Capital L. Group 2
400029211 Mt. Zion Decatur, LLC 1 Amresco Capital L. Group 1
400029212 Sterling Ponds Shopping Center, LLC 1 Amresco Capital L. Group 1
400029213 Hallendale Professional Park 1 Amresco Capital L. Group 1
400029214 NVIEMPIRE SPE LLC 9 Amresco Capital L. Group 1
400029215 NVIBBR, LTD. CO. 3 Amresco Capital L. Group 1
400029216 Central Holdings Properties, LLC 4 Amresco Capital L. Group 2
400029217 38-Britcher, L.L.C. 1 Amresco Capital L. Group 1
400029218 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029219 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029220 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029221 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 2
400029222 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029223 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 2
400029224 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029225 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029226 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029227 T.L.S. NYC Real Estate, LLC 1 Amresco Capital L. Group 1
400029228 Canyon Road Galleries, Inc. 1 Amresco Capital L. Group 1
400029232 Riverside Village Investments, LLC 1 Amresco Capital L. Group 2
400029233 G-WHIS/BELLMEAD, L.P. 1 Amresco Capital L. Group 1
400029234 Center of Clewiston Land Trust 1 Amresco Capital L. Group 1
400029235 440 East Sample Road, Inc. 1 Amresco Capital L. Group 2
400029236 Lomond Place, LLC 1 Amresco Capital L. Group 1
400029237 PTW Holding LLLP 1 Amresco Capital L. Group 1
400029238 Pulaski 3800 Storage LLLP 1 Amresco Capital L. Group 1
400029246 Columbia East Dundee II, Limited Pa 1 Amresco Capital L. Group 2
400029248 6800 Associates Limited Partnership 1 Amresco Capital L. Group 1
400029250 Farragut Acquisition Partners I, LP 2 Amresco Capital L. Group 2
400029251 Poplar Center Development, Ltd. 1 Amresco Capital L. Group 2
400029252 Triad Lauderdale Limited 1 Amresco Capital L. Group 2
400029253 J & D 1616, LLC 1 Amresco Capital L. Group 2
400029255 J & D Woodward Village, LLC 1 Amresco Capital L. Group 1
400029257 Indian Lookout Apartments, Limited 1 Amresco Capital L. Group 2
400029258 C & H Development/Concord 1 Amresco Capital L. Group 1
400029262 Coldwell Building General Partnersh 1 Amresco Capital L. Group 2
400029267 301 West Broad Street Limited Partn 1 Amresco Capital L. Group 1
400029274 B.K. Enterprises LLC 1 Amresco Capital L. Group 2
400029282 MHVI Medical Center 1 Amresco Capital L. Group 1
400029290 Whitehall Partnership 1 Amresco Capital L. Group 1
400029291 Partridge Square, LLC 1 Amresco Capital L. Group 1
400029294 Wailuku Polaris, Inc. 1 Amresco Capital L. Group 2
400029297 Towerview Condominium, LLC 1 Amresco Capital L. Group 1
400029299 Ogden Manor Associates 1 Amresco Capital L. Group 2
400029300 Harrisonburg Inn Limited Partnershi 1 Amresco Capital L. Group 1
400029304 Gateway Development, LLC 1 Amresco Capital L. Group 1
400029306 UG Venture, LTD. 1 Amresco Capital L. Group 2
400029308 BA Dallas Market Center I, L.P. 1 Amresco Capital L. Group 1
400029309 W & B Properties, Inc. 1 Amresco Capital L. Group 1
400029310 Airport Place Building, LLC 1 Amresco Capital L. Group 1
400029311 Prime Plaza, Inc. 1 Amresco Capital L. Group 2
400030866 Annapolis W.H. LLC, et al 1 Amresco Capital L. Group 1
400030867 Arcadia Landmark 1 Amresco Capital L. Group 2
400030868 GPI Cascades, Ltd. 1 Amresco Capital L. Group 1
400030869 GPI Park Square, Ltd. 1 Amresco Capital L. Group 1
400030870 GPI Park Ridge, Ltd. 1 Amresco Capital L. Group 1
400030871 Padonia Park, LLC 1 Amresco Capital L. Group 1
400030875 Grand Rapids AFG, LLC 1 Amresco Capital L. Group 1
400030876 Lansing AFG LLC 1 Amresco Capital L. Group 1
400030880 Cavalier Associates, L.L.C. etal 6 Amresco Capital L. Group 1
400030886 Ash Investment Company, LLC & Ja 2 Amresco Capital L. Group 1
400030890 Pacific Mini-Storage Limited Partne 1 Amresco Capital L. Group 1
400030893 1202 Airport Road Limited Partnersh 1 Amresco Capital L. Group 2
400030896 Bend Towne Center Limited Partnersh 1 Amresco Capital L. Group 1
400030913 761 Partnership, a New York General 1 Amresco Capital L. Group 2
400030914 Lexington Lancaster LLC 1 Amresco Capital L. Group 1
400030915 The Saddlery, LLP 1 Amresco Capital L. Group 2
400030922 666 Pennsylvania Avenue Associates 1 Amresco Capital L. Group 1
400030925 DEVON INVESTMENT, INC., a Florid 1 Amresco Capital L. Group 1
400030934 Woodwinds Office Center, L.L.C. 1 Amresco Capital L. Group 2
400030935 Nashville Heritage, LLC 1 Amresco Capital L. Group 2
400030964 JAGI Cleveland - Hudson, LLC 1 Amresco Capital L. Group 2
400030965 JAGI Cleveland-Independence,LLC 1 Amresco Capital L. Group 2
400030966 JAGI NORTH CANTON, LLC. 1 Amresco Capital L. Group 2
400030967 JAGI MONTROSE WEST, LLC 1 Amresco Capital L. Group 2
400031048 Palm Springs Village Apts., L.P. 1 Amresco Capital L. Group 2
400031123 Whitewood Oaks Apartments, Inc. 1 Amresco Capital L. Group 2
400031128 Hilgard Apartments 962, LLC 1 Amresco Capital L. Group 1
ANADC Lowe Enterprises, Inc./Ohio Public 1 Goldman Sachs Group 1
I0074 Dime Circle, Ltd 1 Central Park Capita Group 1
I0099 2800 Black Lake Place Associates 1 Central Park Capita Group 1
L0137 Walber Broadway Co. 1 Central Park Capita Group 1
L0149 Lake Natoma Lodging, L.P. 1 Central Park Capita Group 1
L0171 RNA, LLC 1 Central Park Capita Group 1
L0184 J & M Hospitality, Inc. 1 Central Park Capita Group 2
L0200 The Impala Corporation 1 Central Park Capita Group 1
L0202 CMLC, Inc. 1 Central Park Capita Group 1
L0237 ZDZ, Inc. and Zandor Investments, L 1 Central Park Capita Group 1
L0300 Marger, Inc. 1 Central Park Capita Group 1
M0171 Fremont Gardens Investors LLC 1 Central Park Capita Group 2
M0172 Roxbury Crossing Limited Partnershi 1 Central Park Capita Group 2
M0220 Inwood Mansions, LLC 1 Central Park Capita Group 2
M0262 Oakwood Heights Real Estate LP 1 Central Park Capita Group 2
M0263 Country Acres Estates LP 1 Central Park Capita Group 2
M0264 Executive East Apartments, LLC 1 Central Park Capita Group 2
M0288 SV Apartments, LLC 1 Central Park Capita Group 2
M0289 The Crossings Apartments LLC 1 Central Park Capita Group 2
M0290 Geneva Place Limited Partnership 1 Central Park Capita Group 2
M0330 John Montesano, LLC 2 Central Park Capita Group 2
M0364 Riverchase Partners, L.P. 1 Central Park Capita Group 2
M0415 Northridge Villa Investors LLC 1 Central Park Capita Group 2
M0429 The Seasons Townhouses Limited Pa 1 Central Park Capita Group 1
M0443 Treehouse of Jacksonville, Ltd. 1 Central Park Capita Group 2
M0462 Cottonwood, LLC 1 Central Park Capita Group 2
M0487 II Frances Place Apartments Partner 1 Central Park Capita Group 1
M0514 Hobbit's Grove LLC 1 Central Park Capita Group 2
M0537 Cedar Shores, Ltd. 1 Central Park Capita Group 2
MH0020 Grand Valley Village LP & GVV Mobil 1 Central Park Capita Group 1
MU0036 Landi, LLC 1 Central Park Capita Group 2
MU0114 Landi, LLC 1 Central Park Capita Group 2
O0090 Village Square of HSV, L.L.C. 1 Central Park Capita Group 1
O0148 312 Marshall Limited Partnership 1 Central Park Capita Group 2
O0179 Jayco Vista, LLC 1 Central Park Capita Group 2
O0244 Talweg L.L.C. 1 Central Park Capita Group 1
O0253 G & H Six, L.L.C. 1 Central Park Capita Group 2
O0259 1501 Harbor Bay, L.P. 1 Central Park Capita Group 2
O0265 Vornado-Westport L.L.C. 1 Central Park Capita Group 2
O0311 Dunwoody Park Partners, Inc. 1 Central Park Capita Group 2
O0320 Medical Landmark I & The Rehabilita 1 6/1/08 Central Park Capita Group 1
O0348 Liberty 2000 Investors, Ltd. 1 Central Park Capita Group 1
O0359 Concord Management Ltd., et al 1 Central Park Capita Group 2
O0393 Brit Limited Partnership 1 Central Park Capita Group 1
O0422 Enterprise Center Properties, Inc. 2 Central Park Capita Group 2
O0541 Ace Allen 1 Central Park Capita Group 2
R0134 Hardscrabble, LLC 1 Central Park Capita Group 1
R0254 Silver Spring Plaza Corp. 1 Central Park Capita Group 2
R0280 K.M. Valdosta Associates 1 Central Park Capita Group 1
R0297 New Country Corners LP 1 Central Park Capita Group 2
R0304 Alturas Partners 1 Central Park Capita Group 2
R0311 The Lakes - Folsom, LLC 1 Central Park Capita Group 2
R0315 Kentucky Development Venture I 1 Central Park Capita Group 2
R0412 G.W.C.H. Limited Partnership 1 Central Park Capita Group 2
R0421 Fairbanks Equity, Ltd. 1 Central Park Capita Group 1
R0458 Dexter Ridge Shopping Center, L.L.C 1 Central Park Capita Group 1
R0463 Ruston Center, L.L.C. 1 Central Park Capita Group 2
R0464 Sunshine Heights, L.L.C. 1 Central Park Capita Group 2
R0480 BB Westland Associates, LLC 1 Central Park Capita Group 2
R0497 Canary Creek Shoppes LLC 1 Central Park Capita Group 2
R0514 Metzerott Plaza, Inc. 1 Central Park Capita Group 2
R0533 JAH Investments, LLC 1 Central Park Capita Group 1
R0559 BC Investments - Lincoln LLC 1 Central Park Capita Group 1
R0597 BenCen Limited Partnership 1 Central Park Capita Group 2
R0633 Newton Land Corporation 1 Central Park Capita Group 1
R0634 Newton Land Corporation 1 Central Park Capita Group 1
R0743 Town Center Shoppes, Ltd. 1 Central Park Capita Group 1
R0807 Fla II Trustee, Inc. 1 Central Park Capita Group 1
R0886 Landi, LLC 1 Central Park Capita Group 2
R0887 Landi, LLC 1 Central Park Capita Group 2
SP007 H.M. Holdings, Inc. etal 1 3/1/08 Central Park Capita Group 1
SkyII 15th Skyline Assoc. LP & 9th Skylin 2 8/11/08 Large Loan Group 1
ACS Americold Real Estate, L.P. 29 5/11/08 Large Loan Group 1
AIM-1 VMS National Properties 15 VM Groups 1 and 2
</TABLE>
Footnotes:
(1) For the following loans, the Revised Rate shall be the greater of (a) the
initial interest rate plus 2% or (b) the Treasury rate plus 2%. For the
purposes of this schedule, we have chosen to reflect the initial interest
rate plus 2%.
(2) For the following loans, the Revised Rate shall be the lesser of the
maximum rate permitted by applicable law or the greater of (a) the initial
interest rate plus 2% or (b) the Treasury rate plus 2%. For the purposes of
this schedule, we have chosen to reflect the initial interest rate plus 2%.
(3) For the following loan, the Revised Rate shall be the greater of (a) the
initial interest rate plus 5% or (b) the Treasury rate plus 5%. For the
purposes of this schedule, we have chosen to reflect the initial interest
rate plus 5%.
(4) For the following loans, the Revised Rate shall be the lesser of (a)
initial interest rate plus 2% or (b) the maximum rate permitted by law. For
the purposes of this schedule, we have chosen to reflect the initial
interest rate plus 2%.
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_______________________, being first duly sworn, deposes and says:
1. That he/she is the ____________ of __________________ (the "Purchaser"),
a ____________ duly organized and existing under the laws of the State of
__________, on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ____________.
3. That the Purchaser of the GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, Class [R] [LR]
(the "Class [R] [LR] Certificate") is a Permitted Transferee (as defined in
Article I of the Pooling and Servicing Agreement, dated as of October 11, 1998
(the "Pooling and Servicing Agreement"), by and among GS Mortgage Securities
Corporation II, as Seller, Goldman Sachs Mortgage Company, as a Responsible
Party, Falcon Financial, LLC, as a Responsible Party, AMRESCO Capital Limited,
Inc., as a Responsible Party, AMRESCO Commercial Mortgage Funding, L.P., as a
Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer and
Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as
Fiscal Agent, or is acquiring the Class [R] [LR] Certificate for the account of,
or as agent (including as a broker, nominee, or other middleman) for, a
Permitted Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class [R] [LR] Certificate as
they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR] Certificate to
any person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit or as to which the Purchaser has
actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or
paragraph 7 hereof are not satisfied or that the Purchaser has reason to know
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Purchaser agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 4.04 of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Purchaser's agent in performing the function of "tax matters
person."
10. The Purchaser agrees to be bound by and to abide by the provisions of
Section 5.02 of the Pooling and Servicing Agreement concerning registration of
the transfer and exchange of the Class [R] [LR] Certificate.
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf by its _______________ this ___th day of __________], 1998.
[Purchaser]
By: ________________________________________
Name:
Title:
Dated:
<PAGE>
The above-named ___________________ personally appeared before me and is
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________ of the Purchaser, 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 Purchaser.
Subscribed and sworn before me this __th day of ____________, 1998.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the __th day
of ________________, ____.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
[CERTIFICATE REGISTRAR]
Re: GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through
Certificates, Series 1998-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the information contained in paragraph 4 thereof is not true.
Very truly yours,
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services Group-GS98-C1
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Attention: [J. Theodore Borter]
[Jay Strauss]
Re: Transfer of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class [____]
Ladies and Gentlemen:
In connection with the purchase by the undersigned (the "Purchaser") of
$__________ [Certificate Principal Amount] [Notional Amount] of Class [_____]
Certificates the ("Certificate"), the Purchaser hereby represents and agrees as
follows (capitalized terms used but not defined herein shall have the meanings
given them in the Pooling and Servicing Agreement, dated as of October 11, 1998
(the "Pooling and Servicing Agreement"), by and among GS Mortgage Securities
Corporation II, as Seller, Goldman Sachs Mortgage Company, as a Responsible
Party, Falcon Financial, LLC, as a Responsible Party, AMRESCO Capital Limited,
Inc., as a Responsible Party, AMRESCO Commercial Mortgage Funding, L.P., as a
Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer and
Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as
Fiscal Agent):
1. [For Institutional Accredited Investors only] The Purchaser is an
institutional "accredited investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (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 its investment in the Certificate, and the Purchaser and any accounts
for which it is acting are each able to bear the economic risk of such
investment. The Purchaser is acquiring the Certificate purchased by it for its
own account or for one or more accounts (each of which qualifies as an
"accredited investor") as to each of which the Purchaser exercises sole
investment discretion. The Purchaser hereby undertakes to reimburse the trust
created pursuant to the Pooling and Servicing Agreement (the "Trust") for any
costs incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] The Purchaser is a "qualified
institutional buyer" within the meaning of Rule 144A ("Rule 144A") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser is aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information required to be
provided pursuant to paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions meeting the requirements of Rule 144A,
(ii) pursuant to an exemption from the registration requirements of the
Securities Act provided by Rule 144 under the Securities Act (if available),
(iii) in an offshore transaction in accordance with Rule 903 or Rule 904 of
Regulation S under the Securities Act, or (iv) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act, if the Purchaser is a
"qualified institutional buyer," or purchased from a "qualified institutional
buyer," subject in the case of this clause (iv) to (a) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (b) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act, and (c) a written undertaking to reimburse
the Trust for any costs incurred by it in connection with the proposed transfer.
The Purchaser understands that the Certificate (and any subsequent Individual
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
4. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of an
Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
5. The Purchaser will not sell or otherwise transfer any portion of the
Certificate, except in compliance with Section 5.02 of the Pooling and Servicing
Agreement.
6. Check one of the following:
[_] The Purchaser is a "U.S. Person" and it has
attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
[_] The Purchaser is not a "U.S. Person" and
under applicable law in effect on the date
hereof, no taxes will be required to be
withheld by the Certificate Registrar (or
its agent) with respect to distributions to
be made on the Certificate(s). The Purchaser
has attached hereto either (i) a duly
executed IRS Form W-8 (or successor form),
which identifies such Purchaser as the
beneficial owner of the Certificate(s) and
states that such Purchaser is not a U.S.
Person or (ii) two duly executed copies of
IRS Form 4224 (or successor form), which
identify such Purchaser as the beneficial
owner of the Certificate(s) and state that
interest and original issue discount on the
Certificate(s) is, or is expected to be,
effectively connected with a U.S. trade or
business. The Purchaser agrees to provide to
the Certificate Registrar updated IRS Forms
W-8 or IRS Forms 4224, as the case may be,
any applicable successor IRS forms, or such
other certifications as the Certificate
Registrar may reasonably request, on or
before the date that any such IRS form or
certification expires or becomes obsolete,
or promptly after the occurrence of any
event requiring a change in the most recent
IRS form of certification furnished by it to
the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation, partnership (except to the extent provided in applicable
Treasury regulations) or other entity created or organized in or under the laws
of the United States or any political subdivision thereof, an estate that is
subject to U.S. federal income tax regardless of the source of its income or a
trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
<PAGE>
Please make all payments due on the Transferred Interests:*
______ (a) by wire transfer to the following account at a bank or entity in
New York, New York, having appropriate facilities therefor:
Account number __________ Institution ___________
______ (b) by mailing a check or draft to the following address:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
Very truly yours,
[The Purchaser]
By: ____________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Attention: ________________
Re: GS Mortgage Securities Corporation II, Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, Class [____]
Ladies and Gentlemen:
__________________________ (the "Purchaser") intends to purchase from
____________________ (the "Seller") $_____________ initial [Certificate
Principal Amount] [Notional Amount] or _____% Percentage Interest of GS Mortgage
Securities Corporation II, Commercial Mortgage Pass-Through Certificates, Series
1998-C1, Class [_], CUSIP No. [____] (the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement dated as of October 11, 1998 (the "Pooling
and Servicing Agreement"), by and among GS Mortgage Securities Corporation II,
as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, Falcon
Financial, LLC, as a Responsible Party, AMRESCO Capital Limited, Inc., as a
Responsible Party, AMRESCO Commercial Mortgage Funding, L.P., as a Responsible
Party, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to, and covenants
with, the Seller, the Certificate Registrar and the Trustee that:
1. The Purchaser is neither (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Keogh
plan, which is subject to Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Code, or a governmental
plan (as defined in Section 3(32) of ERISA) that is subject to any Federal,
State or local law (a "Similar Law"), which is, to a material extent, similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), nor (b) a
collective investment fund in which such Plans are invested, an insurance
company using assets of separate accounts or general accounts which include
assets of Plans (or which are deemed pursuant to ERISA or Similar Law to include
assets of Plans) or other Person acting on behalf of any such Plan or using the
assets of any such Plan, other than (with respect to any transfer of a Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J or Class Q
Certificate) an insurance company using assets of its general account under
circumstances whereby such purchase and the subsequent holding of such
Certificate by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or 1(b) above, except in the case of the Class R or Class LR
Certificates, which may not be transferred unless the transferee represents it
is not such a Person, such Purchaser is required to provide to the Seller, the
Trustee and the Certificate Registrar an Opinion of Counsel in form and
substance satisfactory to the Seller, the Trustee and the Certificate Registrar
that the purchase or holding of the Certificates will not result in the assets
of the Trust Fund being deemed to be "plan assets" and subject to Title I of
ERISA, Section 4975 of the Code or Similar Law, will not constitute or result in
a prohibited transaction within the meaning of ERISA or Section 4975 of the Code
or a materially similar characterization under Similar Law, and will not subject
the Master Servicer, the Special Servicer, the Seller, the Trustee or the
Certificate Registrar to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or Similar Law) in addition to
those set forth in the Pooling and Servicing Agreement, which Opinion of Counsel
shall not be at the expense of the Trustee, the Trust Fund, the Master Servicer,
the Special Servicer, the Certificate Registrar or the Seller.
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA Representation
Letter on _________________, ____.
[Purchaser]
By:___________________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(FOR TRUSTEE/CUSTODIAN)
Loan Information:
Name of Mortgagor: __________________
Master Servicer Loan No.: __________________
Custodian/Trustee
Name: __________________
Address: __________________
- ------------------
Custodian/Trustee Mortgage File No.: __________________
[Seller]
Name: __________________
Address: __________________
- ------------------
Certificates: GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class [____]
The undersigned Master Servicer hereby acknowledges that it has received
from LaSalle National Bank, as Trustee for the Holders of GS Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
the documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given them
in the Pooling and Servicing Agreement dated as of October 11, 1998 (the
"Pooling and Servicing Agreement"), by and among the Trustee, ABN AMRO Bank
N.V., as Fiscal Agent, GS Mortgage Securities Corporation II, as Seller, Goldman
Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC, as a
Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, and GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer.
( ) Promissory Note dated _________, _____, in the original principal sum
of $_____, made by _______, payable to, or endorsed to the order of, the
Trustee.
( ) Mortgage recorded on ____________ as instrument no. ________ in the
County Recorder's Office of the County of _________, State of ___________ in
book/reel/docket ___________ of official records at page/image ________.
( ) Deed of Trust recorded on __________ as instrument no. ________ in the
County Recorder's Office of the County of ___________, State of _______ in
book/reel/docket ____________ of official records at page/image.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________ as instrument no. _______ in the County Recorder's Office of the
County of _________, State of _______ in book/reel/docket __________ of official
records at page/image _____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Note or Mortgage.
( ) _______________________________
( ) _______________________________
( ) _______________________________
( ) _______________________________
The undersigned Master Servicer hereby acknowledges and agrees as follows:
(1) The Master Servicer shall hold and retain possession of the Documents
in trust for the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The Master Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Master Servicer assert or
seek to assert any claims or rights of set-off to or against the Documents or
any proceeds thereof.
(3) The Master Servicer shall return the Documents to the Custodian when
the need therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer shall at
all times be earmarked for the account of the Trustee, and the Master Servicer
shall keep the Documents and any proceeds separate and distinct from all other
property in the Master Servicer's possession, custody or control.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: __________________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT F
SECURITIES LEGEND
Subject to the Pooling and Servicing Agreement, the Rule 144A Global
Certificates, the Residual Certificates and the Individual Certificates will
bear a legend (with respect to such Certificates, the "Securities Legend") to
the following effect, unless the Seller determines otherwise in accordance with
applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE
144A (A "QIB"), WHOM THE HOLDER HAS INFORMED THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S, OR (4) BY AN INITIAL INVESTOR THAT IS A QIB, OR
BY A SUBSEQUENT INVESTOR, TO AN INSTITUTIONAL ACCREDITED
INVESTOR MEETING THE REQUIREMENTS OF REGULATION D AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
Notwithstanding anything to the contrary, the Residual Certificates will
not bear clauses (A)(2), (A)(3) and (A)(4) of the Securities Legend.
<PAGE>
EXHIBIT G
[Reserved]
<PAGE>
EXHIBIT H
[Reserved]
<PAGE>
EXHIBIT I
GSMSC II, 98-C1
Summary Report
- --------------------------------------------------------------------------------
GMAC # PROPERTY:
SUB-SERVICER:
SUB-SERVICER NUMBER: INTEREST RATE:
P&I: QUARTER ENDED:
CURRENT PRINCIPAL BALANCE:
OCCUPANCY: VACANCY:
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
INCOME QUARTER/YEAR ENDED QUARTER/YEAR ENDED
- ---------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
GROSS INCOME
- ---------------------------------------- -------------------------------------- --------------------------------------
VACANCIES
- ---------------------------------------- -------------------------------------- --------------------------------------
BAD DEBT / UNCOLL.
- ---------------------------------------- -------------------------------------- --------------------------------------
ADDITIONAL INCOME
- ---------------------------------------- -------------------------------------- --------------------------------------
TOTAL INCOME
- ---------------------------------------- -------------------------------------- --------------------------------------
EXPENSES
- ---------------------------------------- -------------------------------------- --------------------------------------
- ---------------------------------------- -------------------------------------- --------------------------------------
REAL ESTATE TAXES
- ---------------------------------------- -------------------------------------- --------------------------------------
PROPERTY INSURANCE
- ---------------------------------------- -------------------------------------- --------------------------------------
MANAGEMENT FEES
- ---------------------------------------- -------------------------------------- --------------------------------------
UTILITIES
- ---------------------------------------- -------------------------------------- --------------------------------------
ADMINISTRATIVE
- ---------------------------------------- -------------------------------------- --------------------------------------
MAINTENANCE/REPAIRS
- ---------------------------------------- -------------------------------------- --------------------------------------
REPLACEMENT RESERVES
- ---------------------------------------- -------------------------------------- --------------------------------------
RR RELEASES
- ---------------------------------------- -------------------------------------- --------------------------------------
MISC.
- ---------------------------------------- -------------------------------------- --------------------------------------
NET EXPENSES
- ---------------------------------------- -------------------------------------- --------------------------------------
DEPRECIATION
- ---------------------------------------- -------------------------------------- --------------------------------------
AMORT. / INTEREST
- ---------------------------------------- -------------------------------------- --------------------------------------
TOTAL EXPENSES
- ---------------------------------------- -------------------------------------- --------------------------------------
- ---------------------------------------- -------------------------------------- --------------------------------------
NET OPERATING INCOME
- ---------------------------------------- -------------------------------------- --------------------------------------
1st MTG. DEBT SERVICE
- ---------------------------------------- -------------------------------------- --------------------------------------
NET INCOME / LOSS
- ---------------------------------------- -------------------------------------- --------------------------------------
DEBT COVERAGE
- ---------------------------------------- -------------------------------------- --------------------------------------
- ---------------------------------------- -------------------------------------- --------------------------------------
OTHER DEBT
- ---------------------------------------- -------------------------------------- --------------------------------------
NET INCOME / LOSS
- ---------------------------------------- -------------------------------------- --------------------------------------
NEW DEBT COVERAGE
- ---------------------------------------- -------------------------------------- --------------------------------------
EXPENSE RATIO
- ---------------------------------------- -------------------------------------- --------------------------------------
</TABLE>
- ---------------------------------------------------------------------
COMMENTS:
- ---------------------------------------------------------------------
This summary was printed on
<PAGE>
EXHIBIT J
FORM OF MONTHLY DISTRIBUTION STATEMENT
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800) 246-5761
135 S. Lasalle Street Suite 1740
Chicago, Il 60603
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
WAC:
WAMM:
Number of Pages
---------------
Table of Contents
TOTAL PAGES INCLUDED IN THIS PACKAGE
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
LaSalle Web Site www.Inbabs.com
LaSalle Bulletin Board (714) 282-3990
LaSalle ASAP Fax System (312) 904-2200
ASAP #:
Monthly Data File Name:
<PAGE>
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800) 246-5761
135 S. Lasalle Street Suite 1740
Chicago, Il 60603
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
WAC:
WAMM:
<TABLE>
<CAPTION>
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST
CLASS FACE VALUE(1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT
CUSIP PER $1,000 PER $1,000 PER $1,000 PER $1,000 PER $1,000 PER $1,000 PER $1,000
- ----- ------------- ---------- ----------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
INTEREST PASS-THROUGH
ADJUSTMENT RATE(2)
PER $1,000 NEXT RATE(3)
- ---------- ------------- ---------- ----------- ---------- --------- -------- ----------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
==== ==== ==== ==== ==== ==== ==== ====
TOTAL P&I PAYMENT 0.00
====
</TABLE>
Notes:
(1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest equals
Accrual
(3) Estimated
<PAGE>
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800) 246-5761
135 S. Lasalle Street Suite 1625
Chicago, Il 60674-4107
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
WAC:
WAMM:
OTHER RELATED INFORMATION
SERVICER / POOL INFORMATION
<TABLE>
<CAPTION>
BEGINNING SCHEDULED UNSCHEDULED REALIZED ENDING SCHEDULED PREPAYMENT INTEREST
BALANCE PRINCIPAL PRINCIPAL LOSSES BALANCE INTEREST SHORTFALL EXCESS
- ------- --------- --------- ------ ------- -------- --------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
BEGINNING ENDING GROSS W/AVG MONTHS PREPAYMENT DISPOSITION
LOAN COUNT LOAN COUNT SERVICING FEES TO MATURITY PENALTIES FEES
---------- ---------- -------------- ----------- --------- ----
CURRENT CUMULATIVE
UNPAID UNPAID
CLASS INTEREST INTEREST
----- -------- --------
TOTAL
-----
</TABLE>
<PAGE>
ABN AMRO
LaSalle National Bank
Administrator:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1625
Chicago, IL 60674-4107
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
OTHER RELATED INFORMATION
<TABLE>
<CAPTION>
BEGINNING CURRENT ENDING
P&I ADVANCES MADE BY: UNREIMBURSED PERIOD REIMBURSED UNREIMBURSED
--------------------- ------------ ------ ---------- ------------
<S> <C> <C> <C> <C>
Servicer
Trustee
Fiscal Agent
Total P&I Advances
SUMMARY OF EXPENSES:
Current Period Servicing Fees
Current Period Trustee Fees
Current Period Special Servicing Fees
Principal Recovery Fees
Other Servicing Compensation--Interest on Advances
Total
Net Aggregate PPIS Allocable to the Bonds
Trust Fund Expenses
Current Realized Losses on Mortgage Loans
Cumulative Realized Losses on Mortgage Loans
</TABLE>
<PAGE>
ABN AMRO
LaSalle National Bank
Administrator:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1625
Chicago, IL 60674-4107
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
OTHER RELATED INFORMATION
<TABLE>
<CAPTION>
REO PROPERTY SOLD OF DISPOSED OF DURING THE RELATED
COLLECTION PERIOD
PORTION FINAL
REALIZED INCLUDED IN RECOVERY
LOAN LOSS SALE OTHER AVAILABLE DETERMINATION
NUMBER ATTRIBUTABLE PROCEEDS PROCEEDS FUNDS DATE
- -------- -------------- ---------- ---------- ------------- --------------
<S> <C> <C> <C> <C> <C>
1
2
3
Totals
</TABLE>
<TABLE>
<CAPTION>
REO PROPERTY INCLUDED
IN THE TRUST
MOST AGGREGATE AGGREGATE PORTION
RECENT AMOUNT AMOUNT INCLUDED IN
LOAN APPRAISAL OF NET OF OTHER AVAILABLE
NUMBER VALUATION INCOME REVENUES FUNDS
- -------- ----------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
1
2
3
Totals
</TABLE>
<PAGE>
ABN AMRO
LaSalle National Bank
Administrator:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1625
Chicago, IL 60674-4107
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
OTHER RELATED INFORMATION
<TABLE>
<CAPTION>
MORTGAGED PROPERTIES THAT BECAME REO DURING
THE PRECEDING CALENDAR MONTH
UNPAID
DEBT PRINCIPAL
SERVICE STATED BALANCE
LOAN PROPERTY COVERAGE PRINCIPAL AS OF REO
NUMBER CITY STATE TYPE RATIO BALANCE DATE
- -------- ------ ------- ---------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
Totals
</TABLE>
APPRAISAL REDUCTION AMOUNTS
<TABLE>
<CAPTION>
CURRENT TOTAL
LOAN NUMBER PERIOD REDUCTION
- ------------- --------- ----------
<S> <C> <C>
1
2
3
Totals 0.00
</TABLE>
<PAGE>
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
<TABLE>
<CAPTION>
DELINQ 1 MONTH DELINQ 2 MONTHS DELINQ 3+ MONTHS FORECLOSURE/BANKRUPTCY REO
DISTRIBUTION -------------- --------------- ---------------- ---------------------- --------------
DATE # BALANCE # BALANCE # BALANCE # BALANCE # BALANCE
- -------------- --- -------- --- ------- --- -------- --- -------- --- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
11/18/98 0 0 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
</TABLE>
CURR WEIGHTED
MODIFICATIONS PREPAYMENTS AVG.
DISTRIBUTION ------------- ----------- --------------
DATE # BALANCE # BALANCE COUPON REMIT
- -------------- --- ------- --- ------- ------ -----
11/18/98 0 0 0 0
0.00% 0.000% 0.00% 0.000%
Note: Foreclosure and REO Totals are Included in the Appropriate Delinquency
Aging Category
<PAGE>
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
DELINQUENT LOAN DETAIL
<TABLE>
<CAPTION>
PAID OUTSTANDING OUT. PROPERTY SPECIAL
DISCLOSURE DOC THRU CURRENT P&I P&I PROTECTION ADVANCE SERVICER FORECLOSURE
CONTROL # DATE ADVANCE ADVANCES** ADVANCES DESCRIPTION(1) TRANSFER DATE DATE
- -------------- ---- ----------- ----------- --------------- -------------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
BANKRUPTCY DATE
DATE REO
A. P&I ADVANCE--LOAN IN GRACE PERIOD 1. P&I ADVANCE--LOAN DELINQUENT 1 MONTH 3. P&I ADVANCE--LOAN DELINQUENT 3
MONTHS OR MORE
B. P&I ADVANCE--LATE PAYMENT BUT 2. P&I ADVANCE--LOAN DELINQUENT 2 MONTHS 4. MATURED BALLOON/ASSUMED
SCHEDULED PAYMENT
LESS THAN ONE MONTH DELINQ
</TABLE>
** Outstanding P&I Advances include the current period P&I Advance
<PAGE>
ABN AMRO
LASALLE NATIONAL BANK
Administrator:
Carissa Pogue (800)-246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
Statement Date:
Payment Date:
Prior Payment:
Record Date:
POOL TOTAL
<TABLE>
<CAPTION>
DISTRIBUTION OF PRINCIPAL BALANCES DISTRIBUTION OF PROPERTY TYPES
- --------------------------------------------------------------
- --------------------------------------------------
(2) CURRENT SCHEDULED NUMBER (2) SCHEDULED BASED ON NUMBER (2) SCHEDULED
BASED ON
BALANCES OF LOANS BALANCE BALANCE PROPERTY TYPES OF LOANS BALANCE
BALANCE
- ---------------------------- -------- ------------- -------- ---------------- -------- -------------
- --------
<S> <C> <C> <S> <C> <C>
<C>
$0 TO $ 500,000
$500,000 TO $ 1,000,000
$1,000,000 TO $ 1,500,000
$1,500,000 TO $ 2,000,000
$2,000,000 TO $ 2,500,000
$2,500,000 TO $ 3,000,000
$3,000,000 TO $ 3,500,000
$3,500,000 TO $ 4,000,000
$4,000,000 TO $ 5,000,000
$5,000,000 TO $ 6,000,000
$6,000,000 TO $ 7,000,000
$7,000,000 TO $ 8,000,000
$8,000,000 TO $ 9,000,000 TOTAL 0
0 0.00%
$9,000,000 TO $10,000,000 ---------------- -------- -------------
- --------
$10,000,000 TO $11,000,000
$11,000,000 TO $12,000,000
$12,000,000 TO $13,000,000 DISTRIBUTION OF MORTGAGE INTEREST
RATES
$13,000,000 TO $14,000,000
- --------------------------------------------------
$14,000,000 TO $15,000,000 CURRENT MORTGAGE NUMBER (2) SCHEDULED
BASED ON
$15,000,000 & ABOVE INTEREST RATE OF LOANS BALANCE
BALANCE
- ----------- -- ----------- ----------------- -------- -------------
- --------
TOTAL 0 0 0.00 % <S> <C>
<C> <C>
- ---------------------------- -------- ------------- -------- 7.000% OR LESS
AVERAGE SCHEDULED BALANCE IS 0 7.000% TO 7.125%
MAXIMUM SCHEDULED BALANCE IS 0 7.125% TO 7.375%
MINIMUM SCHEDULED BALANCE IS 0 7.375% TO 7.625%
7.625% TO 7.875%
7.875% TO 8.125%
8.125% TO 8.375%
8.375% TO 8.625%
8.625% TO 8.875%
8.875% TO 9.125%
9.125% TO 9.375%
9.375% TO 9.625%
9.625% TO 9.875%
9.875% TO 10.125%
10.125% & ABOVE
----------------- -------- -------------
- --------
TOTAL 0
0 0.00%
----------------- -------- -------------
- --------
W/AVG MORTGAGE INTEREST RATE IS
0.0000%
MINIMUM MORTGAGE INTEREST RATE IS
0.0000%
MAXIMUM MORTGAGE INTEREST RATE IS
0.0000%
</TABLE>
GEOGRAPHIC DISTRIBUTION
---------------------------------------------------
NUMBER SCHEDULED BASED ON
GEOGRAPHIC LOCATION OF LOANS BALANCE BALANCE
-------------------- -------- --------- --------
-------------------- -------- --------- --------
TOTAL 0 0 0.00%
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1988-C1
ABN AMRO Statement Date:
LA SALLE NATIONAL BANK Payment Date:
Prior Payment:
Administrator: Record Date:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
POOL TOTAL
LOAN SEASONING
<TABLE>
<CAPTION>
NUMBER (2) SCHEDULED BASED ON
NUMBER OF YEARS OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
Weighted Average Seasoning is 0.0
DISTRIBUTION OF REMAINING TERM
FULLY AMORTIZING
<CAPTION>
FULLY AMORTIZING NUMBER (2) SCHEDULED BASED ON
MORTGAGE LOANS OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
Total 0 0 0.00%
Weighted Average Months to Maturity is 0
</TABLE>
<PAGE>
DISTRIBUTION OF DSCR
<TABLE>
<CAPTION>
DEBT SERVICE
COVERAGE RATIO NUMBER (2) SCHEDULED BASED ON
(1) OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
0.500 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.375
1.375 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & above
Unknown
Total 0 0 0.00%
Weighted Average Debt Service Coverage Ratio is 0.000
</TABLE>
DISTRIBUTION OF AMORTIZATION TYPE
<TABLE>
<CAPTION>
NUMBER (2) SCHEDULED BASED ON
AMORTIZATION TYPE OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
Total 0 0 0.00%
</TABLE>
DISTRIBUTION OF REMAINING TERM
BALLOON LOANS
<TABLE>
<CAPTION>
BALLOON NUMBER (2) SCHEDULED BASED ON
MORTGAGE LOANS OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
Total 0 0 0.00%
Weighted Average Months to Maturity is 0
</TABLE>
<PAGE>
NOI AGING
<TABLE>
<CAPTION>
NUMBER (2) SCHEDULED BASED ON
NOI DATE OF LOANS BALANCE BALANCE
<S> <C> <C> <C>
1 year or less
1 to 2 years
2 Years or More
Unknown
Total 0 0 0.00%
</TABLE>
- ------------
(1) Debt Service Coverage Ratios are calculated as described in the
prospectus, values are updated periodically as new NOI figures became
available from borrowers on an asset level. Neither the Trustee,
Servicer, Special Servicer or Underwriter makes any representation as to
the accuracy of the data provided by the borrower for this calculation.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1988-C1
ABN AMRO Statement Date:
LA SALLE NATIONAL BANK Payment Date:
Prior Payment:
Administrator: Record Date:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO ACCT: 99-9999-99-9
SPECIALLY SERVICED LOAN DETAIL
<TABLE>
<CAPTION>
BEGINNING SPECIALLY
DISCLOSURE SCHEDULED INTEREST MATURITY PROPERTY SERVICED
CONTROL # BALANCE RATE DATE TYPE STATUS CODE (1) COMMENTS
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
(1) Legend:
<TABLE>
<CAPTION>
<S> <C> <C>
1) Request for waiver of Prepayment Penalty 4) Loan with Borrower Bankruptcy 7) Loans Paid Off
2) Payment default 5) Loan in Process of Foreclosure 8) Loans Returned to Master
Servicer
3) Request for Loan Modification or Workout 6) Loan now REO Property
</TABLE>
APPENDIX A
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1988-C1
ABN AMRO Statement Date:
LA SALLE NATIONAL BANK Payment Date:
Prior Payment:
Administrator: Record Date:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO ACCT: 99-9999-99-9
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
DISCLOSURE MODIFICATION MODIFICATION
CONTROL # DATE DESCRIPTION
<S> <C> <C>
</TABLE>
APPENDIX B
C-12
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
GMAC COMMERCIAL MORTGAGE CORP., AS MASTER SERVICER AND SPECIAL SERVICER
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1988-C1
ABN AMRO Statement Date:
LA SALLE NATIONAL BANK Payment Date:
Prior Payment:
Administrator: Record Date:
Carissa Pogue (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO ACCT: 99-9999-99-9
REALIZED LOSS DETAIL
<TABLE>
<CAPTION>
BEGINNING GROSS PROCEEDS AGGREGATE NET NET
PROCEEDS
DIST. DISCLOSURE APPRAISAL APPRAISAL SCHEDULED GROSS AS A % OF LIQUIDATION LIQUIDATION AS A
% OF REALIZED
DATE CONTROL # DATE VALUE BALANCE PROCEEDS SCHED PRINCIPAL EXPENSES* PROCEEDS SCHED.
BALANCE LOSS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<C> <C>
CURRENT
TOTAL 0.00 0.00 0.00
0.00 0.00
CUMULATIVE 0.00 0.00 0.00
0.00 0.00
</TABLE>
APPENDIX C
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
<PAGE>
EXHIBIT K-1
FORM OF REGULATION S TRANSFER CERTIFICATE
FOR TRANSFERS DURING RESTRICTED PERIOD
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transferor of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of October 11, 1998 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on
behalf of the holders of the GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, 1998-C1, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Principal Amount] [Notional Amount] of Certificates, in fully registered form
(each, an "Individual Certificate"), or a beneficial interest of such aggregate
[Certificate Principal Amount] [Notional Amount] in the Regulation S Global
Certificate (the "Global Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the Certificates and (i) with
respect to transfers made in accordance with Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to
a person in the United States;
(2) [at the time the buy order was originated, the
Transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside
the United States] [the transaction was executed in,
on or through the facilities of a designated offshore
securities market and neither the undersigned nor any
person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the
United States];*
(3) the transferee is not a U.S. Person within the
meaning of Rule 902(o) of Regulation S nor a person
acting for the account or benefit of a U.S. Person,
and upon completion of the transaction, the
Transferred Interest will be held with the Depository
through [Euroclear] [CEDEL];**
(4) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(5) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Seller, the Trustee, the Master Servicer and the
Fiscal Agent.
[Name of Transferor]
By: _______________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT K-2
FORM OF REGULATION S TRANSFER CERTIFICATE
FOR TRANSFERS AFTER RESTRICTED PERIOD
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transferor of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of October 11, 1998 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on
behalf of the holders of the GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, 1998-C1, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Principal Amount] [Notional Amount] of Certificates, in fully registered form
(each, an "Individual Certificate"), or a beneficial interest of such aggregate
[Certificate Principal Amount] [Notional Amount] in the Regulation S Global
Certificate (the "Global Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used but not defined herein have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the Certificates and (i) with
respect to transfers made in accordance with Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to
a person in the United States;
(2) [at the time the buy order was originated, the
Transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside
the United States] [the transaction was executed in,
on or through the facilities of a designated offshore
securities market and neither the undersigned nor any
person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the
United States];*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Seller, the Trustee, the Master Servicer and the
Fiscal Agent.
[Name of Transferor]
By: ______________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT L
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM RULE 144A GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.02(c)(ii)(A) of the Pooling and Servicing Agreement)
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class [____]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of October 11, 1998 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, Falcon Financial, LLC, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, AMRESCO Commercial Mortgage
Funding, L.P., as a Responsible Party, GMAC Commercial Mortgage Corporation, as
Master Servicer and Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate Principal
Amount] [Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Global Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Global Certificate (CUSIP No. __________) to be held with
[Euroclear] [CEDEL]* (Common Code No. ____________) through the Depositary.
In connection with such request and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a
person in the United States,
(2) [at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the transferee was outside
the United States] [the transaction was executed in,
on or through the facilities of a designated offshore
securities market and neither the transferor nor any
person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the
United States],*
(3) the transferee is not a U.S. Person within the
meaning of Rule 902(o) of Regulation S
nor a Person acting for the account or benefit of a
U.S. Person,
(4) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable,
(5) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act, and
(6) upon completion of the transaction, the beneficial
interest being transferred as described above will be
held with the Depository through [Euroclear]
[CEDEL].**
This certificate and the statements contained herein are made for your
benefit and the benefit of the Seller, the Trustee, the Master Servicer and the
Fiscal Agent.
[Insert Name of Transferor]
By: _________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT M
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM RULE 144A GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE AFTER THE RESTRICTED PERIOD
(Pursuant to Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class [____]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of October 11, 1998 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, Falcon Financial, LLC, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, AMRESCO Commercial Mortgage
Funding, L.P., as a Responsible Party, GMAC Commercial Mortgage Corporation, as
Master Servicer and Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate Principal
Amount] [Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Global Certificate (CUSIP No. ________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Global Certificate (Common Code
No. ________).
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and, (i) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the United
States;
(2) [at the time the buy order was originated, the transferee was outside
the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States] [the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any person acting on
its behalf knows that the transaction was pre-arranged with a buyer in the
United States];*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Seller, the Master Servicer, the Trustee and the
Fiscal Agent.
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM REGULATION S GLOBAL CERTIFICATE TO RULE 144A
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.02(c)(ii)(C) of the Pooling and Servicing Agreement)
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class [____]
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of October 11, 1998 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, Falcon Financial, LLC, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, AMRESCO Commercial Mortgage
Funding, L.P., as a Responsible Party, GMAC Commercial Mortgage Corporation, as
Master Servicer and Special Servicer (collectively, the "Servicer"), LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate Principal
Amount] [Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Regulation S Global Certificate (CUSIP No. _______) with
[Euroclear] [CEDEL]* (Common Code No. __________) through the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Global Certificate (CUSIP No. ____________).
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and (ii) Rule 144A under the Securities Act to a transferee
that the Transferor reasonably believes is purchasing the Certificates for its
own account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Seller, the Trustee, the Master Servicer, Fiscal
Agent and underwriter and placement agent of the offering of the Certificates.
[Insert Name of Transferor]
By:_______________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
GLOBAL CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(c)(ii)(D) of the Pooling and Servicing Agreement)
LaSalle National Bank,
as Trustee and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset Backed Securities
Trust Services Group-GS98-C1
Re: Transferor of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of October 11, 1998 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, Falcon Financial, LLC,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
AMRESCO Commercial Mortgage Funding, L.P., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, on
behalf of the holders of the GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, 1998-C1 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Principal
Amount] [Notional Amount] in a Private Global Certificate during the Restricted
Period to the undersigned (the "Transferee"). The Transferee desires to
beneficially own such transferred interest in the form of the Regulation S
Global Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify that
it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S under the
Securities Act of 1933, as amended). This certificate and the statements
contained herein are made for your benefit and the benefit of the Seller, the
Trustee and the Master Servicer.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT P
FORM OF OMNIBUS ASSIGNMENT
Goldman Sachs Mortgage Company, a New York limited partnership, having an
address at 85 Broad Street, New York, New York 10004 (the "Assignor") for good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, hereby sells, transfers, assigns, delivers, sets over and conveys,
without recourse, representation or warranty, express or implied, unto LaSalle
National Bank, a national banking association, as trustee for the GS Mortgage
Securities Corporation II, Commercial Mortgage Pass-Through Certificates Series
1998-C1 (the "Assignee"), having an address at 135 South LaSalle Street,
Chicago, Illinois 60674-4107, its successors and assigns, all right, title and
interest of the Assignor in and to those security instruments described on
Schedule A attached hereto (the "Security Instruments"), the related notes
described on Schedule A attached hereto (the "Notes"), those certain assignment
of leases and rents given in connection therewith, and all of the Assignor's
right, title and interest in any claims, collateral, insurance policies,
certificates of deposit, letters of credit, escrow accounts, performance bonds,
demands, causes of action and any other collateral arising out of and/or
executed and/or delivered in or to or with respect to the Security Instrument
and the Note, together with any other documents or instruments executed and/or
delivered in connection with or otherwise related to the Security Instrument and
the Note.
<PAGE>
IN WITNESS WHEREOF, the Assignor has executed this instrument under seal to
be effective as of the _____ day of October, 1998.
GOLDMAN SACHS MORTGAGE COMPANY,
a New York limited partnership
By: Goldman Sachs Real Estate Funding Corp.,
a Delaware corporation, its general partner
By: ___________________________________________
Name:
Title:
Dated:
By: ___________________________________________
Name:
Title:
<PAGE>
EXHIBIT Q-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Original Underwriting Information
---------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info as % Total $
Number City State Date Balance Date Service of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Prior Full Year Operating Information
-------------------------------------
As of Y-E-YYYY Normalized
Financial
Info % Total $
as of Occ Revenue NOI DSCR
Date
<TABLE>
<CAPTION>
Current Annual Operating Information "Actual" YTD Financial Information
------------------------------------ ----------------------------------
As of Y-E-YYYY Normalized Month Reported
Financial FS FS
Info as of % Total $ Start End % Total $
Date Occ Revenue NOI DSCR Date Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Change
Current & Basis
%
% Total
Occ Rev DSCR
Financial Information:
Current Full Year:
Current Full Yr. received with DSC less than 1:
Prior Full Year:
Prior Full Yr. received with DSC less than 1:
Received Required
Loans Balance Balance
# % $ % % $
<PAGE>
EXHIBIT Q-2
FORM OF DELINQUENT LOAN STATUS REPORT
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Sq Ft or Paid to Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total O/S
P&I Total O/S
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances Current Current LTM
(Taxes & Total Monthly Interest Mat. NOI
Insurance) Exposure P&I Rate Date Date LTM NOI
<S> <C> <C> <C> <C> <C>
</TABLE>
LTM Cap Rate
DSCR Assigned
<PAGE>
FORM OF DELINQUENT LOAN STATUS REPORT
<TABLE>
<CAPTION>
Value Using Valuation/ Appraisal, Loss Using
Prospectus Borrower Property NOI & Cap Appraisal BPO, or 92% Appraisal
ID Name Type City State Rate Date Internal Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Total Appraisal Expected
Estimated Reduction Transfer Resolution FCL Start FCL Sale Workout
Recovery % Realized Date Date Date Date Strategy Comments
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT Q-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Balance
when Balance at
Modification Modification sent to the
Prospectus City State or Effective Special Effective Old Rate New Rate # of Months
ID Ext Flag Date Servicer Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Old P&I New P&I Old
Maturity
<PAGE>
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
Estimated
New Months for Mod Realized Loss Interest Loss to
Prospectus ID City Maturity Change to Trust Trust Comments
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT Q-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Latest
Appraisal
Prospectus Borrower Property % Rec or Effective
ID Name Type City State from Brokers Date of Sales
Sale Opinion Sale Price
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Net Amount Scheduled Total P&I Total Servicing
Received Balance Paid Expenses Fees
from (As of (Advances) (Outstanding) Expense
Sale Resolution)
<PAGE>
FORM OF HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
<TABLE>
<CAPTION>
Date Loss
Prospectus Property Actual Losses Passed Minor Adj to
ID Borrower Type City Net Proceeds Passed Through Trust
Name Through
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Date
Minor Adj Loss % of
Passed Total Loss Scheduled
Through with Balance
Adjustment
<PAGE>
EXHIBIT Q-5
FORM OF REO STATUS REPORT
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Paid Ending
Prospectus Borrower Property Sq Ft or thru Scheduled
ID Name Type City State Units Date Balance
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total P&I Total
Advances to Expenses to
Date Date
<TABLE>
<CAPTION>
Other
Advances LTM
(Taxes & Current Maturity NOI LTM
Insurance) Total Exposure Monthly P&I Date Date LTM NOI DSCR
<S> <C> <C> <C> <C> <C>
</TABLE>
Valuation/
Cap Rate Appraisal
Assigned Date
<PAGE>
FORM OF REO STATUS REPORT
<TABLE>
<CAPTION>
Total Special
Value Appraisal/ Loss Using Appraisal Servicing
Prospectus Borrower Property using BPO or 92% Estimated Reduction Transfer
ID Name Type City NOI & Cap Internal Appraisal Recovery % Realized Date
Rate Value or BPO
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
REO Pending
Acquisition Resolution
Date Date Comments
<PAGE>
EXHIBIT Q-6
FORM OF SERVICER WATCH LIST
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
<TABLE>
<CAPTION>
Ending
Prospectus Borrower Property Scheduled Paid thru
ID Name Type City State Balance Date
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
Maturity Comment/Reason
Date LTM DSCR on Watch List
<PAGE>
EXHIBIT Q-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
As of
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C> <C>
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Underwriting 1995 1996 1997 1998 YTD
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1995 1996 1997 1998 YTD 1997-Base 1997-1996
Statement Classification Basis Normalized Normalized Normalized Variance Variance
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data:
Income Comments:
Expense Comments:
Capital Items Comments:
</TABLE>
<PAGE>
EXHIBIT Q-8
FORM OF NOI ADJUSTMENT WORKSHEET
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-
AS OF MM/DD/YY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # of months
Period Ended Underwriting 1998 YTD
Statement Classification Basis Normalized
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
Effective Gross Income
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data:
Income Comments:
Expense Comments:
Capital Items Comments:
</TABLE>
<PAGE>
EXHIBIT Q-9
CSSA SURVEILLANCE REPORTS
Type Standard Difference
Categories from
SASCO
draft
Office: INCOME: o Separate Vacancy,
Base Rent Concessions, Bad Debt
Expense Reimbursements Subtractions
Parking Income o Clarify Payroll Expense
Other Income as Unallocated Payroll
Less Vacancy Expense
Less Concessions o Add CAM Expense and
Less Bad Debt delete Janitorial
o Add Assumed Lease
EXPENSE: Obligation Expense
Management Fee o Add Marketing &
Unallocated Payroll Advertising Expense
General & Administrative o Add Other under
CAM CAPEX
Repairs & Maintenance
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Retail: INCOME: o Separate Vacancy,
Base Rent Concessions, Bad Debt
Percentage Rent Subtractions
Expense Reimbursements o Add Unallocated Payroll
Other Income Expense
Less Vacancy o Add CAM Expense and
Less Concessions delete Janitorial
Less Bad Debt o Add Other under CAPEX
EXPENSE
Management Fee
Unallocated Payroll
General & Administrative
CAM
Repairs & Maintenance
Utilities
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Multifamily: INCOME: o Make consistent with
Base Rent FNMA standard
Parking Income o Delete Storage Income
Laundry Income and Add Commercial
Commercial Income Income
Other Income o Separate Vacancy,
Less Vacancy Concessions, Bad Debt
Less Concessions Subtractions
Less Bad Debt o Delete Janitorial
expense
o Add Water & Sewer
EXPENSE: o Delete Marketing &
Management Fee Advertising
Payroll o Add Other under
General & Administrative CAPEX
Repairs & Maintenance
Utilities
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Industrial INCOME: o Separate Vacancy,
and Base Rent Concessions, Bad Debt
Warehouse: Expense Reimbursements Subtractions
Other Income o Clarify Payroll Expense
Less Vacancy as Unallocated Payroll
Less Concessions Expense
Less Bad Debt o Add Other under CAPEX
EXPENSE:
Management Fee
Unallocated Payroll
General & Administrative
Janitorial
Repairs & Maintenance
Utilities
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Health Care: INCOME: o Replace Base Rent with
Private Pay Private Pay, Medicare,
Medicare and Medicaid
Medicaid o Add Nursing/Medical
Nursing/Medical Income Income
Meals Income o Add Meals Income
o Add Auxiliary Income
Other Income o Delete Storage Income,
Less Vacancy Parking Income, and
Less Concessions Laundry Income
Less Bad Debt o Separate Vacancy,
Concessions, Bad Debt
EXPENSE: Subtractions
Management Fee o Add Nursing Expense,
Unallocated Payroll Meals Expense, and
General & Administrative Auxiliary Expense
Janitorial o Clarify Payroll Expense
Repairs & Maintenance as Unallocated Payroll
Utilities Expense
Marketing & Advertising o Add Other under
Insurance CAPEX
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Lodging INCOME: o Separate Vacancy,
Rooms Concessions, Bad Debt
Food & Beverage Subtractions
Phone o Add Reservations Fees
Banquet/Conventions under Expense
Other Department Income Add Banquet/Conventions
Other Income under Expense
o Add Unallocated Payroll
EXPENSE: under Expense
Departmental Expense: o Add Other under CAPEX
Rooms
Food & Beverage
Phone
Banquet/Conventions
Other
General Expense:
Management Fee
Franchise Fee
Reservations Fees
General & Administrative
Repairs & Maintenance
Unallocated Payroll
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Mixed Use INCOME: o Combine proposed Office
Base Rent and Retail formats
Percentage Rent
Expense Reimbursements
Parking Income
Other Income
Less Vacancy
Less Concessions
Less Bad Debt
EXPENSE:
Management Fee
Unallocated Payroll
General & Administrative
CAM
Repairs & Maintenance
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Self-storage INCOME:
Base Rent
Other Income
Less Vacancy
Less Concessions
Less Bad Debt
EXPENSE:
Management Fee
Unallocated Payroll
General & Administrative
Repairs & Maintenance
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Other INCOME: o Initial proposed format
Rental Income
Sales/Servicer Income
Expense Reimbursements
Other Income
Less Vacancy
Less Concessions
Less Bad Debt
EXPENSE:
Management Fee
Unallocated Payroll
General & Administrative
Repairs & Maintenance
Janitorial
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
Questions: In general, the CAPEX
items were kept standard
across all property types.
We should discuss whether
to keep this standardiza-
tion or remove Leasing
Commissions and Tenant
Improvements where not
really applicable.
Mobile Home Park: INCOME: o Add Laundry Income
Pad Rent o Add Utility Income
RV Rent o Separate Vacancy,
Rent on Park-owned Homes Concessions, Bad Debt
Laundry Income Subtractions
Utility Income o Delete Contract Services
Other Income o Add Other under CAPEX
Less Vacancy
Less Concessions
Less Bad Debt
EXPENSE:
Management Fee
Unallocated Payroll
General & Administrative
Repairs & Maintenance
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Other Expense
CAPEX
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other
<PAGE>
EXHIBIT Q-10
CSSA LOAN FILES
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN SETUP" FILE
----------
(DATA RECORD LAYOUT)
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Offering Document Loan Id 4 AN 123
Original Note Amount 5 Numeric 1000000.00
Original Term Of Loan 6 Numeric 240
Original Amortization Term 7 Numeric 360
Original Note Rate 8 Numeric 0.095
Original Payment Rate 9 Numeric 0.095
First Loan Payment Due Date 10 AN YYYYMMDD
Grace Days Allowed 11 Numeric 10
Interest Only (Y/N) 12 AN Y
Balloon (Y/N) 13 AN Y
Interest Rate Type 14 Numeric 1
Interest Accrual Method Code 15 Numeric 1
Interest in Arrears (Y/N) 16 AN Y
Payment Type Code 17 Numeric 1
Prepayment Lock-out End Date 18 AN YYYYMMDD
Yield Maintenance End Date 19 AN YYYYMMDD
Prepayment Premium End Date 20 AN YYYYMMDD
Prepayment Terms Description 21 AN Text
ARM Index Code 22 AN A
First Rate Adjustment Date 23 AN YYYYMMDD
First Payment Adjustment Date 24 AN YYYYMMDD
ARM Margin 25 Numeric 0.025
Lifetime Rate Cap 26 Numeric 0.15
Lifetime Rate Floor 27 Numeric 0.05
Periodic Rate Increase Limit 28 Numeric 0.02
Periodic Rate Decrease Limit 29 Numeric 0.02
Periodic Payment Adjustment Max-% 30 Numeric 0.03
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00
Payment Frequency 32 Numeric 1
Rate Reset Frequency In Months 33 Numeric 1
Payment Reset Frequency In Months 34 Numeric 1
Rounding Code 35 Numeric 1
Rounding Increment 36 Numeric 0.00125
Index Look Back In Days 37 Numeric 45
Negative Amortization Allowed (Y/N) 38 AN Y
Max Negam Allowed (% Of Orig Balance) 39 Numeric 0.075
Maximum Negam Allowed ($) 40 Numeric 25000.00
Remaining Term At Securitization 41 Numeric 240
Remaining Amortized Term At Securitization 42 Numeric 360
Maturity Date At Securitization 43 AN YYYYMMDD
Scheduled Principal Balance At Securitization 44 Numeric 1000000.00
Note Rate At Securitization 45 Numeric 0.095
Servicer And Trustee Fee Rate 46 Numeric 0.00025
Fee Rate / Strip Rate 1 47 Numeric 0.00001
Fee Rate / Strip Rate 2 48 Numeric 0.00001
Fee Rate / Strip Rate 3 49 Numeric 0.00001
Fee Rate / Strip Rate 4 50 Numeric 0.00001
Fee Rate / Strip Rate 5 51 Numeric 0.00001
Net Rate At Securitization 52 Numeric 0.00001
Periodic P&I Payment At Securitization 53 Numeric 3000.00
# Of Properties 54 Numeric 13
Property Name 55 AN Text
Property Address 56 AN Text
Property City 57 AN Text
Property State 58 AN Text
Property Zip Code 59 AN Text
Property County 60 AN Text
Property Type Code 61 AN MF
Net Square Feet At Securitization 62 Numeric 25000
# Of Units/Beds/Rooms At Securitization 63 Numeric 75
Year Built 64 AN 1990
NOI At Securitization 65 Numeric 100000.00
DSCR At Securitization 66 Numeric 2.11
Appraisal Value At Securitization 67 Numeric 1000000.00
Appraisal Date At Securitization 68 AN YYYYMMDD
Physical Occupancy At Securitization 69 Numeric 0.88
Revenue At Securitization 70 Numeric 100000.00
Operating Expenses At Securitization 71 Numeric 100000.00
Securitization Financials As Of Date 72 AN YYYYMMDD
Recourse (Y/N) 73 AN Y
Ground Lease (Y/N) 74 AN Y
Cross-Collateralized Loan Grouping 75 Numeric 9(3)
Collection Of Escrows (Y/N) 76 AN Y
Collection Of Other Reserves (Y/N) 77 AN Y
Lien Position At Securitization 78 Numeric 1
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Indentification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Offering Document Loan Id Unique Indentification Number Assigned To Each Collateral Item In The Prospectus
Original Note Amount The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan Original Number Of Months Until Maturity Of Loan
Original Amortization Term Original Number Of Months Loan Amortized Over
Original Note Rate The Note Rate At Inception Of The Note
Original Payment Rate Original Rate Payment Calculated On
First Loan Payment Due Date First Payment Date On The Mortgage Loan
Grace Days Allowed Number Of Days From Due Date Borrower Is Permitted To Remit Payment
Interest Only (Y/N) Y=Yes, N=No
Balloon (Y/N) Y=Yes, N=No
Interest Rate Type 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual, 5=Actual/366, 6=Simple,
7=78'S
Interest in Arrears (Y/N) Y=Yes, N=No
Payment Type Code See Payment Type Code Legend
Prepayment Lock-out End Date Date After Which Loan Can Be Prepaid
Yield Maintenance End Date Date After Which Loan Can Be Prepaid Without Yield Maintenance
Prepayment Premium End Date Date After Which Loan Can Be Prepaid Without Penalty
Prepayment Terms Description Description Of Prepayment Terms (Not To Exceed 50 Characters)
ARM Index Code See Arm Index Code Legend
First Rate Adjustment Date Date Note Rate Originally Changed
First Payment Adjustment Date Date Payment Originally Changed
ARM Margin Rate Added To Index Used In The Determination Of The Gross Interest Rate
Lifetime Rate Cap Maximum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Lifetime Rate Floor Minimum Rate That The Borrower Must Pay On An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit Maximum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Rate Decrease Limit Minimum Periodic Increase To The Note Rate Allowed Per The Loan Agreement
Periodic Payment Adjustment Max-% Maximum Periodic Percentage Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Periodic Payment Adjustment Max-$ Maximum Periodic Dollar Increase To The Borrowers P&I Payment Allowed Per
The Loan Agreement
Payment Frequency 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Payment Reset Frequency In Months 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rounding Code Rounding Method For Sum Of Index Plus Margin (See Rounding Code Legend)
Rounding Increment Used In Conjunction With Rounding Code
Index Look Back In Days Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) Y=Yes, N=No
Max Negam Allowed (% Of Orig Balance) Maximum Lifetime Percentage Increase To The Original Balance Allowed
Per The Loan Agreement
Maximum Negam Allowed ($) Maximum Lifetime Dollar Increase To The Original Balance Allowed
Per The Loan Agreement
Remaining Term At Securitization Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amortized Term At Securitization Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization The Scheduled Maturity Date Of The Mortgage Loan At Securitization
Scheduled Principal Balance At Securitization The Scheduled Principal Balance Of The Mortgage Loan At Securitization
Note Rate At Securitization Cutoff Annualized Gross Interest Rate Applicable To The Calculation Of
Scheduled Interest
Servicer And Trustee Fee Rate Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 2 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 3 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 4 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate / Strip Rate 5 Cutoff Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Rate At Securitization Cutoff Annualized Interest Rate Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Securitization The Periodic Scheduled Principal & Interest Payment
# Of Properties The Number Of Properties Underlying The Mortgage Loan
Property Name If Number Of Properties Is Greater Than 1 Then "Various"
Property Address If Number Of Properties Is Greater Than 1 Then "Various"
Property City If Number Of Properties Is Greater Than 1 Then "Various"
Property State If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code If Number Of Properties Is Greater Than 1 Then "Various"
Property County If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code If Number Of Properties Is Greater Than 1 Then "Various" (See Property Type
Code Legend)
Net Square Feet At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
# Of Units/Beds/Rooms At Securitization If Number Of Properties Is Greater Than 1 Then "Various"
Year Built If Number Of Properties Is Greater Than 1 Then "Various"
NOI At Securitization Net Operating Income At Securitization
DSCR At Securitization DSCR At Securitization
Appraisal Value At Securitization Appraisal Value At Securitization
Appraisal Date At Securitization Appraisal Date At Securitization
Physical Occupancy At Securitization Physical Occupancy At Securitization
Revenue At Securitization Revenue At Securitization
Operating Expenses At Securitization Expenses At Securitization
Securitization Financials As Of Date Securitization Financials As Of Date
Recourse (Y/N) Y=Yes, N=No
Ground Lease (Y/N) Y=Yes, N=No
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) Y=Yes, N=No
Collection Of Other Reserves (Y/N) Y=Yes, N=No
Lien Position At Securitization 1=First, 2=Second...
</TABLE>
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN PERIODIC" UPDATE FILE
-------------
(DATA RECORD LAYOUT)
<TABLE>
<CAPTION>
Field Name Field Number Type Format
<S> <C> <C> <C>
Transaction Id (pool ID) 1 AN XXX97001
Group Id (subgroup within a pool) 2 AN XXX9701A
Loan Id (loan number) 3 AN 00000000012345
Prospectus Id 4 AN 123
Distribution Date 5 AN YYYYMMDD
Current Beginning Scheduled Balance 6 Numeric 100000.00
Current Ending Scheduled Balance 7 Numeric 100000.00
Paid To Date 8 AN YYYYMMDD
Current Index Rate 9 Numeric 0.09
Current Note Rate 10 Numeric 0.09
Maturity Date 11 AN YYYYMMDD
Servicer and Trustee Fee Rate 12 Numeric 0.00025
Fee Rate/Strip Rate 1 13 Numeric 0.00001
Fee Rate/Strip Rate 2 14 Numeric 0.00001
Fee Rate/Strip Rate 3 15 Numeric 0.00001
Fee Rate/Strip Rate 4 16 Numeric 0.00001
Fee Rate/Strip Rate 5 17 Numeric 0.00001
Net Pass-Through Rate 18 Numeric #VALUE!
Next Index Rate 19 Numeric 0.09
Next Note Rate 20 Numeric 0.09
Next Rate Adjustment Date 21 AN YYYYMMDD
Next Payment Adjustment Date 22 AN YYYYMMDD
Scheduled Interest Amount 23 Numeric 1000.00
Scheduled Principal Amount 24 Numeric 1000.00
Total Scheduled P&I Due 25 Numeric 1000.00
Neg am/Deferred Interest Amount 26 Numeric 1000.00
Unscheduled Principal Collections 27 Numeric 1000.00
Other Principal Adjustments 28 Numeric 1000.00
Liquidation/Prepayment Date 29 AN YYYYMMDD
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
Liquidation/Prepayment Code 32 Numeric 1
Most Recent ASER $ 33 Numeric 1000.00
Most Recent ASER Date 34 AN YYYYMMDD
Cumulative ASER $ 35 Numeric 1000.00
Actual Balance 36 Numeric 100000.00
Total P&I Advance Outstanding 37 Numeric 1000.00
Total T&I Advance Outstanding 38 Numeric 1000.00
Other Expense Advance Outstanding 39 Numeric 1000.00
Status of Loan 40 AN 1
In Bankruptcy 41 AN Y
Foreclosure Date 42 AN YYYYMMDD
REO Date 43 AN YYYYMMDD
Bankruptcy Date 44 AN YYYYMMDD
Net Proceeds Received on Liquidation 45 Numeric 100000.00
Liquidation Expense 46 Numeric 100000.00
Realized Loss to Trust 47 Numeric 10000.00
Date of Last Modification 48 AN YYYYMMDD
Modification Code 49 Numeric 1
Modified Note Rate 50 Numeric 0.09
Modified Payment Rate 51 Numeric 0.09
Preceding Fiscal Year Revenue 52 Numeric 1000.00
Preceding Fiscal Year Expenses 53 Numeric 1000.00
Preceding Fiscal Year NOI 54 Numeric 1000.00
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00
Preceding Fiscal Year DSCR 56 Numeric 2.55
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85
Preceding FY Financial As of Date 58 AN YYYYMMDD
Second Preceding FY Revenue 59 Numeric 1000.00
Second Preceding FY Expenses 60 Numeric 1000.00
Second Preceding FY NOI 61 Numeric 1000.00
Second Preceding FY Debt Service 62 Numeric 1000.00
Second Preceding FY DSCR 63 Numeric 2.55
Sec Preceding FY Physical Occupancy 64 Numeric 0.85
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
Most Recent Appraisal Date 74 AN YYYYMMDD
Most Recent Appraisal Value 75 Numeric 100000.00
Workout Strategy Code 76 Numeric 1
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD
Most Recent Master Service Return Date 78 AN YYYYMMDD
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD
Year Last Renovated 80 AN 1997
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
<S> <C>
Transaction Id (pool ID) Unique Issue Identification Mnemonic
Group Id (subgroup within a pool) Unique Identification Number Assigned To Each Loan Group Within An Issue
Loan Id (loan number) Unique Identification Number Assigned To Each Collateral Item In A Pool
Prospectus Id Unique Identification Number Assigned To Each Collateral Item In The Prospectus
Distribution Date Date Payments Made To Certificateholders
Current Beginning Scheduled Balance Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
Current Ending Scheduled Balance Outstanding Scheduled Principal Balance At The End Of The Current Period
Paid To Date Due Date Of The Last Interest Payment Received
Current Index Rate Index Rate Used In The Determination Of The Current Period Gross Interest Rate
Current Note Rate Annualized Gross Rate Applicable To The Calculation Of The Current Period
Scheduled Interest
Maturity Date Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 2 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 3 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 4 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 5 Annualized Fee/Strip Netted Against Current Note Rate To Determine Net
Pass-Through Rate
Net Pass-Through Rate Annualized Interest Rate Applicable To The Calculation Of The Current Period
Remittance Interest
Next Index Rate Index Rate Used In The Determination Of The Next Period Gross Interest Rate
Next Note Rate Annualized Gross Interest Rate Applicable To The Calculation Of The Next Period
Scheduled Interest
Next Rate Adjustment Date Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date Date Scheduled P&I Amount Is Next Scheduled To Change
Scheduled Interest Amount Scheduled Gross Interest Payment Due For The Current Period
Scheduled Principal Amount Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due Scheduled Principal And Interest Payment Due For The Current Period
Neg am/Deferred Interest Amount Negative Amortization/Deferred Interest Amount Due For The Current Period
Unscheduled Principal Collections Unscheduled Payments Of Principal Received During The Related Collection Period
Other Principal Adjustments Unscheduled Principal Adjustments For The Related Collection Period
Liquidation/Prepayment Date Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yield Maint Received Additional Payment Required From Borrower Due To Prepayment Of Loan Prior
To Maturity
Prepayment Interest Excess (Shortfall) Scheduled Gross Interest Applicable To The Prepayment Amount
Liquidation/Prepayment Code See Liquidation/Prepayment Codes Legend
Most Recent ASER $ Excess Of The Principal Balance Over The Defined Appraisal Percentage
Most Recent ASER Date Date ASER Amount Applied To Loan
Cumulative ASER $ Cumulative ASER Amount
Actual Balance Outstanding Actual Principal Balance At the End of The Current Period
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Status of Loan See Status Of Loan Legend
In Bankruptcy Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date Date Of Foreclosure
REO Date Date Of REO
Bankruptcy Date Date of Bankruptcy
Net Proceeds Received on Liquidation Net Proceeds Received On Liquidation To Be Remitted To The Trust Per
The Trust Documentation
Liquidation Expense Expenses Associated With The Liquidation To Be Netted From The Trust Per
The Trust Documentation
Realized Loss to Trust Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification Date Loan Was Modified
Modification Code See Modification Codes Legend
Modified Note Rate Note Rate Loan Modified To
Modified Payment Rate Payment Rate Loan Modified To
Preceding Fiscal Year Revenue Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI Preceding Fiscal Year Net Operating Income
Preceding Fiscal Year Debt Service Amt. Preceding Fiscal Year Debt Service Amount
Preceding Fiscal Year DSCR Preceding Fiscal Year Debt Service Coverage Ratio
Preceding Fiscal Year Physical Occupancy Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses Second Preceding Fiscal Year Expenses
Second Preceding FY NOI Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR Second Preceding Fiscal Year Debt Service Coverage Ratio
Sec Preceding FY Physical Occupancy Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Financial As of Date Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR Most Recent Fiscal Year To Date Debt Service Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date The Date Of The Latest Available Appraisal For The Property
Most Recent Appraisal Value The Latest Available Appraisal Value For The Property
Workout Strategy Code See Workout Strategy Codes Legend
Most Recent Spec Service Transfer Date Date Transferred To The Special Servicer
Most Recent Master Service Return Date Date Returned To The Master Servicer
Date Asset is Expected to Be Resolved Date Asset Is Expected To Be Resolved
Year Last Renovated Year Property Last Renovated
</TABLE>
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY" FILE
--------
(DATA RECORD LAYOUT)
Field
Field Name Number Type Format
- ---------- ------ ---- ------
Transaction Id 1 AN XXX97001
Loan Id 2 AN 00000000012345
Prospectus Loan ID 3 AN 123
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at
Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant (Tenant Name) 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant (Tenant Name) 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
3rd Largest Tenant (Tenant Name) 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000.00
Operating Expenses At Securitization 46 Numeric 1000000.00
NOI At Securitization 47 Numeric 1000000.00
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
Preceding Fiscal Year DSCR 58 Numeric 1.3
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000.00
Second Preceding FY Expenses 62 Numeric 1000000.00
Second Preceding FY NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service 64 Numeric 1000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
<PAGE>
<TABLE>
<CAPTION>
Field Name Description
- ---------- -----------
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Loan Id Unique Indentification Number Assigned To Each Collateral Item In A Pool
Prospectus Loan ID Unique Indentification Number Assigned To Each Collateral Item In
The Prospectus
Property ID Should contain Prospectus ID and property identifier, e.g., 1001-001,
1000-002
Distribution Date
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed
Property Name
Property Address
Property City
Property State
Property Zip Code
Property County
Property Type Code
Year Built
Year Last Renovated
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS, OT - SF
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC - Units
Property Status 1=FCL, 2-REO, 3=Defeased, 4=partial Releases, 5=Released, 6=Same as
at Securitization
Allocated Percentage of Loan at Securitization Issuer to allocate loan % attributable to property for multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current SPB for
associated loan
Current Allocated Loan Amount Maintained by servicer
Ground Lease (Y/N) Either Y=Yes, S=Subordinate, N=No ground lease
Other Escrow / Reserve Balances
Most Recent Appraisal Date
Most Recent Appraised Value
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing
Foreclosure Date
REO Date
Occupancy % Map to Most Recent Fiscal YTD Physical Occupancy in CSSA, multiply times
Current Allocated %
Occupancy Date
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of Largest Tenant
2nd Largest Tenant (Tenant Name) For Office, WH, Retail, Industrial, *Only if disclosed in the offering
document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant (Tenant Name)
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date
Revenue At Securitization
Operating Expenses At Securitization
NOI At Securitization
DSCR At Securitization Multiply times the Allocated % at Securitization
Appraisal Value At Securitization
Appraisal Date At Securitization
Physical Occupancy At Securitization Multiply times the Allocated % at Securitization
Date of Last Inspection
Preceding FY Financial As of Date
Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI
Preceding Fiscal Year Debt Service Amt
Preceding Fiscal Year DSCR Multiply times the Allocated % at Securitization
Preceding Fiscal Year Physical Occupancy Multiply times the Allocated % at Securitization
Sec Preceding FY Financial As of Date
Second Preceding FY Revenue
Second Preceding FY Expenses
Second Preceding FY NOI
Second Preceding FY Debt Service
Second Preceding FY DSCR
Second Preceding FY Physical Occupancy
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Field Name Relationship to Corresponding CSSA 100.1 Field
- ---------- ----------------------------------------------
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with "Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with "Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop and all same then populate S61 with property type otherwise "Various".
Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
Property Status If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow / Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, than
populate P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71=Sum((Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z) * (Occupancy Prop Z)). If missing one, then, "00000"
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...
((Allocated % at Sec. Prop Z) * (DSCR Prop Z). If missing one, "00000"
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date, otherwise, "000000+K23K46".
K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
</TABLE>
<PAGE>
EXHIBIT Q-11
CSSA PROPERTY FILE
CSSA STANDARD INFORMATION PACKAGE
Executive Summary
The CSSA Post Issuance Committee presents the CSSA Standard Information Package
for CMBS transactions. This Package combines old and new standards. There are 3
parts to the information package:
1) The CSSA Surveillance Reports
2) The CSSA Loan Files; a "Setup" file & a "Monthly Update" file.
3) The CSSA Property File
** Note - In the future the committee will discuss the inclusion of a fourth
part, the CSSA Financial. This file will furnish the reader with the operating
system in a file format.
The CSSA Surveillance Reports are provided in addition to the regular
certificate holders remittance reports by the trustee. The surveillance reports
can be divided into three types of reports:
1) Property Financial Statement Reports; Comparative Financial Report
Operating Statement
NOI Adjustment Worksheet
2) Status Reports; Watch List Report
The top line of each report contains codes that ties the CSSA loan file to the
report data. For instance S4 means the 4th line of the CSSA loan setup file. "S"
signifies set-up; "P" is for periodic update.
Part 2 and 3 of the CSSA Standard Information Package provides the investor with
Standard files at the time of securitization and each following month. The
prospectus should include the CSSA Loan Set up file and CSSA Property file on
the diskette. Subsequently each month the trustee will post on their bulletin
board or internet web site a copy of the CSSA Loan Update file and a new copy of
the property file.
The loan file provided at issuance contains all the information as of closing.
Then an update file with current balance, rate, maturity date, and so forth will
be provided each following month.
The CSSA Property file provided at closing comprises all of the information
related to the property such as location, type, DSCR, NOI, Revenue. This file,
updated with any changes in DSCR, NOI, occupancy, allocated loan amounts, etc.
will be provided on the remittance day of each month.
<PAGE>
Reporting For Securitization
The following reports are the standard CMBS reports. They are usually shown
as an exhibit in the prospectus. Depending on the deal they are completed by
either the master or special servicer and distributed by the trustee and
sometimes accessible from the master servicer.
1. Comparative Financial Status Report:
o to the extent provided by the related Mortgagor, among other things
the occupancy, revenue, net operating income and debt service coverage
ratio for each of the three periods;
(i) the most current available year-to-date
(ii) the previous two full fiscal years and
(iii) the "base year" (representing the original underwriting
information used as of the cut-off Date)
2. Operating Statement Analysis Report:
o Prepared by the servicer or special servicer for each loan showing a
comparison of the related Mortgagors financial statements
"Normalized":
(i) base year (underwriters numbers)
(ii) the previous two full years "normalized"
(iii) the current year "normalized"
(iv) and any year to date information or trailing 12 months
3. NOT Adjustment Worksheet:
o Within 30 days of receipt of the annual operating statement by the
Servicer (or 10 days of receipt by the Special Servicer with respect
to any specially serviced loan). Showing the methodology used to
normalize the borrowers numbers. The "Normalized" numbers are then
placed in the "current year" column of the "Operating Statement
Analysis Report".
4. Watch List:
o any loan in jeopardy of becoming a specially serviced loan.
(i) drop in annual debt service coverage or trailing 12 months
(ii) approaching maturity
(iii) loss of major tenant or major tenant in bankruptcy
(iv) servicer may put any loan on watch.
o Loans can be removed from the watch list when determined it is not in
jeopardy of becoming specially serviced.
5. Delinquent Loan Status Report:
o those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation for such
report:
(i) delinquent 30-59 days
(ii) delinquent 60-89 days
(iii) delinquent 90 days or more
(iv) current but specially serviced or in foreclosure but not REO
property.
6. REO Status Report:
o with respect to REO property that was included in the Trust Fund as of
the close of business on the Determination Date:
(i) the acquisition date of such REO property
(ii) the amount of income collected with respect to any REO property
net or expenses
(iii) the value of the REO property based on the most recent appraisal
or other valuation thereof available to the servicer as of such
date of determination (including any prepared internally by the
Special Servicer)
7. Historical Loan Modification Report:
o those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such
report:
(i) describes all loans that have been modified or the maturity date
has been extended, both for the current period and historically
(ii) lists all realized losses taken by the trust as well as an
estimate of potential losses because of an interest rate change,
set forth on a Mortgage Loan-by-Mortgage Loan basis.
(iii) since the Cut-Off Date, showing the original and the revised
terms.
8. Historical Loss Estimate Report:
o those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such
report:
(i) the aggregate amount of liquidation proceeds and liquidation
expenses both for the current period and historically
(ii) the amount of Realized Losses occurring during the related
prepayment period and historically, set forth on a Mortgage
Loan-by-Mortgage Loan basis.
Using the Reporting
Debt Service Reports
- --------------------
Level 1
-------
Compares normalized DSC, NOI and Revenue
Comparative Financial fiscal year end information to underwriting.
"monthly" In spread sheet format. One line per
property. Used to target loans for a closer
look.
Level 2
-------
A property level summary of the borrowers
Operating Statement normalized current financial information
compared to underwriting as well as year
"quarterly" to date. Shows revenue and standard
expense line items. One page per property
showing revenue and expense details.
Level 3
-------
Each year the servicer "normalizes"
NOI Adjustment Worksheet the Operating Statement numbers and
this shows any changes the servicer
"annually" made to normalize. It explains the
difference between the borrowers
statement and the operating statement.
Status Reports:
- --------------
Prepared by the servicer to list all loans
Watch List that are in jeopardy of becoming specially
"monthly" serviced.
<PAGE>
Where is the Information?
On each deal the servicers and trustees have different methods of providing the
information. This is good because they are all competing to provide information
in the best way but bad because it is confusing to the investor. The information
provided can even be different for each deal within each servicer. Technology is
constantly improving and everyone keeps adding new information and new ways to
access the information.
Where to find the information out there!
================================================================================
Trustee
-------------- -------------- ---------------------------
Download File Certificate For all other Information
CSSA Loan Holder Reports Call the Administrator
CSSA Property
-------------- -------------- ---------------------------
-------------- -------------- -----------------------
Bulletin Board Fax System Internet
-------------- -------------- -----------------------
Bankers Trust Chase State Street
Chase LaSalle
LaSalle State Street
State Street
================================================================================
Servicer
--------------- ------------------ --------------------------
Dial Up System Internet Must Call for Additional
Information
(not for all deals
serviced)
--------------- ------------------ --------------------------
Midland AMRESCO Bankers Trust*
BOMCC Bank of America
GE** First Union GE
Midland GMAC
Mellon
Pacific Mutual
* Sold servicing to Mellon
** Used by Rating agencies and special servicers only
<PAGE>
FUTURE REPORTING VISION
(Can it happen?)
CSSA Deal Information Page
--------------------------------------------
(List of all CMBS Deals)-currently exists
--------------------------------------------
Select Any CMBS Deal
(the following information does not exist at this time)
-------------------------------------------------------
Gives General Information
1) Trustee (Click and jumps to web site) - Give
Administrator's phone number
2) Servicer (Click and jumps to web site)
3) Special Servicer
4) Underwriter
5) Rating Agencies (Click and jumps to web site)
6) What information is available and where
(This will describe how to get to this information)
a) Certificate Holder Reports
b) CSSA "Loan" File
c) CSSA "Property" File
d) Debt service reports (Comparative, Operating & NOI)
e) Status reports(Watch)
6) Other Information
Dated:
<PAGE>
EXHIBIT R
FORM OF ABN AMRO LETTER OF CREDIT
ABN AMRO BANK N.V.
OCTOBER 27, 1998
ISSUING BANK: ABN AMRO BANK, N.V. NEW YORK TRADE PROCESSING CENTER
335 MADISON AVENUE
NEW YORK, NEW YORK 10017
EFFECTIVE DATE: OCTOBER 29, 1998
APPLICANT: THE GOLDMAN SACHS GROUP, L.P.
10 HANOVER SQUARE - 20TH FLOOR
NEW YORK, NEW YORK 10005
ATTN: MADELINE A. GILLIGAN
ACCOUNT PARTY: GS MORTGAGE SECURITIES CORPORATION II
85 BROAD STREET
NEW YORK, NEW YORK 10004
ATTN: MR. MARVIN KABATZNICK
BENEFICIARY: LASALLE NATIONAL BANK AS TRUSTEE FOR THE HOLDERS
OF GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, OR ANY SUCCESSOR TRUSTEE FOR SUCH HOLDERS
135 S. LASALLE STREET, SUITE 1825, 18TH FLOOR
CHICAGO, ILLINOIS 60674
ATTN: ASSET-BACKED SECURITIES TRUST SERVICES
MR. RUSSELL GOLDENBERG
TELEPHONE NO.: 312-904-732
FAX NO.: 312-904-2084
DEAR SIR OR MADAM:
BY ORDER OF GS MORTGAGE SECURITIES CORPORATION II WE HAVE ESTABLISHED THIS
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER SN20539 IN FAVOR OF THE BENEFICIARY
FOR DRAWING(S) UP TO, BUT NOT MORE THAN, USD2,990,126.00 EFFECTIVE OCTOBER 29,
1998, AND EXPIRING APRIL 29, 1999 AT THE COUNTERS OF ABN AMRO BANK N.V., NEW
YORK TRADE PROCESSING CENTER UPON OUR CLOSE OF BUSINESS (I.E. 5:00 PM NEW YORK
CITY TIME).
WE HEREBY UNDERTAKE TO HONOR PROMPTLY THE BENEFICIARY'S SIGHT DRAFT(S) DRAWN ON
ABN AMRO BANK N.V., NEW YORK TRADE PROCESSING CENTER IN STRICT CONFORMITY WITH
THIS CREDIT, INDICATING OUR CREDIT NUMBER SN20523, FOR AN AMOUNT UP TO BUT NOT
TO EXCEED THE TOTAL VALUE OF THIS LETTER OF CREDIT, ACCOMPANIED BY THE
BENEFICIARY'S STATEMENT PURPORTEDLY SIGNED BY AN OFFICER READING AS FOLLOWS:
"THE AMOUNT OF THE DRAFT ACCOMPANYING THIS STATEMENT REPRESENTS AN AMOUNT TO
WHICH WE ARE ENTITLED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING
AGREEMENT, DATED AS OF OCTOBER 11, 1998, RELATING TO THE GS MORTGAGE SECURITIES
CORPORATION II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1."
EXCEPT AS EXPRESSLY STATED HEREIN THIS UNDERTAKING IS NOT SUBJECT TO ANY
CONDITION OR QUALIFICATION. THE OBLIGATION OF THE BANK UNDER THIS LETTER OF
CREDIT SHALL BE THE INDIVIDUAL OBLIGATION OF THE BANK, IN NO WAY CONTINGENT UPON
REIMBURSEMENT WITH RESPECT THERETO.
PARTIAL DRAWINGS ARE PERMITTED.
SHOULD YOU HAVE OCCASION TO COMMUNICATE WITH US REGARDING THIS LETTER OF CREDIT,
KINDLY DIRECT YOUR COMMUNICATION TO THE ATTENTION OF OUR LETTER OF CREDIT
DEPARTMENT, MAKING SPECIFIC REFERENCE TO OUR LETTER OF CREDIT NUMBER SN 20523.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NO. 500.
TRULY YOURS,
ABN AMRO BANK N.V.
_______________________________ ____________________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
- ----------
* Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b).
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
* Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
* Select appropriate depository.
<PAGE>
ANNEX A
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Mortgage Loan Schedule - GSMC Retained Interest Loans
<TABLE>
<CAPTION>
Current Current
------- -------
Loan Monthly Interest
---- ------- --------
Number Borrower Name Payment Rate Interest Accrual Method Net Rate Original Balance
------ ------------- ------- ---- ----------------------- -------- ----------------
<S> <C> <C> <C> <C> <C>
09-0001160 Patro, Ltd. 25,865.68 6.6000 Actual Days / 360 Year-Days 6.4725 4050000.00
09-0001163 Lancaster Mobile Homes Estates Limi 18,296.27 6.1600 Actual Days / 360 Year-Days 6.0325 3000000.00
09-0001167 Centerra Marketplace, Inc. 47,651.41 6.1700 Actual Days / 360 Year-Days 6.0425 6514000.00
09-0001168 Clearview - Kenosha, LLC 141,311.52 6.8800 Actual Days / 360 Year-Days 6.7525 21500000.00
ANADC Lowe Enterprises, Inc./Ohio Public 385,177.08 6.7500 Actual Days / 360 Year-Days 6.6225 47000000.00
MH0020 Grand Valley Village LP & GVV Mobil 29,344.34 6.4900 Actual Days / 360 Year-Days 6.3625 4350000.00
MU0036 Landi, LLC 13,813.69 7.1400 Actual Days / 360 Year-Days 7.0125 1930000.00
MU0114 Landi, LLC 4,401.77 7.1400 Actual Days / 360 Year-Days 7.0125 615000.00
O0422 Enterprise Center Properties, Inc. 24,193.15 7.1000 Actual Days / 360 Year-Days 6.9725 3600000.00
R0463 Ruston Center, L.L.C. 32,560.85 7.0900 Actual Days / 360 Year-Days 6.9625 4850000.00
R0886 Landi, LLC 4,008.12 7.1400 Actual Days / 360 Year-Days 7.0125 560000.00
R0887 Landi, LLC 8,195.17 7.1400 Actual Days / 360 Year-Days 7.0125 1145000.00
</TABLE>
<TABLE>
<CAPTION>
Original
--------
Loan Original Remaining Maturity Amortization Remaining Cut-off Date
---- -------- --------- --------------------- --------- ------------
Number Borrower Name Loan Term Loan Term Date Term Amortization Term Balance
------ ------------- --------- --------- ---- ---- ----------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
09-0001160 Patro, Ltd. 120 120 10/1/08 360 360 4050000.00
09-0001163 Lancaster Mobile Homes Estates Limi 120 120 10/1/08 360 360 3000000.00
09-0001167 Centerra Marketplace, Inc. 240 240 10/1/18 240 240 6514000.00
09-0001168 Clearview - Kenosha, LLC 120 120 10/1/08 360 360 21500000.00
ANADC Lowe Enterprises, Inc./Ohio Public 120 120 10/11/08 300 47000000.00
MH0020 Grand Valley Village LP & GVV Mobil 120 120 10/1/08 300 300 4350000.00
MU0036 Landi, LLC 120 120 10/1/08 300 300 1930000.00
MU0114 Landi, LLC 120 120 10/1/08 300 300 615000.00
O0422 Enterprise Center Properties, Inc. 120 120 10/1/08 360 360 3600000.00
R0463 Ruston Center, L.L.C. 120 120 10/1/08 360 360 4850000.00
R0886 Landi, LLC 120 120 10/1/08 300 300 560000.00
R0887 Landi, LLC 120 120 10/1/08 300 300 1145000.00
</TABLE>
<TABLE>
<CAPTION>
Number of Anticipated
--------- -----------
Loan Cut-off Properties Repayment
---- ------- ---------- ---------
Number Borrower Name Date LTV Servicing Fee Securing Loan Date Seller Loan Pool
------ ------------- -------- ------------- ------------- ---- ------ ---------
<S> <C> <C> <C> <C> <C> <C>
09-0001160 Patro, Ltd. 82 0.1275 1 Archon Financial Group 1
09-0001163 Lancaster Mobile Homes Estates Limi 48 0.1275 1 Archon Financial Group 1
09-0001167 Centerra Marketplace, Inc. 69 0.1275 1 Archon Financial Group 1
09-0001168 Clearview - Kenosha, LLC 79 0.1275 1 Archon Financial Group 2
ANADC Lowe Enterprises, Inc./Ohio Public 54 0.1275 1 Goldman Sachs Group 1
MH0020 Grand Valley Village LP & GVV Mobil 75 0.1275 1 Central Park Capital Group 1
MU0036 Landi, LLC 69 0.1275 1 Central Park Capital Group 2
MU0114 Landi, LLC 62 0.1275 1 Central Park Capital Group 2
O0422 Enterprise Center Properties, Inc. 75 0.1275 2 Central Park Capital Group 2
R0463 Ruston Center, L.L.C. 71 0.1275 1 Central Park Capital Group 2
R0886 Landi, LLC 68 0.1275 1 Central Park Capital Group 2
R0887 Landi, LLC 74 0.1275 1 Central Park Capital Group 2
</TABLE>
<TABLE>
<CAPTION>
GSMC
----
Retained
--------
Loan Interest
---- --------
Number Borrower Name Amount
------ ------------- ------
<S> <C> <C>
09-0001160 Patro, Ltd. 20,047.50
09-0001163 Lancaster Mobile Homes Estates Limi 4,620.00
09-0001167 Centerra Marketplace, Inc. 17,862.84
09-0001168 Clearview - Kenosha, LLC 61,633.33
ANADC Lowe Enterprises, Inc./Ohio Public -
MH0020 Grand Valley Village LP & GVV Mobil 17,252.62
MU0036 Landi, LLC 9,952.37
MU0114 Landi, LLC 3,171.35
O0422 Enterprise Center Properties, Inc. 19,170.00
R0463 Ruston Center, L.L.C. 15,282.89
R0886 Landi, LLC 2,887.74
R0887 Landi, LLC 5,904.38
</TABLE>
<PAGE>
ANNEX B
Representations and Warranties
with Respect to Each Mortgage Loan
With respect to each Mortgage Loan for which it is shown on the Mortgage
Loan Schedule as the Responsible Party, except as disclosed in Annex D, each
Responsible Party represents and warrants, in each case to the other parties
hereto and for the benefit of the Certificateholders, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof by the Responsible Party to
the Seller (or, in the case of Mortgage Loans as to which either ACLI or ACMFLP
is the Responsible Party, immediately prior to the transfer of such Mortgage
Loans to GSMC), such Responsible Party 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 servicer or a sub-servicer to service or primary service such
Mortgage Loan). Immediately prior to the transfer thereof by GSMC to the Seller
of Mortgage Loans as to which either ACLI or ACMFLP is the Responsible Party,
GSMC 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 servicer or a sub-servicer to
service or primary service such as Mortgage Loan) (assuming the accuracy of the
representations and warranties in this paragraph (i) made by ACLI and ACMFLP).
(ii) The Responsible Party had full right and authority to sell, assign and
transfer such Mortgage Loan to the Seller (or, in the case of Mortgage Loans as
to which either ACLI or ACMFLP is the Responsible Party, to GSMC). GSMC had full
right and authority to sell, assign and transfer the Mortgage Loans as to which
either ACLI or ACMFLP is the Responsible Party, (assuming the accuracy of the
representations and warranties in this paragraph (ii) made by ACLI and ACMFLP).
(iii) The information pertaining to such Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of the
Cut-off Date.
(iv) Each Mortgage Loan was not, as of the Cut-off Date or at any time
during the twelve-month period prior thereto, more than 30 days delinquent in
respect of any Monthly Payment of principal and/or interest required thereunder,
without giving effect to any applicable grace period.
(v) In reliance upon the title insurance policy (or binding commitment
therefor) described in sub-paragraph (vi) below, each Mortgage securing such
Mortgage Loan constitutes a valid first lien upon the related Mortgage Property,
including, without limitation, all buildings located thereon and all fixtures
attached thereto, subject only to (and such Mortgaged Property is free and clear
of all encumbrances and liens having priority over the lien of such Mortgage,
except for) (A) the lien of current real property taxes and assessments not yet
due and payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, (C) the right of tenants (whether
under ground leases or space leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases), (D) 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 other
matters to which like properties are commonly subject and (E) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the foregoing
clauses (A), (B), (C), (D) and (E) collectively, "Permitted Encumbrances"). Such
Permitted Encumbrances do not materially interfere with the security intended to
be provided by the related Mortgage(s) (or, with respect to each Credit Lease
Mortgage Loan, the Credit Lease and Lease Policy), the current use or value of
the related Mortgaged Property, or the current ability of such Mortgaged
Property to generate net operating income sufficient to service the Mortgage
Loan.
(vi) The lien of each related Mortgage is insured by an ALTA lender's title
insurance policy, or its equivalent as adopted in the applicable jurisdiction,
issued by a title insurance company qualified to do business in the jurisdiction
in which the related Mortgaged Property is located, insuring the originator of
the related Mortgage Loan, its successors and assigns, as to the first priority
lien of the Mortgage in the original principal amount of the related Mortgage
Loan after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of any
Mortgage Loan, a policy meeting the foregoing description is evidenced by a
commitment for title insurance "marked-up" at the closing of such Mortgage
Loan). Such 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 Responsible Party's knowledge as of the Closing Date, no
material claims have been made thereunder and no claims have been paid
thereunder (and the Responsible Party has not received notice of any material
claims having been made or paid thereunder). No holder of the related Mortgage
has done, by act or omission, 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) The Responsible Party has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to such Mortgage
Loan (or, with respect to each Credit Lease Mortgage Loan, the Credit Lease or
Lease Policy).
(ix) (A) The Responsible Party has not received actual notice that there is
any proceeding pending or threatened for the total or partial condemnation of
the related Mortgaged Property and (B) as of the date of origination there was
no, and as of the Closing Date the Responsible Party has not received actual
notice of, any material damage at the related Mortgaged Property that materially
and adversely affects the value of such Mortgaged Property (except in such case
where an escrow of funds exists sufficient to effect the necessary repairs and
maintenance).
(x) At origination, such Mortgage Loan complied in all material respects
with all requirements of federal, state and local laws, including, without
limitation, laws pertaining to usury, relating to the origination of such
Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed, and
there is no requirement for future advances thereunder. No Mortgage Loan
requires the Originator or any Affiliate of the Originator to make any capital
contribution to the Borrower after the Closing Date.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan (and, with
respect to each Credit Lease Mortgage Loan, the Credit Lease and Lease Policy)
and all other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan are each 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 their respective
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, redemption, fraudulent conveyance, 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) The related Mortgaged Property is insured by a fire and extended
perils insurance policy, issued by an insurer meeting the requirements of such
Mortgage Loan in an amount not less than the lesser of (x) the principal amount
of the related Mortgaged Loan and (y) the full replacement cost of the Mortgaged
Property, and in each case in an amount sufficient to avoid the operation of any
co-insurance provisions with respect to such Mortgaged Property; such policies
provide coverage on a full replacement costs basis with no deduction for
depreciation. Each Mortgaged Property is also covered (except if such Mortgaged
Property is operated as a mobile home park), by business interruption or rental
loss insurance in an amount equal to the gross rentals for at least a 12-month
period. Each Mortgaged Property is covered by comprehensive general liability
insurance, and the related Mortgage requires the Borrower to maintain workers'
compensation insurance as required by applicable law and, except with respect to
Mortgage Loans for which either ACLI or ACMFLP is the Responsible Party, during
any construction, renovation or alteration of the Mortgaged Property. No such
insurance policy provides that it may be canceled, endorsed, altered or reissued
to effect a change in coverage unless such insurer shall have first given the
mortgagee under such Mortgage Loan thirty days' prior written notice (or less if
so required by applicable law), and no notice has been received as of the date
hereof; all premiums required to be paid on such policy have been paid; the
related Mortgage obligates the Borrower to maintain all such insurance and, at
the Borrower's failure to do so, authorizes the mortgagee under such Mortgage
Loan to purchase such insurance at the Borrower's cost and expense and to seek
reimbursement from such Borrower. In addition, all insurance coverage required
under the related Mortgage is in full force and effect with respect to the
related Mortgaged Property, and if the related Mortgaged Property is located in
a federally designated special flood hazard area, the related Borrower is
required to maintain flood insurance in respect of all portions of the Mortgaged
Property located in such area (exclusive of any parking lot or unused or
undeveloped portion thereof.)
(xiv) One or more Environmental Reports (or an update of a previously
conducted Environmental Report) were performed with respect to the related
Mortgaged Property (in no such case more than 18 months prior to the Cut-Off
Date) by an experienced professional in the industry, and either (x) no such
Environmental Report reveals any known circumstances or conditions with respect
to the related Mortgaged Property that rendered such Mortgaged Property, at the
date of such Environmental Report, in violation of any applicable environmental
laws, or (y) if any such Environmental Report does reveal any such circumstances
or conditions with respect to the related Mortgaged Property, then either (i)
the same have been remediated in all material respects, or (ii) sufficient funds
have been escrowed for purposes of effecting such remediation or (iii) the
related Borrower or other responsible entity is currently taking such actions,
if any, with respect to such circumstances or conditions as have been
recommended by the Environmental Report or required by the applicable
governmental regulatory authority (including implementation of an operations and
maintenance agreement). The Responsible Party, having made no independent
inquiry other than reviewing the resulting report(s) and/or employing an
environmental consultant to perform the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in the related
report(s). Each Mortgage requires the related Borrower to comply, and to cause
the related Mortgaged Property to be in compliance, with all applicable federal,
state and local environmental laws and regulations.
(xv) Except as indicated on the Mortgage Loan Schedule, such Mortgage Loan
is not cross-collateralized with other Mortgage Loans in the Mortgage Pool. Such
Mortgage Loan is not cross-collateralized with a mortgage loan outside the
Mortgage Pool. No single Mortgage Loan or group of Mortgage Loans (by aggregate
Stated Principal Balance as of the Cut-Off Date) having the same Borrower (or
having Borrowers that are Affiliates) constitutes more than 5% of the total
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date.
(xvi) The terms of the Mortgage Note and Mortgage(s) for such Mortgage Loan
(and, with respect to each Credit Lease Mortgage Loan, the Credit Lease and
Lease Policy) have not been impaired, waived, altered or modified in any
material respect, except for assumptions and modifications made in accordance
with the terms of such Mortgage Note and Mortgage(s) and documentation regarding
which modification is in the Mortgage File (or, with respect to any Credit Lease
Mortgage Loan, as described in any related tenant estoppel).
(xvii) There are no delinquent taxes, ground rents, water charges, sewer
rents, or other similar outstanding charges affecting the related Mortgaged
Property that are not otherwise covered by an escrow of funds sufficient to pay
such charges.
(xviii) The interest of the Borrower in the related Mortgaged Property
consists of a fee simple interest in real property, or the lessee's interest
under a ground lease of real0 property and such other property as set forth in
the related Mortgage Loan Documents.
(xix) Such Mortgage Loan is a whole loan and not a participation interest.
(xx) The assignment of the related Mortgage to the Trustee constitutes the
legal, valid and binding assignment of such Mortgage from the relevant assignor
to the Trustee, and the assignment of the related Assignment of Leases, if any,
or of any other agreement executed in connection with such Mortgage Loan to the
Trustee constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and environmental
remediation reserves) relating to such Mortgage Loan that were required to be
delivered to the mortgagee under the terms of the related loan documents, have
been received and, to the extent of any remaining balances of such escrow
deposits, are in the possession, or under the control of the Responsible Party
or its agents (which shall include the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan the related
Mortgaged Property was 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(s), unless insured against under the related title policy.
(xxiii) No improvement that was included for the purpose of determining the
appraised value of such Mortgaged Property at the time of origination of such
Mortgage Loan lies outside the boundaries and building restriction lines of such
property to any material extent; no improvements on adjoining properties
materially encroach upon such Mortgaged Property to any material extent; and no
improvement located on or forming part of such Mortgaged Property is in material
violation of any applicable zoning laws or ordinances (except to the extent that
they may constitute legal non-conforming uses or structures, in which case the
Responsible Party is in possession of written assurances from the applicable
municipality received by itself or the originator of such Mortgage Loan to the
effect that, or it is the reasonable, good faith judgment of the Responsible
Party that, either: (A) such Mortgaged Property may be rebuilt and constitute
adequate security for the Mortgage Loan; (B) the probability of such Mortgaged
Property being damaged to the extent that it could not be rebuilt to its current
state is remote; or (C) such Mortgaged Property is adequately covered by "law or
ordinance" insurance).
(xxiv) To the extent required under applicable law as of the Closing Date
and necessary for the enforceability or collectability of the Mortgage Loan, 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.
(xxv) Such Mortgage Loan does not contain any equity participation by the
lender, provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or provide for
the negative amortization of interest, except that, in the case of an ARD Loan,
such Mortgage Loan provides that during the period commencing on the Anticipated
Repayment Date and continuing until such Mortgage Loan is paid in full, (i)
additional interest shall accrue and be added to the principal balance of such
Mortgage Loan and shall be payable only after the outstanding principal of such
Mortgage Loan is paid in full, and (ii) a portion of the cash flow generated by
such Mortgaged Property will be applied each month to the principal balance
thereof in addition to the principal portion of the related Monthly Payment.
(xxvi) No holder of such Mortgage Loan has, to the Responsible Party'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 (or other than, with respect to a Credit Lease Mortgage Loan, amounts
paid by the tenant as specifically provided under the related Credit Lease),
directly or indirectly, for the payment of any amount required by the Mortgage
Loan, except for interest accruing from the date of origination of such Mortgage
Loan or the date of disbursement of the Mortgage Loan proceeds, whichever is
later, to the date which preceded by 30 days the first Due Date under the
related Mortgage Note.
(xxvii) To the Responsible Party's knowledge, based on due diligence
customary in the industry, as of the date of origination of such Mortgage Loan,
(A) in the case of each Mortgage Loan, the related Borrower was in possession of
all material licenses, permits and authorizations required by applicable laws
for the ownership of the related Mortgaged Property, (B) in the case of each
Mortgage Loan secured by a hotel or health care facility, the related Borrower
or operator, as applicable, was in possession of all material licenses, permits
and authorizations required by applicable laws for the operation of the related
Mortgaged Property as it was then operated, and (C) all such licenses, permits
and authorizations were valid and in full force and effect.
(xxviii) The related Mortgage(s) or Mortgage Note (and, with respect to
each Credit Lease Mortgage Loan, the Credit Lease and Lease Policy), together
with applicable state law, contain customary and enforceable provisions (subject
to the exceptions set forth in sub-paragraphs (v) and (xii) above) such as to
render the rights and remedies of the holders thereof (and, with respect to each
Credit Lease, the lessor) adequate for the practical realization against the
related Mortgaged Property of the principal benefits of the security intended to
be provided thereby.
(xxix) Such Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code.
(xxx) No fraud with respect to such Mortgage Loan has taken place on the
part of the Responsible Party in connection with the origination of such
Mortgage Loan.
(xxxi) The origination, servicing and collection practices used with
respect to such Mortgage Loan have been in all material respects legal and have
met generally accepted servicing standards for similar commercial and
multifamily mortgage loans.
(xxxii) Any related Assignment of Leases (either as a separate instrument
or incorporated into the related Mortgage) creates in favor of the holder, a
valid, perfected and enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein; provided that the
enforceability of such lien is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights generally, and by the application of the rules of equity. The
Responsible Party has the full right to assign to the Trustee such Assignment of
Leases and the lien created thereby as described in the immediately preceding
sentence. No Person other than the Borrower owns any interest in any payments
due under the related leases. The related Mortgage or such Assignment of Leases
provides for the appointment of a receiver for rents or allows the mortgagee to
enter into possession to collect rent or provides for rents to be paid directly
to the mortgagee in the event of a default.
(xxxiii) If the related Mortgaged Property securing such Mortgage Loan is
encumbered by secured subordinated debt, then (A) the subordinate debt
constitutes a "cash flow" mortgage loan (that is, payments are required to be
made thereon only to the extent that certain net cash flow from the related
Mortgaged Property (calculated in accordance with the related loan documents) is
sufficient after payments on such Mortgage Loan have been made and certain
expenses have been paid) and (B) the holder of the subordinate debt has agreed
not to foreclose on the related Mortgaged Property so long as such Mortgage Loan
is outstanding and the Special Servicer on behalf of the Trust is not pursuing a
foreclosure action.
(xxxiv) The Mortgage contains a "due on sale" clause, which provides for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan if, without the prior written consent of the holder of the Mortgage, the
property subject to the Mortgage, or any interest therein, is directly or
indirectly transferred or sold, subject to those exceptions set forth in the
related Mortgage Loan which are consistent with prudent lending standards. Such
Mortgage Loan does not permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date by any lien junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof.
(xxxv) Each Mortgage and/or Mortgage Note provides that the related
Borrower shall be fully and personally liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by the mortgagee by
reason of or in connection with and only to the extent of (i) any material fraud
or intentional and material misrepresentation by the related Borrower in
connection with such Mortgage Loan, (ii) violations of applicable environmental
laws by the Borrower, (iii) misapplication or misappropriation of insurance
proceeds, condemnation proceeds or (following an event of default under such
Mortgage) rents from the Mortgaged Property, or (iv) any physical waste
resulting from Borrower actions constituting gross negligence or willful
misconduct.
(xxxvi) The related Borrower is not, to the Responsible Party's best
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
(xxxvii) If such Mortgage Loan is secured by the interest of the related
Borrower under a Ground Lease, then, such Ground Lease is in full force and
effect and, to the Responsible Party's actual knowledge, no material default
exists under such Ground Lease, nor, to the Responsible Party's actual
knowledge, is there any existing condition which, but for the passage of time or
the giving of notice, would result in a default under the Ground Lease.
(xxxviii) The Responsible Party has no actual knowledge of any pending
litigation or other legal proceedings involving the related Borrower or the
related Mortgaged Property that can reasonably be expected to materially
interfere with the security intended to be provided by the related Mortgage, the
current use of the related Mortgaged Property, or the current ability of the
Mortgaged Property to generate net operating income sufficient to service the
Mortgage Loan.
(xxxix) Except in cases where the related Mortgage Note or the related
Mortgage provide for (A) a release of a portion of the related Mortgaged
Property, which portion was not considered material for purposes of underwriting
the Mortgage Loan, (B) a release of a portion of the related Mortgaged Property
conditioned upon the satisfaction of certain underwriting and legal requirements
and/or the payment of a release price, or (C) a defeasance effected in
accordance with the Mortgage Loan documents, neither the related Mortgage Note
nor the related Mortgage requires the mortgagee to release all or any material
portion of the related Mortgaged Property from the lien of the related Mortgage
except upon payment in full of all amounts due under the related Mortgage Loan.
(xl) With respect to any Mortgage Loan that is a Defeasance Loan, the
related Mortgage Note or the Mortgage provides that (A) the Defeasance Option is
not exercisable prior to a date that is at least two years following the Closing
Date, (B) the Borrower will not be liable for any shortfalls from the Defeasance
Loan except to the extent so liable prior to defeasance, and (C) counsel must
provide an opinion that the Trustee will have a perfected security interest in
the substituted collateral prior to any other claim or interest, and further,
contains no provision that would result in a new Borrower on the Defeasance Loan
without the consent of the related mortgagee (unless such new Borrower is
acquiring the Mortgaged Property that was the initial security for the
Defeasance Loan).
(xli) If the Mortgage in respect of any Mortgage Loan is a deed of trust,
(A) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (B) except in connection with a
trustee's sale after default by the related Borrower, no fees or expenses are
payable to such trustee by the Responsible Party or any subsequent mortgagee.
(xlii) The related Mortgage Note is not secured by any collateral that is
not included in the Trust Fund.
(xliii) If such Mortgage Loan is secured by the interest of the related
Borrower as a lessee under a Ground Lease covering all or any material portion
of the related Mortgaged Property, but not by the related fee interest in such
Mortgaged Property or portion thereof:
(A) Either (1) the related ground lessor has subordinated its interest
in the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (2) the related ground lessor has granted the holder of
the Mortgage Loan the right to cure any default or breach by the ground
lessee (including time to gain possession of the Mortgaged Property). Upon
the foreclosure of such Mortgage Loan (or acceptance of a deed in lieu
thereof), the related Ground Lease is assignable to the mortgagee under
such Mortgage Loan and its assigns without the consent of the ground lessor
thereunder (or such consent, if required, cannot be unreasonably withheld);
(B) Such Ground Lease or a memorandum thereof has been or will be duly
recorded, such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related Mortgage
File;
(C) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other than
the related fee interest and Permitted Encumbrances, and such Ground Lease
is prior to any mortgage or other lien upon the related fee interest and
does not provide by its terms that it shall be subordinate to any other
lien;
(D) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan
(provided that such mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease), and such
Ground Lease, or an estoppel letter received by such mortgagee from the
lessor, further provides that no notice of termination given under such
Ground Lease is effective against the mortgagee unless a copy has been
delivered to such mortgagee in the manner described in such Ground Lease;
(E) Such Ground Lease requires the lessor to enter into a new lease
with the mortgagee under such Mortgage Loan upon termination of such Ground
Lease for any reason, including rejection of such Ground Lease in a
bankruptcy proceeding;
(F) 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 (1) to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hood and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or (2) to the payment of the
outstanding principal balance of such Mortgage Loan together with any
accrued interest thereon;
(G) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender and the lessor thereunder is not permitted to disturb the
possession, interest or quiet enjoyment or any sub-tenants of the lessee in
the relevant portion of the Mortgaged Property subject to such Ground Lease
for any reason (other than default under the Ground Lease), or in any
manner, which would materially and adversely affect the security provided
by the related Mortgage;
(H) Such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, at the Borrower's option, and will be enforceable, by the
mortgagee if it takes possession of such leasehold interest) that extends
not less than 10 years beyond the stated maturity of the related Mortgage
Loan; and
(I) The lessor under such Ground Lease has agreed in such Ground Lease
(or in another writing included in the related Mortgage File) that such
Ground Lease may not be amended, modified, canceled or terminated in a
material manner without the prior written consent of the mortgagee.
(xliv) Neither the related Mortgage Note nor the related Mortgage contain
provisions limiting the right or ability of the Responsible Party to assign,
transfer and convey such documents.
(xlv) In addition, with respect to each Credit Lease Mortgage Loan:
(A) Each Lease Policy is assignable by the Responsible Party and will
inure to the benefit of the Trustee and its successors and assigns without
the consent of or notice to the issuer thereof. Any subleases entered into
by the Tenant will be subject and subordinate to the Credit Lease and will
not relieve the Tenant of its obligations under the Credit Lease.
(B) To the best of the Responsible Party's knowledge (i) each Credit
Lease is in full force and effect, and no default by the Borrower or the
Tenant has occurred under such Credit Lease, and (ii) there is no existing
condition which, but for the passage of time or the giving of notice, or
both, would result in a default under the terms of such Credit Lease.
(C) The payments of Basic Rent under the Credit Lease are equal to or
greater than the payments due under the Mortgage Loan documents (except if
the Credit Lease Mortgage Loan provides for a balloon payment, in which
case a Lease Policy is in effect), and are payable without notice or
demand, and without setoff, counterclaim, recoupment, abatement, reduction
or defense.
(D) The obligations of each tenant under a Credit Lease (a "Tenant"),
including, but not limited to, the obligation of the Tenant to pay fixed
and additional rent, are not affected by reason of any prohibition,
limitation, interruption, cessation, restriction, prevention or
interference of the Tenant's use, occupancy or enjoyment of the Mortgaged
Property, other than by reason of damage to or destruction of any portion
of the Mortgaged Property, any taking of the Mortgaged Property or any part
thereof by condemnation or otherwise to the extent that such Mortgaged
Property is covered by an insurance policy issued by Chubb Custom Insurance
which, by its terms, would cover the payment of any such obligations of the
Tenant under such circumstances.
(E) The related Borrower does not have any material monetary
obligations under the Credit Lease.
(F) Every obligation associated with managing, owning, developing and
operating the Mortgaged Property (other than structural repairs),
including, but not limited to, the costs associated with utilities, taxes,
insurance, capital improvements and maintenance is an obligation of the
Tenant.
(G) The related Borrower does not have any non-monetary obligations
under the Credit Lease, the breach of which would result in the abatement
of rent, a right of setoff or termination of the Credit Lease.
(H) The related Tenant cannot terminate the Credit Lease for any
reason (except for a default by the related Borrower under the Credit
Lease) prior to the payment in full of: (A) the outstanding principal
balance of the Credit Lease Mortgage Loan; (B) all accrued and unpaid
interest on the Credit Lease Mortgage Loan; and (C) any other sums due and
payable under the Credit Lease Mortgage Loan, as of the termination date,
which date is a rent payment date; provided, however, that the related
Tenant can terminate the Credit Lease by reason of damage to or destruction
of any portion of the Mortgaged Property, any taking of the Mortgaged
Property or any part thereof by condemnation or otherwise to the extent
that such Mortgaged Property is covered by an insurance policy issued by
Chubb Custom Insurance which, by its terms, would cover the payment of any
of the Tenant's remaining obligations, including the payment of rent, under
such circumstances.
(I) In the event the related Tenant assigns or sublets the Mortgaged
Property, the Tenant remains primarily obligated under the Credit Lease.
(J) The Tenant has agreed to indemnify the related Borrower from any
claims of any nature relating to the Credit Lease and the Mortgaged
Property arising from any act done or omission or negligence by the Tenant,
except to the extent that such claims arise from the negligence or tortious
act or omission of the Borrower.
(K) The Tenant has agreed to indemnify the related Borrower from any
claims of any nature arising as a result of any environmental problem
affecting the Mortgaged Property caused by Tenant.
(L) Any obligation or liability imposed by any easement or reciprocal
easement agreement is an obligation of the Tenant, and is without recourse
or liability to the related Borrower.
(M) The Tenant is obligated to make payments directly to the
Mortgagee, which payments are made into a lockbox account over which the
related Borrower has no withdrawal or transfer rights.
(N) The terms of the related Mortgage Loan documents prohibit material
modifications of the terms of the Credit Lease without the consent of the
related mortgagee.
(O) The mortgagee is entitled to notice of any event of default from
the Tenant under the Credit Lease which would give the Tenant the right to
cancel or terminate such Credit Lease and the Responsible Party shall have
the opportunity to cure any such default.
(P) Each Credit Lease that is guaranteed is guaranteed by a guarantor
(a "Guarantor") pursuant to a guaranty (a "Guaranty"). Each Guaranty
represents by its terms the unconditional obligation of the Guarantor,
without any right of offset, counterclaim, or defense, and is a guarantee
of payment, not merely collection. The rejection of the Credit Lease in a
bankruptcy or insolvency of the Tenant shall not affect the Guarantor's
obligations under the Guaranty and the Guarantor shall be obligated to pay
the Tenant's obligations, subject to limitation as to amount in the event
of the Guarantor's bankruptcy, under the Credit Lease notwithstanding such
rejection. The Guaranty is binding on the Guarantor, its successors and
assigns and may not be amended or released without the mortgagee's consent.
(Q) The Credit Lease Assignment creates a valid first priority
security interest in favor of the Seller in rights including the right to
Basic Rent and, to the extent payable under each Credit Lease, additional
rent due under the related Credit Lease, subject only to license granted to
the Borrower to exercise certain rights and to perform certain obligations
of the lessor under the Credit Lease, including the right to operate the
related Mortgaged Property, and no Person other than the Borrower owns any
interest in any payments due under such Credit Lease.
(R) The Tenant has delivered an estoppel letter with respect to the
Credit Lease, verifying, among other things, the rents and terms of the
Credit Lease and acknowledging that no rent has been paid in advance.
(S) The Mortgaged Property is not subject to any lease other than the
Credit Lease, no person has any possessory interest in, or right to occupy
the property except under and pursuant to the Credit Lease and the Tenant
under the Credit Lease is in occupancy of the Mortgaged Property and the
Mortgaged Property is not under construction or substantial rehabilitation.
(T) Each Lease Policy, if any, (i) designates as loss payee, the
Trustee and all claims proceeds are payable to the loss payee; (ii) has
been paid in full as of the effective date and the Lease Policy cannot be
terminated prior to its termination date; (iii) has an effective date prior
to the Closing Date; (iv) has a termination date of the date upon which the
outstanding principal balance of the balance of the related Mortgage Loan
is reduced to zero; (v) requires the provider to pay the loss amount up to
the insured amount to the loss payee upon notification of a claim which is
equal to or greater than the outstanding principal balance of the related
Mortgage Loan at the time the claim is made; and (vi) cannot be amended
without prior written consent of the Trustee.
(xlvi) There is no material default, breach, violation or event of
acceleration under the Mortgage Note, Mortgage or Assignment of Leases and to
the actual knowledge of the Responsible Party, no event which, with the passage
of time or the giving of notice, or both, would constitute a material default or
event of acceleration, nor has the Responsible Party waived any such default; no
foreclosure action or other form of enforcement is or has been threatened or
commenced with respect to any Mortgage.
(xlvii) The Responsible Party has inspected or caused to be inspected each
related Mortgaged Property within the last 18 months.
(xlviii) Each Mortgaged Property constitutes one or more complete separate
tax lots (or will constitute separate tax lots when the next tax maps are
issued).
(xlix) With respect to any Mortgage Loan which is secured by a senior
housing, nursing home, or other healthcare-related facility ("Healthcare
Facility") to the best of the Responsible Party's knowledge and:
(A) Based upon representations by the Borrower and each Healthcare
Facility operator or manager (each a "Healthcare Operator"), each Borrower
and each Healthcare Facility complies with all applicable federal, state,
commonwealth and local laws, regulations, quality and safety standards,
accreditation standards and requirements of the applicable state or
commonwealth Department of Health or any similar regulatory agency (each a
"DOH") and all other federal, state, commonwealth or local governmental
authorities having jurisdiction over such Healthcare Facility.
(B) Based on representations by the Borrower and each Healthcare
Operator and, where applicable, certificates of government officials, all
governmental licenses, permits, regulatory agreements or other approvals or
agreements necessary for the use and operation of each Healthcare Facility
as intended are held by the applicable Borrower or Healthcare Operator and
are in full force and effect, including, without limitation, a valid
certificate of need ("CON") or similar certificate, license, or approval
issued by the DOH for the requisite number of beds, and approved provider
status in any approved provider payment program (collectively, the
"Licenses").
(C) Based upon representations and covenants in the related Mortgage
and, where applicable, certificates of government officials, the Licenses,
including, without limitation, the CON:
(1) May not be, without the consent of the mortgagee, and have
not been, transferred to any location other than the Healthcare
Facility;
(2) Have not been pledged as collateral security for any loan or
indebtedness other than the Mortgage; and
(3) Are held free from restrictions or known conflicts which
would materially impair the use or operation of the Healthcare
Facility as intended, and are not provisional, probationary or
restricted in any way.
(D) So long as the Mortgage remains outstanding, no Borrower or
Healthcare Operator is permitted pursuant to the terms of the Mortgage
without the consent of the holder of the Mortgage to:
(1) rescind, withdraw, revoke, amend, modify, supplement, or
otherwise alter the nature, tenor or scope of the Licenses for any
Healthcare Facility (other than the addition of services or other
matters expanding or improving the scope of such License);
(2) amend or otherwise change any Healthcare Facility's
authorized bed capacity and/or the number of beds approved by the DOH;
or
(3) replace or transfer all or any part of any Healthcare
Facility's beds to another site or location.
(E) Based upon representations and covenants in the related Mortgage,
each Healthcare Facility is in compliance with all requirements for
participation in Medicare and Medicaid, including, without limitation, the
Medicare and Medicaid Patient Protection Act of 1987; each Healthcare
Facility is in conformance in all material respects with all insurance,
reimbursement and cost reporting requirements, and, if required, has a
current provider agreement which is in full force and effect under Medicare
and/or Medicaid.
(F) Based on representations by the Borrower, there is no threatened
or pending revocation, suspension, termination, probation, restriction,
limitation, or nonrenewal affecting any Borrower, or Healthcare Facility or
any participation or provider agreement with any third-party payor,
including Medicare, Medicaid, Blue Cross and/or Blue Shield, and any other
private commercial insurance managed care and employee assistance program
(such programs, the "Third-Party Payors' Programs") to which any Borrower
presently is subject.
(G) Based on representations by each Borrower in the related Mortgage,
no Borrower, Healthcare Operator or Healthcare Facility is currently the
subject of any proceeding by any governmental agency, and no notice of any
violation has been received from a governmental agency that would, directly
or indirectly, or with the passage of time:
(1) Have a material adverse impact on any Borrower's ability to
accept and/or retain patients or result in the imposition of a fine, a
sanction, a lower rate certification or a lower reimbursement rate for
services rendered to eligible patients;
(2) Modify, limit or annul or result in the transfer, suspension,
revocation or imposition of probationary use of any Borrower's
Licenses; or
(3) Affect any Borrower's continued participation in the Medicaid
or Medicare programs or any other of the Third-Party Payors' Programs,
or any successor programs thereto, at current rate certifications.
(H) Based upon representations and covenants in the Mortgage and,
where available, certificates of government officials, each Healthcare
Facility and the use thereof complies in all material respects with all
applicable local, state and federal building codes, fire codes, health
care, nursing facility and other similar regulatory requirements (the
"Physical Plant Standards") and no material waivers of Physical Plant
Standards exist at any of the Healthcare Facilities.
(I) Based upon representations by each Borrower and/or in the related
Mortgage and, where available, certificates of government officials, no
Healthcare Facility has received a "Substandard Quality of Care" (or
equivalent) violation, and no statement of charges or material deficiencies
has been made or penalty enforcement action has been undertaken against any
Healthcare Facility, Healthcare Operator or Borrower, or against any
officer, director or stockholder of any Healthcare Operator or Borrower by
any governmental agency that is currently pending or, to the Responsible
Party's knowledge received during the last three calendar years, and there
have been no violations over the past three years which have materially
threatened any Healthcare Facility's, any Healthcare Operator's or any
Borrower's certification for participation in Medicare or Medicaid or the
other Third-Party Payors' Programs.
(J) Based on representations by each Borrower in the related Mortgage,
there are no current, pending or outstanding Medicaid, Medicare or
Third-Party Payors' Programs reimbursement audits or appeals pending at any
of the Healthcare Facilities concerning allegations of fraud or that might
have a material adverse effect on the operations of the Healthcare
Facility.
(K) Based on representations by each Borrower in the related Mortgage,
there are no current or pending Medicaid, Medicare or Third-Party Payors'
Programs recoupment efforts at any of the Healthcare Facilities that might
have a material adverse effect on the operations of the Healthcare
Facility.
(L) Based on representations by each Borrower in the related Mortgage,
no Borrower has pledged its receivables as collateral security for any loan
or indebtedness other than the related Mortgage which is not subject to a
subordination agreement in connection with the Mortgage Loan.
(M) Based on representations by each Borrower in the related Mortgage,
there are no patient or resident care agreements with patients or residents
or with any other persons which deviate in any material adverse respect
from the standard form customarily used at the Healthcare Facilities.
(N) If applicable, the Borrower has represented in the related
Mortgage that all patient or resident records at each Healthcare Facility,
including patient or resident trust fund accounts, if any, are true and
correct in all material respects.
(O) If applicable, the Borrower has represented in the related
Mortgage that any existing agreement relating to the management or
operation of any Healthcare Facility with respect to any Healthcare
Facility is in full force and effect and is not in default by any party
thereto.
(P) The terms of each Mortgage require that the Healthcare Facility,
Healthcare Operator or Borrower shall take no action which will result in a
reduction, suspension, recoupment or elimination of reimbursement for
services from any Medicare, Medicaid or Third Party Payors' Programs.
(l) Each Mortgage Loan was originated by the Originator shown on the
Mortgage Loan Schedule or by an Affiliate of such Originator.
(li) The related Borrower for each Mortgage Loan is an entity organized
under the laws of a state or territory of the United States.
(lii) Each Mortgaged Property is located on or adjacent to a dedicated road
or street, or has an irrevocable easement permitting ingress and egress. Each
Mortgaged Property is served by public or private electric utility service and
by public or private water and sewer service or non-public wells and septic
systems.
<PAGE>
ANNEX C
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Mortgage Loan Schedule - Mortgage Loans Over 5% Concentrations
<TABLE>
<CAPTION>
Current
-------
Current Monthly Interest Revised Rate Excess Rate
--------------- -------- ------------ -----------
Loan Number Borrower Name Payment Rate (ARD Loans) (ARD Loans) Interest Accrual Method Net Rate
- ----------- ------------- ------- ---- ----------- ----------- ----------------------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
ACS Americold Real Estate, L.P. 1,048,596.30 6.8940 8.8940 (2) 2.0000 Actual Days / 360 Year-Days 6.7665
AIM-1 VMS National Properties 879,519.87 8.5000 - - Actual Days / 360 Year-Days 8.3725
09-1001006 EPT DownREIT II, Inc. 689,147.83 6.7720 8.7720 (1) 2.0000 Actual Days / 360 Year-Days 6.6445
</TABLE>
<TABLE>
<CAPTION>
Original Remaining
-------- ---------
Original Remaining Maturity Amortization Amortization Cut-off Date
-------- --------- -------- ------------ ------------ ------------
Loan Number Borrower Name Original Balance Loan Term Loan Term Date Term Term Balance
- ----------- ------------- ---------------- --------- --------- ---- ---- ---- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
ACS Americold Real Estate, L.P. 148,500,000.00 120 115 05/11/23 300 295 147,597,677.40
AIM-1 VMS National Properties 110,000,000.00 120 111 01/01/08 320 311 109,149,602.22
09-1001006 EPT DownREIT II, Inc. 105,000,000.00 120 117 07/11/28 360 357 104,748,391.85
</TABLE>
<TABLE>
<CAPTION>
Number of Anticipated
--------- -----------
Cut-off Servicing Properties Repayment
------- --------- ---------- ---------
Loan Number Borrower Name Date LTV Fee Securing Loan Date Seller Loan Pool
- ----------- ------------- -------- --- ------------- ---- ------ ---------
<S> <C> <C> <C> <C> <C> <C> <C>
ACS Americold Real Estate, L.P. 57 0.1275 29 5/11/08 Large Loan Group 1
AIM-1 VMS National Properties 61 0.1275 15 VM Groups 1 and 2
09-1001006 EPT DownREIT II, Inc. 62 0.1275 8 7/11/08 Large Loan Group 1
</TABLE>
Footnotes:
(1) For the following loans, the Revised Rate shall be the greater of (a) the
initial interest rate plus 2% or (b) the Treasury rate plus 2%. For the
purposes of this schedule, we have chosen to reflect the initial interest
rate plus 2%.
(2) For the following loans, the Revised Rate shall be the lesser of (a)
initial interest rate plus 2% or (b) the maximum rate permitted by law. For
the purposes of this schedule, we have chosen to reflect the initial
interest rate plus 2%.
<PAGE>
ANNEX D
SCHEDULE OF EXCEPTIONS
TO REPRESENTATIONS & WARRANTIES
1. Representation and Warranty (v)
a. Amresco - Redstone Apartments: (responsible party, ACMFLP)
b. Amresco - Exchange Street Parking: (responsible party, ACLI)
2. Representation and Warranty (xiv)
a. Amresco - Concord Portfolio (responsible party, ACMFLP)
3. Representation and Warranty (xv)
a. AMERICOLD POOL LOAN: Cross-collateralized outside pool.
b. Four Winds of Katonah and Four Winds of Saratoga: Cross-collateralized
with one another.
c. Cedar Shores Apartments FLA and Treehouse Apartments FLA: Cross-
collateralized with one another.
d. Bear Creek Specialty Center, Southside Village Shopping Center, Murphy
Road Business Center, and Plaza del Oro Shopping Center:
Cross-collateralized with one another.
e. Piggly Wiggly (Andrews, SC) and Piggly Wiggly (Savannah, GA): Cross-
collateralized with one another.
4. Representation and Warranty (xix):
a. Laurel Executive: John B. Levy & Company, Inc. is paid a monthly
broker's strip on the following loan.
b. Dorsey Park: John B. Levy & Company, Inc. is paid a monthly broker's
strip on the following loan.
<PAGE>
5. Representation and Warranty (xxiii)
a. Outside the boundaries
i. 100 & 105 Rowayton: One of the eight boat slips constituting a
portion of the collateral is within the riparian rights of the
owner of the northerly abutting parcel, and is used by the
borrower pursuant to a terminable letter agreement allowing such
use. No insurance available.
ii. Best Western Continental Inn (San Antonio): Parking spaces
located over the property boundary; endorsement/affirmative
coverage not available; parking spaces not necessary to meet the
zoning requirements.
b. In material violation
i. Fallbrook Mall Loan: There was a post closing condition to obtain
a new CO for a portion of the old Sears space that was converted
into a health club and restaurant (both have licenses). There was
an exception in the Officer's Certificate with respect to the CO
for that particular deal. A $2,000,000 escrow at closing was
required in connection with a condition under the Kmart lease,
and a condition of the release of those funds included the
delivery of the new COs.
ii. South Shore Nursing Home: Parking does not conform with current
zoning and lease requirements.
iii. Arc Portfolio: Nonconforming use as to Meadowbrook MHC and
Loveland MHC.
iv. Wesbury Park Apartments: Parking is 27 spaces short of the
current zoning requirement and buildings are too close together
under current requirements.
v. Sierra Trails Apartments: Three handicapped parking spaces
required to be added under ADA. Affirmative coverage obtained for
minor encroachments.
vi. The Mason Apartments: Parking does not comply with zoning.
vii. McKinney Avenue Apartments: Parking does not comply with zoning.
viii. Southlake Oaks Shopping Center: Property is zoned "E"--Commercial
District. Apartments are "legal non-conforming use". If more than
<PAGE>
75% of the property is destroyed, apartments can be rebuilt if
they comply with new Apartment Development Regulations.
ix. Ridgecrest: Parking does not comply with zoning (insufficient
number of spaces); however, borrower to use best efforts to get
parking variance.
x. Angelton: Parking does not comply with zoning (insufficient
number of spaces); however, borrower to use best efforts to get
parking.
6. Representation and Warranty (xxvii)
a. (A)
i. EPT Pool Loan: AMC Promenade 16 and AMC West Olive 16 have
temporary Certificates of Occupancy (each a "CO"). A permanent CO
for AMC Promenade 16 can only be obtained once the theater
building is fully occupied, which condition cannot be satisfied
as the food court retail spaces are not fully occupied at all
times. A permanent CO for West Olive 16 can be obtained upon
completion of certain minor landscaping items.
ii. Alturas Plaza: A portion of basement space has no C/O.
iii. Ridgecrest, Long Point Shopping Center: Borrower is to obtain
copies of CO's for the property, or use reasonable efforts to do
so.
iv. Inwood Mansions, LLC: Licenses not obtained.
v. Super 8 - Brunswick: Licenses not obtained.
vi. Fallbrook Mall Loan: There was a post closing condition to obtain
a new CO for a portion of the old Sears space that was converted
into a health club and restaurant (both have licenses). There was
an exception in the Officer's Certificate with respect to the CO
for that particular deal. A $2,000,000 escrow at closing was
required in connection with a condition under the Kmart lease,
and a condition of the release of those funds included the
delivery of the new COs.
b. (B)
i. Super 8 - Brunswick: This is a hotel for which licenses were not
obtained.
7. Representation and Warranty (xxxii)
a. AMERICOLD POOL LOAN: The Americold Pool Loan is subject to a Co-Lender
Agreement whereby payments from the Borrower are applied pari passu to
the Americold Pool Note A which was originated contemporaneously with
the Americold Pool Note B but which is not included in the Mortgage
Pool.
8. Representation and Warranty (xxxiii)
<PAGE>
a. AMRESCO - Kentwood Marketplace (responsible party, ACLI)
9. Representation and Warranty (xxxviii)
a. AMRESCO - Airport Plaza: Litigation pending. (responsible party,
ACMFLP)
10. Representation and Warranty (xxxix)
a. AIMCO Multifamily Pool Loan: Upon prepayment in full of an AIMCO
Multifamily Pool Property, mortgagee will release the AIMCO
Multifamily Pool Property from the lien of the mortgage without a
release price.
11. Representation and Warranty (xliii)
a. (A)
i. AMRESCO - 761 7th Avenue: (responsible party, ACLI)
ii. Cedar Shores Apartment, FL: Part as to dock/deck only. State of
Florida will not make agreements (notice to ground lessor and
consent was required as post closing item). Lease is limited
term, it is an enhancement to property but not essential. State
of Florida will not grant long term leases. Local counsel advised
as to custom in Florida. Leasehold mortgage insurance was not
obtained.
iii. Best Western - Lancaster, Ohio: Includes a ground lease on a
parking lot. The parking area is a benefit to the property, but
zoning does not require the spaces. The lease can be terminated,
and the Fee Owner did not provide an estoppel. The ground lease,
by its terms, may not be mortgaged, and in the event of
foreclosure or otherwise, the parking lot parcel may be excluded
as part of the property.
b. (D)
i. AMERICOLD POOL LOAN: The ground leases and related estoppel
certificates for the properties do not specifically provide that
a notice of termination is not effective against the mortgagee
unless a copy of the notice has been delivered to the mortgagee.
The properties are located in:
Denver, Colorado,
Watsonville, California
Burley, Idaho
ii. AMRESCO - 761 7th Avenue: (responsible party, ACLI)
c. (E)
i. AMERICOLD POOL LOAN: The ground leases for the Americold Pool
Properties do not expressly require the ground lessor to enter
into a new lease with the mortgagee upon rejection of the lease
in a bankruptcy proceeding. The properties are located in:
<PAGE>
Burley, Idaho
Denver, Colorado
Watsonville, California
ii. EPT Pool Loan: Because the EPT Ground Lease with respect to AMC
Lennox 24 (the "EPT Lennox Ground Lease") provided for a new
lease upon termination of the EPT Lennox Ground Lease without
expressly including the rejection of the EPT Lennox Ground Lease
in bankruptcy, the related ground lessor confirmed and clarified,
in the related ground lessor estoppel certificate, the obligation
of the ground lessor to enter into a new ground lease upon such
rejection of the EPT Lennox Ground Lease.
iii. AMRESCO - 761 7th Avenue (responsible party, ACLI)
d. (F)
i. AMERICOLD POOL LOAN: The ground lease for the property located in
Watsonville, California is silent as to subletting.
ii. AMRESCO - 761 7th Avenue (responsible party, ACLI)
iii. AMRESCO - Fairfax School Office Building (responsible party,
ACLI)
e. (G)
i. EPT Pool Loan: The Ground Lease with respect to AMC Mission
Valley 20 (the "EPT Mission Valley Ground Lease") requires the
consent of the related ground lessor in connection with any
subletting, which consent is not to be unreasonably withheld. No
such consent is required with respect to a sublease to an
affiliate of the ground lessee thereunder, provided that such
ground lessee remains liable under the EPT Mission Valley Ground
Lease and maintains its affiliation with the related sublessee.
ii. AMRESCO - 761 7th Avenue: (responsible party, ACLI)
iii. AMRESCO - Fairfax School Office Building: (responsible party,
ACLI)
iv. AMRESCO - Marriott at Market Center (responsible party, ACLI)
f. (H)
i. AMERICOLD POOL LOAN: The Denver, Colorado Ground
<PAGE>
Lease expires, with no further renewals, in 2012, which is prior
to the Americold Pool Loan Maturity Date.
ii. AMRESCO - Allen Management #30886 (responsible party, ACLI)
g. (I)
i. AMRESCO - 761 7th Avenue: (responsible party, ACLI)
12. Representation and Warranty (xlv)
a. (C)
i. Right Aid Woodsville: Rite Aid Woodsville's initial lease term
expires two months prior to the maturity date on this loan.
However, this is mitigated by: (a) loan balance at end of lease
term will be $24,446, current land value is $405,000, and (b)
DSCR is 1.13.
ii. Eckerd: Except in the case of a Landlord Default, Tenant has the
right to cure and offset rend if Landlord does not reimburse in
90 days. Condemnation and casualty covered by insurance and
Landlord Default opportunity is limited and offset covered by
personal liability of Borrower principals.
b. (E)
i. Eckerd: Except in connection with liability for latent structural
defects discovered within one year and certain payment
obligations under drainage easement and REA agreement.
c. (F)
i. CVS Binghamton: Landlord is responsible structural repairs.
Maintain common areas.
ii. CVS Johnson City: Landlord is responsible structural repairs.
Maintain common areas.
iii. Rite Aid Ogdensville: Landlord is responsible structural repairs.
Maintain common areas.
iv. Rite Aid Woodsville: Landlord is responsible structural repairs.
Maintain common areas.
<PAGE>
v. Rite Aid Pulaski:Landlord is responsible structural repairs.
Maintain common areas.
vi. Eckerd: Except in connection with liability for latent structural
defects discovered within one year and certain payment
obligations under drainage easement and REA agreement.
d. (G)
i. Eckerd: Except: (a) warranty of defects during year 1 and related
repairs, (b) compliance with all laws as to preexisting property,
(c) construction failures and negligence, (d) compliance with
easement agreements as defined drainage easement and access
easement (need to determine the costs of obligations thereunder),
(e) Landlord must provide access to public streets in number and
locations, (f) provide 77 parking spaces (currently satisfied),
(g) issues regarding road construction and access including
requirement certain easements and restrictions in place, (h)
Landlord must provide separate meters for water and electricity,
(i) Landlord must keep Property free of Mechanics Liens as to
work required of Landlord, and (j) Landlord has certain
obligations under REA and Drainage Easement Agreement.
ii. CVS Binghamton: The lease grants full recourse to the principal
of the Borrower as well as confirmation in the estoppel
concerning the Landlord's compliance.
iii. CVS Johnson City: The lease grants full recourse to the principal
of the Borrower as well as confirmation in the estoppel
concerning the Landlord's compliance.
e. (H)
i. Rite Aid Woodsville: Rite Aid Woodville's initial lease term
expires two months prior to the maturity date on this loan.
f. (L)
i. CVS Binghamton: Landlord required to maintain certain parking
ratios and have full recourse to the principal of the Borrower as
well as confirmation in the estoppel concerning the Landlord's
compliance.
ii. CVS Johnson City:Landlord required to maintain certain parking
ratios and have full recourse to the principal of the Borrower as
well as confirmation in the estoppel concerning the Landlord's
compliance.
<PAGE>
13. Representation and Warranty (xlvi)
a. AMRESCO - Concord Portfolio (responsible party, ACLI)
14. Representation and Warranty (xlviii)
a. Comfort Suites (Houston, TX): Not separate tax lots.
b. Inwood Mansions (NY): Not separate tax lots.
c. Lake Natoma Inn: Not separate tax lots.
d. CDI Center: Not separate tax lots.
e. Best Western--Rosewell: Not separate tax lots.
f. Plaza at River Oaks: Not separate tax lots.
g. Spring Park Plaza Shopping: Not separate tax lots.
h. Westwood Apartments: Not separate tax lots.
i. Southlake Oaks Shopping: Not separate tax lots.
j. CVS Drug Store Binghamton:Not separate tax lots.
15. Representation and Warranty (xlix)
a. (A)
i. Beverly Hills Rehabilitation Center
b. (D)
i. Karrington Properties: Borrower only covenants to comply with
license, no covenant not to change bed capacity, no covenant
regarding transfer of beds.
c. (E)
i. Beverly Hills Rehabilitation Center
d. (F)
i. Beverly Hills Rehabilitation Center
<PAGE>
e. (G)
i. Beverly Hills Rehabilitation Center
f. (I)
i. Beverly Hills Rehabilitation Center
g. (K)
i. South Shore:
ii. Beverly Hills Rehabilitation Center
h. (L)
i. Four Winds of Katonah: Borrower has executed subordinated note in
the principal amount of $2,200,000 to the Bank of New York
secured by pledge of Accounts Receivable.
ii. Four Winds of Saratoga: Borrower has executed subordinated note
in the principal amount of $2,200,000 to the Bank of New York
secured by pledge of Accounts Receivable.
i. (N)
i. Karrington Properties: No representations to record.
16. Representation and Warranty (lii)
i. Access to 2 Mortgaged Properties securing the Americold Pool Loan
located in Bettendorf, Iowa and Plover, Wisconsin is dependent,
at least in part, on certain easements and/or licenses which have
not been recorded.
