SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: January 20, 1999
(Date of earliest event reported)
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
(Exact name of registrant as specified in its charter)
Delaware 333-65921 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
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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 1999-C1 (the "Certificates"). On
January 20, 1999, GS Mortgage Securities Corporation II (the "Company") caused
the issuance, pursuant to a Pooling and Servicing Agreement, dated as of January
10, 1999 (the "Pooling and Servicing Agreement"), by and among the Company, as
seller, Goldman Sachs Mortgage Company, as responsible party, AMRESCO Capital
Limited, Inc., as responsible party, Daiwa Finance Corp., as responsible party,
Daiwa Real Estate Finance Corp., as responsible party, GMAC Commercial Mortgage
Corporation, as master servicer, Lennar Partners, Inc. as special servicer,
LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as fiscal agent, of
the Certificates, issued in fourteen classes. The Class A-1, Class A-2, Class X,
Class B, Class C, Class D and Class E Certificates (the "Publicly Offered
Certificates"), with an aggregate principal balance as of January 10, 1999 (the
"Cut-Off Date") of $779,262,000, were sold to Goldman, Sachs & Co. ("GS&Co.")
and Norwest Investment Services, Inc. pursuant to an Underwriting Agreement,
dated January 8, 1999, by and between GS&Co. and Norwest Investment Services,
Inc., as underwriters, 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
-----------------------------------
Name: Jay Strauss
Title: Secretary
Date: February 1, 1999
<PAGE>
Exhibit Index
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,
AMRESCO CAPITAL LIMITED, INC.,
Responsible Party,
DAIWA FINANCE CORP.,
Responsible Party,
DAIWA REAL ESTATE FINANCE CORP.,
Responsible Party,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer,
LENNAR PARTNERS, INC.,
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 January 10, 1999
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
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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
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SECTION 2.01 Conveyance of Mortgage Loans.......................................................................
SECTION 2.02 Acceptance by Custodian and the Trustee............................................................
SECTION 2.03 Representations and Warranties of the Seller and the Responsible Parties...........................
SECTION 2.04 Representations, Warranties and Covenants of the Master Servicer...................................
SECTION 2.05 Representations, Warranties and Covenants of the Special Servicer..................................
SECTION 2.06 Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests...................
SECTION 2.07 Miscellaneous REMIC and Grantor Trust Provisions...................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
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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.................................
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..............................................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
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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 Deductible Reserve Account.........................................................................
ARTICLE V
THE CERTIFICATES
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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
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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......................................
SECTION 6.07 Year 2000 Compliance...............................................................................
ARTICLE VII
DEFAULT
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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
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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 or 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
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SECTION 9.01 Termination; Optional Mortgage Loan Purchase.......................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
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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.............................................................
SECTION 10.10 Request by Certificateholders.....................................................................
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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 X Certificate
Exhibit A-4 Form of Class B Certificate
Exhibit A-5 Form of Class C Certificate
Exhibit A-6 Form of Class D Certificate
Exhibit A-7 Form of Class E Certificate
Exhibit A-8 Form of Class F Certificate
Exhibit A-9 Form of Class G Certificate
Exhibit A-10 Form of Class H Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class Q Certificate
Exhibit A-13 Form of Class LR Certificate
Exhibit A-14 Form of Class R 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 Watch List
Exhibit Q-7 Form of Operating Statement Analysis
Exhibit Q-8 Form of NOI Adjustment Worksheet
Exhibit Q-9 CSSA Standard Reporting Package 1
Exhibit Q-10 CSSA Standard Reporting Package 2
Exhibit Q-11 CSSA Standard Reporting Package 3
Annex A Schedule of Mortgage Loans Covered by the
Environmental Insurance Policy as of the Closing Date
Annex B Representations and Warranties with Respect to Each
Mortgage Loan
Annex C [Reserved]
Annex D Schedule of Exceptions to Representations
& Warranties
<PAGE>
Pooling and Servicing Agreement, dated as of January 10, 1999, among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as Responsible Party, AMRESCO Capital Limited, Inc., as Responsible Party, Daiwa
Finance Corp., as Responsible Party, Daiwa Real Estate Finance Corp., as
Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer,
Lennar Partners, Inc., as 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 Excess Interest Distribution Account and the Deductible
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 X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J 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 ten classes of uncertificated Lower-Tier Regular
Interests issued under this Agreement (the Class LA-1, Class LA-2, Class LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and Class LJ
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 Excess
Interest Distribution Account and the Deductible Reserve Account 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 and the Class Q
Distribution Account, that the Class A-2, Class B, Class C, Class D, Class E,
Class F and Class G 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 DFC and DREFC will be treated as
the beneficial owners of the Deductible Reserve Account.
The following table sets forth the designation and aggregate initial
Certificate Principal Amount (or, with respect to the Class X Certificates, the
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
CERTIFICATES NOTIONAL AMOUNT
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Class A-1 $165,650,000
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Class A-2 $455,533,000
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Class X (1) $890,585,728
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Class B $ 42,303,000
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Class C $ 44,529,000
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Class D $ 57,888,000
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Class E $ 13,359,000
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Class F $ 46,756,000
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Class G $ 28,944,000
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Class H $ 6,679,000
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Class J $ 28,944,728
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(1) The initial Notional Amount of the Class X Certificates is equal to the
aggregate of the initial Certificate Principal Amounts of the Class LA-1,
Class LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, and Class LJ Interests, which correspond to the Certificate
Principal Amounts of the Class A-1, Class A-2, Class B, Class C
Certificates, Class D, Class E, Class F, Class G, Class H and Class J
Certificates, respectively.
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 $890,585,729.00.
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.
"ACLI Loan Sale Agreement": The Loan Sale Agreement, dated as of the
Cut-Off Date, by and between ACLI and the Seller.
"Accountant's Statement": as defined in Section 3.15.
"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 to the extent not covered by Default Interest and late
payment fees, (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
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 neither the Master Servicer nor any other party will earn interest, at the
Advance Rate or otherwise, on any P&I Advance made with respect to the Mortgage
Loans identified as Loan Numbers 400030957 and R0492 on the Mortgage Loan
Schedule from the date of such Advance to and including the date of the end of
the applicable grace period for the related Mortgage Loan; provided further,
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.
"Allocated Loan Amount": With respect to each Mortgaged Property as of any
date of determination, the portion of the principal balance of the related
Mortgage Loan then allocated to such Mortgaged Property in accordance with the
terms of the applicable Mortgage or Loan Agreement and subject to the terms of
this 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.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and the Accountant's Statement.
"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": An appraisal prepared by an Independent MAI appraiser with at
least five years experience in properties of like kind and in the same area,
prepared in accordance with 12 C.F.R. 225.64.
"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 (y) in the case of any Mortgage Loan with an
outstanding principal balance equal to or in excess of $1,000,000, by one or
more Appraisals obtained by the Special Servicer (the cost of which shall be
advanced by the Master Servicer as a Property Advance) or (x) in the case of any
Mortgage Loan with an outstanding principal balance less than $1,000,000, by an
internal valuation performed by the Special Servicer 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, and/or for which funds have not been escrowed). If an
Appraisal or internal valuation, as required pursuant to the preceding sentence,
has not been obtained within 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, if an Appraisal or internal valuation, as applicable, has not
been obtained within the immediately preceding 12 months, the Special Servicer
shall (a) with respect to any Mortgage Loan with an outstanding principal
balance equal to or in excess of $1,000,000, obtain an Appraisal, the costs of
which shall be paid by the Master Servicer as a Property Advance or (b) with
respect to any Mortgage Loan with an outstanding principal balance less than
$1,000,000, perform an internal valuation. On the first Distribution Date
occurring on or after the delivery of such Appraisal or valuation, the Special
Servicer shall adjust the Appraisal Reduction Amount to take into account such
Appraisal or valuation (regardless of whether the new Appraisal or valuation 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 Appraisal or internal
valuation, as applicable, and annual letter updates, as of the date of each such
subsequent Appraisal, internal valuation 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.
"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(i).
"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 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 amounts required to
be deposited in the Lower-Tier Distribution Account pursuant to Section 4.08,
but excluding the following, to the extent deposited in the Collection Account:
(a) amounts permitted to be used to reimburse the Master
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 pursuant to Section
3.12(a) or the Special Servicer pursuant to Section 3.12(b) 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(d), 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, and any amounts required to be paid to any Responsible
Party pursuant to Section 2.03(f); and
(k) 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.
"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 the
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 (i) the 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 otherwise described in the related Loan
Documents); 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 the Broker Strip Loan, the portion
of the Servicing Fee equal to 0.10% per annum of the Stated Principal Balance of
the Broker Strip Loan, calculated for the same number of days and on the same
basis as the Servicing Fee.
"Broker Strip Loan": The Mortgage Loan identified as Loan Number I0066 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 X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, 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 and Class J
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 and the Class A-2
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 LA-1
Interest.
"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 5.850%.
"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 LA-2
Interest.
"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": With respect to the initial Distribution
Date, a per annum rate equal to 6.110%, and thereafter, the lesser of such per
annum rate and the WAC Rate.
"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-4 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 LB Interest.
"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": With respect to the initial Distribution Date,
a per annum rate equal to 6.430%, and thereafter, the lesser of such per annum
rate and the WAC Rate.
"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-5 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 LC Interest.
"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": With respect to the initial Distribution Date,
a per annum rate equal to 6.730%, and thereafter, the lesser of such per annum
rate and the WAC Rate.
"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-6 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 LD Interest.
"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 7.121%, and thereafter, 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-7 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 LE Interest.
"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 7.121%, and thereafter, 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-8 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 LF Interest.
"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 5.800%.
"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-9 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 LG Interest.
"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 5.800%.
"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-10 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 LH Interest.
"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 5.800%.
"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-11 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 LJ Interest.
"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": With respect to the initial Distribution Date,
a per annum rate equal to 5.800% and thereafter, the lesser of such per annum
rate and the WAC Rate.
"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 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 LR Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-13 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-12 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 the Default Interest, subject to
offset, to the extent necessary, to pay Advance Interest Amounts.
"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 1999-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-14 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-3 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 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 and
the Class J Component Pass-Through Rate, weighted on the basis of their
respective Notional Amounts.
"Closing Date": January 20, 1999.
"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.
"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 1999-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 February 18, 1999, 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 B
Component, Class C Component, Class D Component, Class E Component, Class F
Component, Class G Component, Class H Component and Class J Component.
"Controlling Certificateholder": 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 Q, 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 Q, Class R and Class LR Certificates).
"Controlling Class Representative": The Controlling Certificateholder or
other representative 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. The initial Controlling Class Representative on the Closing Date
shall be First Chicago Capital Corporation, a Delaware corporation.
"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 1999-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 and Class A-2 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-11, 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": January 10, 1999.
"Deductible 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 1999-C1," Deductible
Reserve Account" which shall be an Eligible Account. The Deductible Reserve
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"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.
"Defeasance Loan": Those Mortgage Loans which provide the related Borrower
with the option to defease the related Mortgaged Property.
"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 one Collection Period, delinquent two Collection Periods, delinquent
three 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.
"DFC": Daiwa Finance Corp., a New York corporation.
"DFC Loan Sale Agreement": The Loan Sale Agreement, dated as of the Cut-Off
Date, by and between the Seller and DFC.
"DREFC": Daiwa Real Estate Finance Corp., a Delaware corporation.
"DREFC Loan Sale Agreement": The Loan Sale Agreement, dated as of the
Cut-Off Date, by and between the Seller and DREFC.
"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 Treasury Regulations Section 1.856-4(b)(5)(ii).
"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 February
18, 1999.
"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 Deductible Reserve Account, 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
S&P and "Aa3" by Moody's or, if applicable, the short-term rating equivalent
thereof, which is at least "P-1" by Moody's and "A-1" by S&P), or (B) as to
which the Master Servicer, the Special 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 sub-accounts of a single account in the case of the Lower-Tier
Distribution Account and the Upper-Tier Distribution 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 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 Insurance Policy": The Secured Creditor Impaired Property
Policy issued by American International Specialty Lines Insurance Company on or
before the Closing Date with respect to each Environmental Policy Loan, and any
successor policy relating to any Mortgaged Property securing an Environmental
Policy Loan.
"Environmental Policy Loan": Each Mortgage Loan listed on Annex A to this
Agreement.
"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, mandated improvements 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 1999-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.
"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(d), 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.
"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 X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H and Class J Certificates.
"GMACCM": GMAC Commercial Mortgage Corporation, a California corporation,
and its successors in interest.
"Grantor Trust": A segregated asset pool within the Trust Fund consisting
of the Default Interest, the Excess Interest and amounts held from time to time
in the Class Q Distribution Account, the Excess Interest Distribution Account
and the Deductible Reserve Account.
"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.
"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.
"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 each Responsible Party, 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 Certificate": Any Certificate in definitive, fully registered
form without interest coupons.
"Initial Deductible Reserve Amount": An amount equal to (i) with respect to
DFC, $18,350 and (ii) with respect to DREFC, $31,650.
"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
following 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 following 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 1999-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, each Responsible
Party (with respect to any Mortgage Loan which such Person acted as a
Responsible Party) 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.
"Lennar": Lennar Partners, Inc., a Florida corporation.
"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 product
of the Principal Recovery Percentage multiplied by an 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; provided,
however, that the Liquidation Fee with respect to any Mortgage Property
repurchased pursuant to Section 2.03 or purchased pursuant to Section 9.01 shall
be zero.
"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.
"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 GSMC Loan Sale Agreement, the DFC Loan Sale
Agreement, the ACLI Loan Sale Agreement or the DREFC 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 separate sub-account within the same
account as the Upper-Tier Distribution 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 1999-C1, Lower-Tier
Distribution Account" and which must be an Eligible Account.
"Lower-Tier Regular Interests": The Class LA-1, Class LA-2, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH and Class LJ Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest 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.
"Moody's": Moody's Investor Services, Inc., or its successor in interest.
"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") and a code indicating
whether such rate is a fixed or adjustable rate;
(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; and
(n) the Originator.
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 ACLI, DFC, DREFC 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 or
multifamily 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, or with respect to
the Environmental Insurance Policy, applied to pay any costs, expenses,
penalties, fines or similar items.
"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 any 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 Trustee or the Fiscal Agent, as applicable, and which, in the good faith
business judgment of the Master 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 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, by a certificate of a Servicing Officer delivered to the Trustee, the
Fiscal Agent and the Seller, 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 (including any
information provided by the 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 any 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 Appraisal. In addition, upon the
determination by the Master 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 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 LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH and Class LJ Interests which correspond
to the Certificate Principal Amounts of the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class J 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, the Special Servicer or a Responsible Party, 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 or Special 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 Financial, L.P., a Delaware limited partnership, Central
Park Capital, L.P., a Delaware limited partnership, DFC, DREFC, Aries Capital
Incorporated, an Illinois corporation, Imperial Thrift and Loan Association, a
California thrift and loan association, Parman Mortgage Associates, a New York
limited partnership, Progress Realty Advisors, Inc., a Pennsylvania corporation,
Secore Financial Corporation, a Pennsylvania corporation, Sutter Commercial
Capital, a California corporation and Wingate Realty Finance Corporation, a
Massachusetts corporation.
"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; provided, however, that neither the Master
Servicer nor any other party shall be entitled to interest, at the Advance Rate
or otherwise, in connection with any P&I Advance made with respect to the
Mortgage Loans identified as Loan Numbers 400030957 and R0492 on the Mortgage
Loan Schedule from the date of such Advance to and including the date of the end
of the applicable grace period for the related Mortgage Loan.
"Pass-Through Rate": Each of the Class A-1 Pass-Through Rate, the Class A-2
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 and the Class J 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
"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 Moody's, otherwise acceptable to S&P or Moody's, 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 Moody's,
otherwise acceptable to S&P or Moody's, 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 Moody's, otherwise acceptable to S&P or Moody's, 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 Moody's, otherwise acceptable to S&P or Moody's, 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 debt 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 money market fund ratings category (or, if not rated by S&P or
Moody's, otherwise acceptable to S&P or Moody's, 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 on 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 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;
(ii) the principal component of any payment on any Mortgage
Loan 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 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.
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"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 any Specially Serviced
Mortgage Loan, 1.00%.
"Principal Shortfall": For any Distribution Date, the amount, if any, by
which (i) the Principal Distribution Amount for the preceding Distribution Date
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
and Class J 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, 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.
"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 or the Trustee, as applicable.
"Public Global Certificate": Each of the Class A-1, Class A-2, 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 in one of the
three highest applicable rating categories by each Rating Agency, or (b) an
insurance 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), a company that
shall have a claim paying ability rated by each Rating Agency 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 S&P and "Baa2" by Moody's, unless such insurance
company is not rated by one or more Rating Agencies or has a claims paying
ability rated by one or more Rating Agencies in a rating category lower than
required herein, in which case 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
November 2030.
"Rating Agency": Any of S&P or Moody's. References herein to the highest
long-term unsecured debt rating category of S&P and Moody's shall mean "AAA"
with respect to S&P and "Aaa" with respect to Moody's 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 the Rating Agencies.
"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
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.
"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 B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J 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 product of the Principal Recovery Percentage times 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; and,
provided further, that the Rehabilitation Fee with respect to Mortgage Loans
repurchased pursuant to Section 2.03 or purchased pursuant to Section 9.01 will
be zero.
"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:
RELATED LOWER-TIER
RELATED CERTIFICATE REGULAR INTEREST
Class A-1 Class LA-1
Class A-2 Class LA-2
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
"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 Property Advances (to the extent not
reimbursed by or on behalf of the related Borrower) 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 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, GSMC, DFC and DREFC, 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 Underwriters 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 on
June 18, 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 B, Class C,
Class D, Class E, Class F, Class G, Class H and Class J Certificates,
collectively.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount equal to the product of 1/12 times the Servicing
Fee Rate and 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. 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 in excess of Prepayment Interest Excess 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 excess; 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 0.0838% (or, with respect
to the Mortgage Loan whose Loan Number set forth in the Mortgage Loan Schedule
is Loan Number I0066, 0.1838%).
"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, 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 obligation 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": Lennar 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 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 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.
"Startup Day": The day designated as such pursuant to Section 2.07(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance 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, 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. 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 Amount.
"Subordinate Certificates": Any of the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J 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; (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 of the Trustee's rights in the Reserve Accounts
and Lock-Box Accounts and 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 Class Q
Distribution Account, the Deductible Reserve Account and any REO Account
including reinvestment income thereon; and (ix) any environmental indemnity
agreements relating to the Mortgaged Properties.
"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 0.0038% per annum.
"Underwriters": Goldman, Sachs & Co. and Norwest Investment Services, Inc.
"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.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account (or separate sub-account within the
same account as the Lower-Tier Distribution 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 1999-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 B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J 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.
"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 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 Net 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 all amounts then due
and payable on such Mortgage Loan prior to being applied to Default
Interest or late charges, and shall be applied to Default Interest 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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
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 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. 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 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, the following
documents or instruments with respect to each Mortgage Loan so assigned:
(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
1999-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 1999-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) the Environmental Insurance Policy (or the original
binder with respect to the Environmental Insurance Policy); and
(xvi) any letters of credit and other written agreements
related to the Mortgage Loan.
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).
In addition, the Seller shall deliver, or cause to be delivered, the original
Environmental Insurance Policy on or prior to the date occurring 30 days after
the Closing Date.
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 (xvi), 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 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, except with respect to (vii) below, each of 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 its organization;
(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,
partnership agreement 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;
(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; and
(vii) The Seller has the full right to transfer all of the
Mortgage Loan Seller's interest in each Mortgage Loan acquired by the
Seller pursuant to the related Loan Sale Agreement to the Trust and
such interest has been validly transferred to the Trust free of any
liens created by the Seller.
(b) Each Responsible Party hereby makes each of the applicable
representations and warranties listed in Annex B 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 File and other 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, if such breach materially and adversely affects the value of
said Mortgage Loan or the interests of the Certificateholders therein,
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, 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.
Any action taken by the Special Servicer pursuant to this Section 2.03(d) with
respect to enforcing the repurchase obligations shall be taken in accordance
with the Servicing Standard and the REMIC Regulations.
(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 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(d) which also constitutes a default under the related Mortgage
Loan, such Responsible Party shall have a right to receive any amounts received
by the Master Servicer or Special Servicer to the extent actually received from
the Borrower with respect to such default and to the extent no other amounts are
then currently due and owing (including any unreimbursed Advances and any
interest thereon) with respect to the related Mortgage Loan, in an amount up to
the amount spent to cure the related breach. The Master Servicer or the Special
Servicer, as applicable, shall promptly remit such amounts to the appropriate
Responsible Party after receipt, but only to the extent necessary to make such
Responsible Party whole for any costs incurred in connection with any such
breach. This Section 2.03(f) shall not require the Master Servicer or Special
Servicer to, or create any obligation to, take any actions to collect any such
amounts from the related Borrower.
SECTION 2.04 Representations, Warranties and Covenants of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Seller and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
California; the Master 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, 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 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 any
other instrument governing its operations, or any laws, regulations,
orders or decrees of any governmental authority applicable to the
Master Servicer 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 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, 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;
(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 have been obtained or made;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer the
outcome of which, in the Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Master Servicer
from entering into this Agreement or materially and adversely affect
the ability of the Master Servicer to perform its obligations under
this Agreement; and
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.08(c) hereof.
(b) The representations and warranties set forth in paragraph
(a) above shall survive the execution and delivery of the Agreement. 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 and the Controlling Class
Representative.
SECTION 2.05 Representations, Warranties and Covenants of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Seller and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's bylaws or Articles of Incorporation or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, or result in the violation of
any law, rule, regulation, order, judgment or decree which the Special
Servicer or its property is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special
Servicer that has or, following a transfer of servicing
responsibilities to the Special Servicer pursuant to Section 3.24,
would have responsibilities concerning the servicing and administration
of Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.08(c). Neither the
Special Servicer nor any of its officers, directors or employees that
is or, following the occurrence of a transfer of servicing
responsibilities to the Special Servicer pursuant to Section 3.24,
would be involved in the servicing or administration of Mortgage Loans
has been refused such coverage or insurance; and
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Special Servicer, or compliance by the
Special Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any consent,
approval, authorization or order which has not been obtained or cannot
be obtained prior to the actual performance by the Special Servicer of
its obligations under this Agreement, and which, if not obtained would
not have a materially adverse effect on the ability of the Special
Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph
(a) above shall survive the execution and delivery of the Agreement. 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 and the Controlling Class
Representative.
SECTION 2.06 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 2.07(b).
SECTION 2.07 Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class LA-1, Class LA-2, Class LB, Class LC, Class LD, Class LE,
Class LF, Class LG, Class LH and Class LJ 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 X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
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) and the Class Q Distribution
Account. The Class A-2, 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 Deductible Reserve Account is beneficially owned by DFC
and DREFC. The Class Q Certificates and the interest of DFC and DREFC in the
Deductible Reserve Account do not represent regular or residual interests in
either the Upper-Tier REMIC or the Lower-Tier REMIC.
(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, 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.
(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 Special Servicer 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 or any such successor Master Servicer or Special
Servicer 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 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. 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
1999-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 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.
(c) To the extent (i) an operations and maintenance plan is
required to be established and executed pursuant to the terms of a Mortgage
Loan, or (ii) any repairs, capital improvements, actions or remediations are
required to have been taken or completed pursuant to the terms of the Mortgage
Loan, the Master Servicer shall determine whether the related Borrower has
failed to perform such obligations under the related Mortgage Loan as of the
date required under the related Mortgage Loan and report any such failure to the
Special Servicer within a reasonable time after the later of January 1, 2000 and
the date as of which such actions or remediations are required to be or to have
been taken or completed.
SECTION 3.05 Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution Account; Excess Interest
Distribution 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(d)
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 or the Special Servicer, as
applicable, and, to the extent permitted by applicable law, the Master Servicer
or the Special Servicer, as applicable, 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).
(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 2.07(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.
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 and the Excess Interest Distribution Account the
amounts required to be deposited in the Lower-Tier Distribution
Account, the Class Q Distribution Account, the Interest Reserve Account
and the Excess Interest Distribution Account pursuant to Sections
4.01(a)(i), 3.05(c), 3.25 and 3.05(d), respectively;
(ii) to pay or reimburse the Master 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(d), 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, unpaid 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 pay on or before each Distribution Date to any
Responsible Party any amounts required to be paid thereto pursuant to
Section 2.03(f);
(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 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 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) (each of the Collection Account, any REO Account and any Borrower
Account, 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, the Excess Interest 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 with respect to which earthquake insurance would be appropriate in
accordance with the Servicing Standard and such insurance is 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 this Section 3.08(a). 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 as a Property Advance and shall be reimbursable to the
Master 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
Special Servicer 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
Special Servicer 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 Special Servicer determines that granting of
such consent would likely result in a greater recovery, the Special Servicer, 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 Special
Servicer's regular commercial mortgage origination or servicing standards and
criteria (as evidenced in writing by the Special Servicer) and the terms of the
related Mortgage and (b) if the Stated Principal Balance of such Mortgage Loan
as of the date of such assumption (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 equal to the lesser of
(i) 1% of the aggregate Stated Principal Balances of all Mortgage Loans as of
the date of such assumption, and (ii) $10,000,000, the 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 Special Servicer 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. The Special
Servicer alone shall be responsible for processing any requests to waive
due-on-sale provisions contained in the Mortgage Loans. In the event the Master
Servicer receives any request to waive any due-on-sale provision it shall
promptly notify the Special Servicer of such request and provide the Special
Servicer with such information as is reasonably requested by the Special
Servicer.
(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 Special Servicer, 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 Special
Servicer (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. The
Special Servicer alone shall be responsible for processing any requests to waive
due-on-encumbrance provisions contained in the Mortgage Loans. In the event the
Master Servicer receives any request to waive any due-on-encumbrance provision,
it shall promptly notify the Special Servicer of such request and provide the
Special servicer with such information as is reasonably requested by the Special
Servicer.
(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.
(vi) To the extent consistent with the related Loan Documents,
the Master Servicer shall require the related Borrower to pay all costs
and expenses incurred in connection with the defeasance of the related
Mortgage Loans. In the event that the Borrower is not required to pay
any such costs and expenses under the terms of the Loan Documents, such
costs and expenses shall be Additional Trust Fund Expenses.
SECTION 3.10 Realization Upon Defaulted Mortgage Loans.
(a) Within 60 days after the occurrence of an Appraisal Reduction Event,
the Special Servicer shall, in the case of any Mortgage Loan with an outstanding
principal balance equal to or in excess of $1,000,000, obtain an updated
Appraisal or, in the case of any Mortgage Loan with an outstanding principal
balance of less than $1,000,000, perform an internal valuation 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 Special Servicer shall obtain annual letter
updates to any updated Appraisal or internal valuation, as the case may be. Any
Appraisal or internal valuation prepared in order to determine the Appraisal
Reduction Amount allocated pursuant to Section 4.01(j) shall be delivered by the
Special Servicer, upon request, to any Class F, Class G, Class H or Class J
Certificateholder.
(b) In connection with any foreclosure, enforcement of the Loan Documents
or other acquisition, the Master Servicer shall pay the out-of-pocket costs and
expenses in any such proceedings as a Property Advance unless the Master
Servicer determines, in its good faith judgment, that such Advance would
constitute 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 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, or 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 (or, in the case of an Environmental Policy Loan, an
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;
(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; and
(iii) that, consistent with the Servicing Standard, all
actions have been taken with respect to any environmental insurance
policy relating to such Mortgage Loan.
(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 and, with respect to any Environmental Policy Loan, the related
Environmental Insurance Policy (including that the environmental assessment
identify any potential pollution conditions (as defined in the Environmental
Insurance Policy) with respect to the related Mortgaged Property). 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. Copies of any
environmental assessment prepared pursuant to Section 3.10(e) shall be provided
to the Class F, Class G, Class H and Class J Certificateholders upon written
request to the Special Servicer.
(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 Master Servicer shall advance the cost of any
such compliance, containment, clean-up or remediation unless the Master Servicer
determines, in its good faith judgment, that such Advance would constitute 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.
(h) The Master 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 promptly provide information necessary to file such
report. The Master Servicer shall deliver a copy of any such report to the
Trustee. With respect to this Section 3.10(h), the Master Servicer may
conclusively rely upon the information provided to it by the Special Servicer.
(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, (i) to the extent
permitted by applicable law and the related Mortgage Loans and with respect to
Mortgage Loans which are not Specially Serviced Mortgage Loans, any late payment
charges (except to the extent used to offset Advance Interest), loan service
transaction fees, demand fees and beneficiary statement charges and (ii)
aggregate Prepayment Interest Excess (but only to the extent such amount exceeds
the aggregate Prepayment Interest Shortfall for the related Prepayment Period,
and 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 1/12th of 0.04% 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 the Rating
Agencies. 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 Mortgage Loans, (x)
with respect to any Mortgage Loan, all Assumption Fees, loan modification or
forbearance fees or extension fees and (y) with respect to any Specially
Serviced Mortgage Loans, late payment charges (except to the extent used to
offset Advance Interest Amounts), all loan service transaction fees, demand
fees, beneficiary statement charges 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 Special
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, 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. With respect to each Mortgage Loan, promptly (but
in no event later than 60 days following the end of such quarter) following the
end of the related Borrower's fiscal quarter, the Master Servicer shall deliver
or cause to be delivered to the Special Servicer and the Trustee, and, upon
request of and at the expense of the Person making such request, to each holder
of a Class F, Class G, Class H or Class J Certificate, and the Trustee shall
deliver or cause to be delivered, to the extent requested, to the Controlling
Class Representative promptly after receipt, the Borrower's most recent
quarterly financial statements, but only to the extent received from the related
Borrower. 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
Special Servicer, and the Trustee, and, upon request and at the expense of the
Person making such request, to each Holder of a Class F, Class G, Class H or
Class J Certificate, and the Trustee shall deliver or cause to be delivered, to
the extent requested, to the Controlling Class Representative promptly after
receipt, 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 Special Servicer and 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 Special Servicer and 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, any Rating Agency, or any Class F,
Class G, Class H or Class J Certificateholder, 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
2000, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer or the Special Servicer, as the
case may be, during the preceding calendar year and of its performance under
this Agreement has been made under such officer's supervision, (ii) to the best
of such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has fulfilled in all material respects its
obligations under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer, and the nature and status thereof, (iii) that, to the
best of such officer's knowledge, each sub-servicer has fulfilled its
obligations under its sub-servicing agreement in all material respects, or, if
there has been a material default in the fulfillment of such obligations,
specifying each such default known to such officer and the nature and status
thereof, (iv) that it has maintained an effective internal control system over
the servicing of mortgage loans including the Mortgage Loans, and (v) 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 two
separate REMICs 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.
SECTION 3.15 Annual Independent Public Accountants' Servicing Report. On or
before April 30th of each year, beginning with April 30, 2000, the Master
Servicer and the Special Servicer (each, a "reporting person") at its own
expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, to the effect that the
assertion of management of the Master Servicer or the Special Servicer that it
has maintained an effective internal control system over the servicing of
mortgage loans including the Mortgage Loans and other loans, for the preceding
calendar year (or shorter period from the Closing Date to the end of the related
calendar year) is fairly stated, based on an examination conducted substantially
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or the Audit Program for Mortgages serviced for FHLMC, except for such stated in
such report.
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, 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 "Lennar
Partners, Inc., 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 1999-C1, 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 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) [Reserved].
(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)(v).
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) $1,000,000 or more at least once every
12 months and (b) less than $1,000,000 at least once every 24 months, in each
case commencing in January 2000 (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.
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 and any 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, 2000 (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) Upon reasonable advance notice, 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 or Special Servicer, as the case may be, 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) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. The Special Servicer
shall give the Master Servicer and the Trustee not less than five Business Days'
written (facsimile) notice before the date on which the Master Servicer is
requested to make any Property Advance with respect to a given Mortgage Loan or
REO Property; provided, however, that only two Business Days' written
(facsimile) notice shall be required in respect of Property Advances required to
be made on an urgent or emergency basis (which may include, without limitation,
Property Advances required to make tax or insurance payments). In addition, the
Special Servicer shall provide the Master Servicer and the Trustee with such
information in its possession as the Master Servicer or the Trustee, as
applicable, may reasonably request to enable the Master Servicer or the Trustee,
as applicable, to determine whether a requested Property Advance would
constitute a Nonrecoverable Advance.
For purposes of distributions to Certificateholders and compensation to the
Master 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 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,
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 or the Fiscal Agent shall be
obligated to make a Property Advance as to any Mortgage Loan or REO Property if
the Master Servicer, the Trustee or the Fiscal Agent, as applicable, determines
that such Advance will be a Nonrecoverable Advance. The Trustee and the Fiscal
Agent shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a Property Advance, if made, would be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent, 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 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 hereby covenants and agrees 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) Lennar 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.
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 2.05(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, the Controlling Class Representative and the Trustee 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 if Lennar
ceases to be 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.
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 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.
With respect to each Environmental Policy Loan, the Master Servicer and the
Special Servicer, as applicable, shall enforce and comply with the terms of the
related Environmental Insurance Policy, including, without limitation, any time
restrictions contained therein. The Master Servicer or the Special Servicer, as
the case may be, shall apply amounts received under any Environmental Insurance
Policy and any amounts withdrawn from the Deductible Reserve Account in
accordance with the claim which was made under such policy (i.e., claims made
for the principal balance of the related Environmental Policy Loan shall be
applied as principal and interest, and claims made for costs, expenses,
penalties, fines and similar items shall be applied to pay such amounts).
In the event the Special Servicer shall agree to a modification of an
Environmental Policy Loan which involves the substitution of a new property for
a Mortgaged Property, the Special Servicer shall require the related Borrower,
as a condition to agreeing to such modification, to purchase a replacement
insurance policy, issued by an insurer with the same claims paying rating as the
current insurer and on substantially similar terms as the existing Environmental
Insurance Policy. In addition, in connection with any extension of the Maturity
Date of an Environmental Policy Loan, the Special Servicer shall give prompt
written notice of such extension to the insurer under the related Environmental
Insurance Policy and shall execute such documents as are reasonably required by
such insurer to procure an extension of such Environmental Insurance Policy;
provided, however, that any such extensions shall be without cost to the Master
Servicer, the Special Servicer or the Trust Fund.
SECTION 3.27 Modifications, Waivers and Amendments.
(a) Subject to subsections (b) through (g) below, as applicable, the
Special Servicer may agree to any modification, waiver or amendment of any term
of any Mortgage Loan.
(b) The Special Servicer shall determine, in accordance with the Servicing
Standard, that any modification, waiver or amendment is appropriate and, except
as provided in Section 3.09 and Sections 3.27(n) and 3.27(o), only the Special
Servicer may consent to modifications, waivers or amendments of any term of any
Mortgage Loan.
(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 Special Servicer, 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 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 Note or Mortgage relating to a Specially Serviced Mortgage Loan;
(iv) extend the Maturity Date of any Specially Serviced
Mortgage Loan;
(v) permit the substitution of collateral for any Specially
Serviced Mortgage Loan; and/or
(vi) 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 Appraisal of the related
Mortgaged Property, if otherwise required pursuant to this Agreement or the
Servicing Standard), and (z) with respect to clause (v) above, the Special
Servicer has received written confirmation from each Rating Agency that such
substitution will not, in and of itself, lead to the downgrade, qualification or
withdrawal of the ratings assigned to any Certificates.
(e) 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.
(f) The Special Servicer shall provide copies of any modifications,
waivers, amendments or extensions to the Controlling Class Representative and
the Holder of any Class F, Class G, Class H or Class J Certificate. 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 or Special Servicer, as
applicable) 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 Special Servicer
pursuant to subsection (a), (e) or (f) above, as applicable, the Special
Servicer shall deliver to the Trustee (with a copy to the Master 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.
(g) 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.
(h) 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.
(i) 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. Upon making such
determination, the Special Servicer shall notify the Trustee of such rejection
and deliver to the Trustee a proposed notice to Certificateholders which shall
include a copy of the Asset Status Report, and the Trustee shall send such
notice to all Certificateholders. If a majority of such Certificateholders, as
determined by Voting Rights, fail, within 5 days of the Trustee's sending such
notice, to reject such Asset Status Report, the Special Servicer shall implement
the same. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.27(i). The Trustee shall be entitled to reimbursement from the
Trust Fund for the reasonable expenses of providing such notices. 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.
(j) 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.
(k) 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.
(l) 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.
(m) In accordance with the foregoing subsections of this Section 3.27, the
Special Servicer 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, 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 Special Servicer (and the Special Servicer
may rely on an Opinion of Counsel in making such determination) and (b) would be
in accordance with the Servicing Standard. 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.
(n) Notwithstanding the foregoing subsections of this Section 3.27, the
Master Servicer may modify or amend the terms of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) without the consent of the Special Servicer in
order to (i) cure any ambiguity therein or (ii) correct or supplement any
provisions therein which may be inconsistent with any other provisions therein
or correct any error, provided that such modification or amendment would not be
a "significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b) (and the Master Servicer may rely on an Opinion
of Counsel at the related Borrower's expense in making such determination).
(o) Notwithstanding the foregoing subsections of this Section 3.27, the
Master Servicer may grant, without any Rating Agency confirmation as provided in
Section 3.09(e) or Special Servicer approval, a Mortgagor's request for consent
to subject the related Mortgaged Property to an easement or right-of-way for
utilities, access, parking, public improvements or another purpose, and may
consent to subordination of the related Mortgage Loan to such easement or
right-of-way provided the Master Servicer shall have determined in accordance
with the Servicing Standards that such easement or right-of-way shall not
materially interfere with the then-current use of the related Mortgaged
Property, or the security intended to be provided by such Mortgage, the related
Mortgagor's ability to repay the Mortgage Loan, or materially or adversely
affect the value of such Mortgaged Property.
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 or constituting P&I Advances for
the related Distribution Date equal to the sum of (A) Available Funds (less
amounts described in clauses (iii) and (v) of the definition thereof) 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. On each Master Servicer
Remittance Date, the Trustee shall withdraw from the Deductible Reserve Account
any amounts required to be deposited in the Lower-Tier Distribution Account
pursuant to Section 4.08 and shall withdraw from the Interest Reserve Account
with respect to the Master Servicer Remittance Date for March of any calendar
year, the related withheld amounts pursuant to Section 3.25, and shall deposit
any such amounts in the Lower-Tier Distribution Account. On each Distribution
Date, the amount that has been so transferred to the Lower-Tier Distribution
Account from the Collection Account or as P&I Advances or pursuant to the
preceding sentence 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, reimbursements for Realized
Losses (and Additional Trust Fund Expenses) and timing of distributions on each
Lower-Tier Regular Interest will be identical to such amounts, rates,
reimbursements 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 B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J 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 LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH or Class LJ 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 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: 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 such
Distribution Date;
(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 such Distribution Date less the
portion of such 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 such Distribution Date less the
portion of such 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 such Distribution Date less the
portion of such 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 such Distribution Date less the
portion of such 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 such Distribution Date less the
portion of such 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 such Distribution Date less the
portion of such 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 such Distribution Date
less the portion of such 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 such Distribution Date less the
portion of such 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; and
(xxvii) Twenty-seventh, 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 and Class A-2 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 and Class A-2
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-seventh 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
the Mortgage Loans 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 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 the Mortgage Loans 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 the Mortgage Loans 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 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 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 J
Certificates; second, to the Class H Certificates, third, to the Class G
Certificates; fourth, to the Class F Certificates; fifth; to the Class E
Certificates; sixth, to the Class D Certificates; seventh, to the Class C
Certificates; eighth, to the Class B Certificates, and, finally, pro rata to the
Class A-1 and Class A-2 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 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 B, Class C,
Class D, Class E, Class F, Class G, Class H and Class J Certificates resulting
from allocations of Realized Losses.
(h) All amounts distributable, or reductions allocable on account of
Realized Losses or Additional Trust Fund Expenses, 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 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 J Certificates; second, to the Class H
Certificates; third, to the Class G Certificates; fourth, to the Class F
Certificates; fifth, to the Class E Certificates; sixth, to the Class D
Certificates; seventh, 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) 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 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 or internal valuation,
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 internal valuation (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(d), 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 Responsible Party shall provide the Master Servicer with the
applicable "CSSA Setup File" prior to February 1, 1999.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall make available to the Financial Market Publisher and each
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 (714) 282-5518 and requesting
statement No. 380, (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, the Special Servicer, each Underwriter 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, and if requested, the Rating Agencies, using the media
mutually agreed upon by the Trustee, each Underwriter 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 Underwriter 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 4.04(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 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;
provided, however, that neither the Master Servicer nor any other party shall be
entitled to interest, at the Advance Rate or otherwise, on any P&I Advance made
in connection with the servicing of the Mortgage Loans identified as Loan
Numbers 400030957 and R0492 on the Mortgage Loan Schedule from the date of such
P&I Advance to and including the date of the end of the applicable grace period
for the related Mortgage Loan 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 this Section 4.06 unless the Trustee or the Fiscal Agent, in
good faith, makes a determination prior to the times specified in this Section
4.06 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,
and the Class Q Distribution Account, (ii) Excess Interest, proceeds therefrom,
and the Excess Interest Distribution Account and (iii) the Deductible 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 therefrom on unreimbursed Advances to the
Master Servicer, the Trustee and the Fiscal Agent, as applicable, 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 2.07(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) to DFC and DREFC income earned
with respect to the Deductible Reserve Account.
SECTION 4.08 Deductible Reserve Account.
(a) On or before the Closing Date, the Trustee shall establish the
Deductible Reserve Account. On the Closing Date, DFC and DREFC shall deposit an
amount equal to the applicable Initial Deductible Reserve Amount into the
Deductible Reserve Account to be held by the Trustee for the benefit of the
Certificateholders. In the event that a claim is made by the Master Servicer or
the Special Servicer under an Environmental Insurance Policy and the Master
Servicer or the Special Servicer, as the case may be, receives proceeds relating
to such claim, on or prior to the Master Servicer Remittance Date, the Master
Servicer or the Special Servicer, as the case may be, shall notify the Trustee
of the receipt of such proceeds and the amount of any deductible applicable to
the related Environmental Insurance Policy. Such notice shall direct the Trustee
to either (i) deposit the amount of such deductible with respect to the related
Mortgaged Property (or, in the event that the amount of such deductible exceeds
the amount remaining in the Deductible Reserve Account, the amount so remaining
in the Deductible Reserve Account) in the Lower-Tier Distribution Account, or
(ii) remit the amount of such deductible with respect to the related Mortgaged
Property (or, in the event that the amount of such deductible exceeds the amount
remaining in the Deductible Reserve Account, the amount so remaining in the
Deductible Reserve Account) to the Master Servicer or the Special Servicer, as
the case may be, to be applied to pay certain costs expenses, penalties, fines
or similar items related to the basis of claim under the Environmental Insurance
Policy. Notwithstanding the foregoing, the Master Servicer or the Special
Servicer, as the case may be, may direct the Trustee to apply the requested
amounts in a combination of the ways described in (i) and (ii) above. Upon
receipt of such notice from the Master Servicer or Special Servicer, as the case
may be, the Trustee shall withdraw the requested amounts from the Deductible
Reserve Account and apply them as directed.
(b) Amounts held in the Deductible Reserve Account shall be held by the
Trustee in an Eligible Account and may not be invested. Upon the earlier to
occur of (i) the termination of the Trust Fund pursuant to Section 9.01 or (ii)
the liquidation, repurchase, release from the lien of the Mortgage or defeasance
of any and all Mortgage Properties for which an Environmental Insurance Policy
was in place on the Closing Date, the Trustee shall withdraw any remaining
amounts held in the Deductible Reserve Account and shall promptly remit them to
DFC and DREFC or their designee, pro rata, based upon the applicable Initial
Deductible Reserve Amount, or as otherwise directed by DFC and DREFC in writing.
(c) The Deductible Reserve Account is an "outside reserve fund" within the
meaning of the REMIC Provisions, and is beneficially owned by DFC and DREFC,
which shall report all income, gain, expense or loss with respect thereto. Any
amounts reimbursed to the Deductible Reserve Account from the Lower Tier REMIC
shall be treated as paid to DFC and DREFC in their capacities as beneficial
owners thereof.
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 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 Q Certificates, the Class R
Certificates, and the Class LR Certificates.
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 Q, Class R and Class LR Certificates
will be substantially in the forms annexed hereto as Exhibits A-1 through A-14
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
and Class J 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 and Class J Certificates (the
"Rule 144A Global Certificates") in definitive, fully registered form without
interest coupons, (ii) Regulation S global Class F, Class G, Class H and Class J
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-8
through A-11 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 AMOUNT OR
CLASS MINIMUM DENOMINATION NOTIONAL AMOUNT)
A-1 $10,000.00 $165,650,000
A-2 $10,000.00 $455,533,000
X $5,000,000.00 $890,585,728
B $10,000.00 $42,303,000
C $10,000.00 $44,529,000
D $10,000.00 $57,888,000
E $10,000.00 $13,359,000
F $10,000.00 $46,756,000
G $10,000.00 $28,944,000
H $10,000.00 $6,679,000
J $10,000.00 $28,944,728
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 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-14 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 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 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 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 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 S&P and "A2" by Moody's, 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 S&P and "Baa2" from Moody's, unless the Trustee shall have received
prior written confirmation from Moody's 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
negligent 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 the Special Servicer may assign its
respective rights and delegate its respective duties and obligations under this
Agreement, provided that, in the case of the Master Servicer, the Master
Servicer has received the prior written consent of the Seller, and provided
further that, with respect to either the Master Servicer or the Special
Servicer: (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 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.
SECTION 6.07 Year 2000 Compliance. Each of the Master Servicer and the
Special Servicer covenant that by August 31, 1999, any custom-made software or
hardware designed or purchased or licensed by the Master Servicer or the Special
Servicer, as applicable, and used by the Master Servicer or the Special
Servicer, as applicable, in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement will not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software or hardware to
be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000.
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,
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, 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 notice by public announcements
(including, without limitation, by published notice) by, or written
correspondence from, Moody's 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 Moody's to
any Class of Certificates; or
(viii) the Master Servicer is removed from S&P's approved
master servicer list and the ratings of any of the Certificates by S&P
are downgraded, qualified or withdrawn (including, without limitation,
"negative credit watch") in connection with such removal;
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 notice by public announcement
(including, without limitation, by published notice) by, or written
correspondence from Moody's 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 Moody's to
any Class of Certificates; or
(viii) the Special Servicer is removed from S&P's approved
special servicer list and the ratings of any of the Certificates by S&P
are downgraded, qualified (including, without limitation, "negative
credit watch") or withdrawn in connection with such removal;
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
moneys 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 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 software 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, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any such
party or parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance 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.
(vii) For purposes of this Agreement, the Trustee shall have
notice of an event only when a Responsible Officer of the Trustee has
received notice of such event.
(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 either 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
either 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 moneys 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
S&P and "Baa2" by Moody's (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 S&P and "Aa2"
by Moody's the rating on the unsecured long term debt of the Trustee must be at
least "AA" by S&P and "Aa2" by Moody's 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). 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 Moody's 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 Moody's, 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 or its designee 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) The initial Controlling Class Representative shall be First Chicago
Capital Corporation, a Delaware corporation.
(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 of 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 Property Advances (to the
extent not reimbursed by or on behalf of the related
Borrower), 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
Special Servicer, or if neither such Holders nor the Special Servicer do; the
Seller, or if neither such Holders nor the Special Servicer nor that Seller do,
the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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 (ii) the holders of the Classes of Certificates entitled to
receive the Excess Interest with respect to such Mortgage Loan, as specified in
Section 2.07(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 or 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, (iv) to DFC and DREFC or its
designee any remaining amounts in the Deductible Reserve Account, pro rata,
based upon the applicable Initial Deductible Reserve Amount, or as otherwise
directed in writing by DFC and DREFC and (v) to the holders of Certificates
entitled to receive Excess Interest, as provided in Section 2.07(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 Services
Group,
GS Mortgage Securities Corporation II,
Series 1999,-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 1999,-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, to:
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, Pennsylvania 19044
Attention: Servicing Manager
With a copy to:
CMBS Manager
GMAC Commercial Mortgage
150 South Wacker
Suite 2800
Chicago, Illinois 60606
Attention: Gary Severyn
If to the Special Servicer, to:
Lennar Partners, Inc.
760 NW 107th Avenue
Suite 400
Miami, Florida 33139
Attention: Ronald Schrager
If to the Underwriters, to:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Rolf Edwards
With a copy to:
Jay Strauss, Esq.
and
Norwest Investment Services, Inc.
608 Second Avenue South
MS0140
Minneapolis, Minnesota 55479
Attention: Michael Petersen
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.
1 Lake Shore Centre
3281 Guasti Road, Suite 800
Ontario, California 91761
Attention: President
If to DFC, to:
Daiwa Finance Corp.
32 Old Slip
New York, New York 10005,
Attention: General Counsel
With a copy to:
Jeffrey Lenobel, Esq.
Schulte, Roth & Zabel LLP
900 Third Avenue
New York, NY 10022
If to DREFC, to:
Daiwa Real Estate Finance Corp.
32 Old Slip
New York, New York 10005,
Attention: General Counsel
With a copy to:
Jeffrey Lenobel, Esq.
Schulte, Roth & Zabel LLP
900 Third Avenue
New York, NY 10022
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(d);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection 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
3.13;
(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:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial Mortgage Backed Securities 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 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 either 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, the Deductible Reserve Account, Lower-Tier Distribution
Account, Upper-Tier Distribution Account, Class Q Distribution 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.
SECTION 10.10 Request by Certificateholders. Where information or reports
are required to be delivered to a Certificateholder upon request pursuant to the
terms of this Agreement, such request can be in the form of a single blanket
request by a Certificateholder to the Trustee, the Master Servicer or the
Special Servicer, as applicable, and, with respect to such Certificateholder,
such request shall be deemed to relate to each date such report or information
may be requested. The notice shall set forth the applicable Sections where such
reports and information are requested.
[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: ________________________________
DAIWA FINANCE CORP.,
as Responsible Party
By: ______________________________________
Name: _________________________________
Title: ________________________________
DAIWA REAL ESTATE FINANCE CORP.,
as Responsible Party
By: ______________________________________
Name: _________________________________
Title: ________________________________
<PAGE>
AMRESCO CAPITAL LIMITED, INC.,
as Responsible Party
By: ______________________________________
Name: _________________________________
Title: ________________________________
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Master Servicer
By: ______________________________________
Name: _________________________________
Title: ________________________________
LENNAR PARTNERS, INC.,
as Special Servicer
By: ______________________________________
Name: _________________________________
Title: ________________________________
LASALLE NATIONAL BANK,
as Trustee, Custodian, Certificate
Registrar
By: ______________________________________
Name: _________________________________
Title: ________________________________
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By: ______________________________________
Name: _________________________________
Title: ________________________________
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ___ day of January, 1999, before me, the undersigned, a Notary
Public in and for the State of New York, 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 GS Mortgage Securities
Corporation II, a Delaware corporation, 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 New York.
My Commission expires: _____________
(stamp)
(seal)
This instrument prepared by: _________________
<PAGE>
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On this ____ day of January, 1999, before me, _________________________, a
Notary Public in and for the State of Texas, personally appeared
______________________, the ______________________ of AMRESCO Capital Limited,
Inc., personally known to me or proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signatures on the instrument the corporations upon behalf of which
the person acted executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________________________
NOTARY PUBLIC in and for the State of Texas.
My Commission expires: _____________________
(stamp)
This instrument prepared by:
<PAGE>
STATE OF [ ] )
) ss:
COUNTY OF [ ] )
On this ____________ day of January, 1999, 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
__________________________; is the ________________________ of Goldman Sachs
Real Estate Funding Corp., the corporation that executed the foregoing
instrument as General Partner of Goldman Sachs Mortgage Company, a New York
limited partnership; 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 NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this _________ day of January, 1999, before me, the undersigned, a
Notary Public in and for the State of New York, 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 Daiwa
Finance Corp., a New York corporation, 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 New York.
My Commission expires: __________________________
(stamp)
(seal)
This instrument prepared by: _______________________
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of January, 1999, before me, ________________________, a
Notary Public in and for said State, personally appeared
________________________, the __________________ of Daiwa Real Estate Finance
Corp., a Delaware Corporation, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that such person executed the same in
their authorized capacity, and that by the signature on the instrument the
corporation upon behalf of which the person acted executed the within
instrument.
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 January, 1999, 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
__________________________; is the ________________________ of [ ]; 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 January, 1999, 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
__________________________; is the ________________________ of [Lennar]; 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 January, 1999, 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
__________________________; is the ________________________ of [ ]; 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 January, 1999, 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
__________________________; is the ________________________ of [ ]; 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 1999-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 1999-C1, CLASS A-1
Pass-Through Rate: 5.850%
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class A-1 Certificates: Date: June 18, 2028
$165,650,000
CUSIP: 36228C DC 4 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CDC47 [_____________]
Common Code: 009389695
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 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 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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 1999-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 1999-C1, CLASS A-2
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class A-2 Certificates: Date: June 18, 2028
$455,533,000
CUSIP: 36228C DD2 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CDD20 $[_______________]
Common Code: 009389768
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
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 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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 1999-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 B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H AND CLASS J 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 CERTIFICATE IS ISSUED ON JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
6.06219% OF THE INITIAL CLASS X 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 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 CLASS X NOTIONAL AMOUNT IS APPROXIMATELY 3.50132315%;
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 9.94%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY 18, 1999) AS A PERCENTAGE OF THE
INITIAL CLASS X NOTIONAL AMOUNT, CALCULATED USING THE EXACT METHOD, IS
APPROXIMATELY 0.04683811%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS X
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Notional Amount of the Scheduled Final Distribution
Class X Certificates: $890,585,728 Date: June 18, 2028
CUSIP: 36228C DE 0 Initial Notional Amount of
this Certificate:
ISIN: US36228CDE03 $[______________]
Common Code: 009389784
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 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 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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-4
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 1999-C1, CLASS B
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class B Certificates: Date: June 18, 2028
$42,303,000
CUSIP: 36228C DF 7 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CDF77 $[__________]
Common Code: 009389814
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 X, 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 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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-5
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS C
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class C Certificates: Date: June 18, 2028
$44,529,000
CUSIP: 36228C DG 5 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CDG50 $[___________]
Common Code: 009389865
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 X, Class
B, Class D, Class E, Class F, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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-6
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS D
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class D Certificates: Date: June 18, 2028
$57,888,000
CUSIP: 36228C DH 3 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CDH34 $[_____________]
Common Code: 009389938
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 X, Class
B, Class C, Class E, Class F, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 the 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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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-7
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
93.88842%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 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 6.15114308 (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY 8.12%; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY 18,
1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.03922352%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1, CLASS E
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class E Certificates: Date: June 18, 2028
$13,359,000
CUSIP: 36228C DJ 9 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228C DJ99 $[_____________]
Common Code: 009390049
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 X, Class
B, Class C, Class D, Class F, Class G, Class H, Class J, Class Q, Class R, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners Inc., as
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 February 18, 1999 (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 (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor that Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative, the Seller and the
Master Servicer; 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-8
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 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.
[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 CERTAIN OTHER CLASSES OF
CERTIFICATES 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 JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
70.54201%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 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 29.49021111%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 10.53%; AND (III) THE AMOUNT
OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY
18, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.12626419%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS F
Pass-Through Rate: 5.800000%
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class F Certificates: Date: June 18, 2028
$46,756,000
Initial Certificate Principal
CUSIP: [for 144A: 36228C DK6] Amount of this Certificate:
[for Reg. S: U03911 AW1] $[_______________]
[for Reg. D: 36228C DL4]
ISIN: US36228CDK62
Common Code: 009390081
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 X, Class
B, Class C, Class D, Class E, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 February 18, 1999 (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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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-9
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 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.
[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 CERTAIN OTHER CLASSES OF
CERTIFICATES 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 JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
56.69141%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 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 43.34081111%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 12.72%; AND (III) THE AMOUNT
OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY
18, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.10956348%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS G
Pass-Through Rate: 5.80000%
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class G Certificates: Date: June 18, 2028
$28,944,000
CUSIP: [for 144A: 36228C DM 2] Initial Certificate Principal
[for Reg. S: U03911 AX 9] Amount of this Certificate:
[for Reg. D: 36228C DN0] $[_______________]
ISIN: US36228CDM29
Common Code: 09390251
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 X, Class
B, Class C, Class D, Class E, Class F, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 February 18, 1999 (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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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-10
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 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.
[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 CERTAIN OTHER CLASSES OF
CERTIFICATES 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 JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
47.89701%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 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 52.13521111%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 14.41%; AND (III) THE AMOUNT
OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY
18, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.08547364%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS H
Pass-Through Rate: 5.8000%
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class H Certificates: Date: June 18, 2028
$6,679,000
CUSIP: [for 144A: 36228C DP 5] Initial Certificate Principal
[for Reg. S: U03911 AY 7] Amount of this Certificate:
[for Reg. D: 36228C DR1] $[_______________]
ISIN: US36228CDP59
Common Code: 009390294
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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 February 18, 1999 (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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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-11
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-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 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.
[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 CERTAIN OTHER CLASSES OF
CERTIFICATES 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 JANUARY 20, 1999, AND BASED ON ITS ISSUE PRICE OF
21.81441%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 2 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 3.50132315%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.94%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (JANUARY 20, 1999 TO FEBRUARY
18, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY 0.04683811%.
<PAGE>
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS J
Pass-Through Rate: As determined in
accordance with the Pooling Agreement
First Distribution Date: February 18, 1999 Cut-Off Date: January 10, 1999
Aggregate Initial Certificate Principal Scheduled Final Distribution
Amount of the Class J Certificates: Date: June 18, 2028
$28,944,728
CUSIP: [for 144A: 36228C DQ 3] Initial Certificate Principal
[for Reg. S: U03911 AZ 4] Amount of this Certificate:
[for Reg. D: 36228C DS9] $[_______________]
ISIN: US36228CDQ33
Common Code: 009390316
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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 February 18, 1999 (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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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-12
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-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 1999-C1, CLASS Q
Percentage Interest: 100%
Cut-Off Date: January 10, 1999
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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 February 18, 1999 (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, 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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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 its
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-13
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-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 1999-C1, CLASS LR
Percentage Interest: 100%
Cut-Off Date: January 10, 1999
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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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, 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 February 18, 1999 (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 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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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 A-14
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-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 1999-C1, CLASS R
Percentage Interest: 100%
Cut-Off Date: January 10, 1999
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 X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, 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 January 10,
1999 (the "Pooling Agreement"), by and among GS Mortgage Securities Corporation
II, as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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, 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 February 18, 1999 (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; (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 of the Trustee's rights in the Reserve Accounts and Lock-Box Accounts
and 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 Class Q Distribution Account, the
Deductible Reserve Account and any REO Account including reinvestment income
thereon; and (ix) any environmental indemnity agreements relating to the
Mortgaged Properties.
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 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 Property Advances
(to the extent not reimbursed by or on
behalf of the related Borrower), 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 Special Servicer, or if neither such Holders nor the Special Servicer do;
the Seller, or if neither such Holders nor the Special Servicer nor the Seller
do, the Master Servicer or, if neither such Holders nor the Special Servicer 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, in the case of a
termination by such Holders, the Controlling Class Representative, or, in the
case of a termination by the Special Servicer, the Controlling Class
Representative and the Seller, or in the case of a termination by the Seller,
the Master Servicer and the Holders of the Class LR Certificates, or, in the
case of a termination by the Master Servicer, the Controlling Class
Representative and the Seller, or, in the case of a termination by the Holder of
a Class LR Certificate, the Controlling Class Representative and the Seller and
the Master Servicer; the Seller and the Master Servicer, 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 B
MORTGAGE LOAN SCHEDULE
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Current Current Revised Excess
Monthly Interest Rate (ARD Rate (ARD
Loan Number Borrower Name Payment Rate Loans) Loans)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
400029165 Torpedo Factory Associates, L.P. 137,184.77 7.2200
948 Whitehall Hotel, L.L.C. 142,236.21 7.7100
400029229 Granada Apartments, L.P. 125,289.22 6.9800
947 Talisman Roswell, LLC 125,131.91 7.8600
914 Swanton St. 184 LLC, et al 94,361.87 7.8900
908 International-Republic Associates Limited 87,511.44 7.3500
09-0001186 Golden Hotels Limited Partnership 83,122.79 7.2500
09-0001199 Underbruckner Realty Co. LLC 90,111.97 8.2800
400029179 Jemal's Phillips L.L.C. 74,949.58 7.3300
943 Memphis Downtown Hotel Partners, L.P. 76,886.85 7.1500
924 Q.E.M Associates, L.L.C. 65,592.68 6.8600
400029303 Jefferson Arbour Limited Partnership 65,333.90 6.9200
400031043 CRF Springs Plaza LP 58,423.60 6.3900
930 FSF Meridian East Associates, LLC 58,780.67 6.7100
400029281 Midcor Associates IV, L.L.C. 56,826.95 6.4900
400029270 RVA Center LLC 53,424.79 6.3900
09-0001145 Tully/I-10 Venture, Ltd. 54,735.91 6.6800
400030928 La Villita Motor Inns 56,874.97 6.5300
09-0001201 Stevens Center Properties, LLC 62,437.49 8.2000
400029261 Evans Mill Properties, L.P. 53,455.01 6.9200
R0492 Southlake Associates 54,574.10 7.2500
921 Embassy Investments L.L.C. 58,523.27 7.3500
400030943 Gold Coast Hotel Limited Partnership 55,779.13 6.8500
400031116 Beacon Associates, Inc. 52,100.74 6.7900
400029289 Union Associates 51,948.53 7.2700
400029254 American National Bank & Trust Co., as Trustee 49,595.84 6.9400
400031126 Consolidated Capital Properties Trust 47,833.92 6.8500
400029283 SandPost, LLC 46,195.69 6.9200
400030930 78th & Brown Deer Operating Associates 45,026.14 7.1000
09-0001170 Oxford/Santa Fe, LTD 43,247.11 6.8500
931 Fountain Springs, LLC 42,708.38 7.0300
400030878 NMS-2 Building Corp. 43,425.59 6.9000
942 Westwood Investments, Ltd 41,747.64 7.4500
400030941 21 East 66th Street Commercial, L.L.C. 38,073.39 5.8400
400029230 Segoe Operating Associates, LP 44,066.64 7.4300
901 Holualoa Occidential Office, LLC 44,027.72 7.4200
932 625 West 1st. Street, LLC 39,137.94 6.9900
R0869 Anyong, LTD. 40,196.51 7.7700
09-0001179 Diamond Back, LLC 38,435.73 7.3500
400031127 Hilgard Apartments 972, L.L.C. 35,168.00 6.7900
400031122 FALLS OF POINT WEST, LLC 35,060.20 6.7600
927 Mullen-Rubin Associates 40,363.26 7.6300
09-0001189 Northborough Station Apartments, Ltd. 34,522.37 6.7000
917 Stuyvesant Realty Associates, LLC. 35,628.48 6.9600
09-0001188 ACLP Parkway Plaza, L.P. 35,033.36 7.1250
M0345 Lantern Square Associates, LP 33,038.71 6.5500
944 Ridge of the Fountain, LLC 33,018.84 6.7900
09-0001197 Ladies Mile, LLC 36,583.72 7.9700
400030946 Mahoney Carter Ads LLC 30,592.24 6.5800
400030933 Current Development, L.L.C. 33,285.09 6.7900
I0198 MJB Enterprises, Inc. 31,601.87 7.0000
400029117 Via Princessa Partners, LP 32,525.95 7.3500
400029280 Fairway Center Associates, L.L.C. 34,032.51 7.2700
400029203 Quail Park V Associates LP 33,308.62 7.0300
400030988 Aspen Hills Limited Partnership 29,728.36 6.6100
903 Barakat Corporation 43,629.17 7.3500
400029268 Pegasus Greenwood, LLC 30,944.49 7.1100
09-0001191 C.M.I. Real Estate Partners, Ltd. 32,526.31 7.2500
09-0001173 James A. Martens and Eva L. Martens 28,799.12 6.6200
400029271 RVA Cinema LLC 30,637.88 6.5900
400030919 Foxwood Crossing, LLC 28,981.04 6.7900
400030920 Savannah Inns, L.P. 31,775.16 7.2400
910 Hohokam Hotel Investors, L.L.C 33,814.65 7.7500
M0536 Bluegrass Village Associates, L.P. 27,320.47 6.5500
922 1157 Chapel Street, L.L.C. 32,739.74 7.5000
09-0001180 Calliope Shopping Center JV 27,941.42 7.2400
09-0001165 Cuero Partners, Ltd. 27,838.86 6.8300
400030912 1250 North McDowell LLC 28,732.13 7.1800
400029260 Oaks Landing Investment Group,LLC 28,450.04 7.0700
911 Fountainhead Apartments, L.L.C 27,205.71 7.2200
915 Chelsea Realty Associates. L.L.C. 26,531.58 6.9700
906 Hazard Hotels, Inc. 31,376.65 7.8600
M0543 Perkins Woods,L.P. 24,969.64 6.5500
400029272 RVA Office LLC 26,333.28 6.6400
400031124 Sunshine Properties L.P. 24,722.55 6.7800
400030936 Sheehan SLO, LLC 29,233.70 6.9000
09-0001154 The Denver Gardens Company, LLC. 24,974.04 7.0100
09-0001152 The Denver Gardens Company, LLC 23,975.07 7.0100
09-0001196 Tabani Ardmore, OK, L.L.C. 25,001.91 7.7200
400030931 R. A. Sanese Company, LTD 24,492.21 6.8900
582 JH2 Investments, LLC 26,436.51 7.7500
400029288 Marketplace Associates LLC 24,492.21 6.8900
400030892 PPBP, L.P. 24,093.57 6.7100
400030879 Wells Plaza, LLC 24,603.47 6.9400
639 Federated Housing Realty Corp. 26,572.49 8.5000
09-0001182 CPS PROPERTIES, LTD. 21,866.40 6.9600
09-0001153 The Denver Gardens Company, LLC 21,877.26 7.0100
09-0001184 Edwards Commercial Building LLC 21,678.79 6.9500
935 Jones Street Terrace Associates, LLC 22,649.40 7.6250
400031118 Rayo De Sol Apts., L.C. 20,755.14 6.7500
916 Norseman Development Corporation 23,253.66 7.3100
09-0001178 Rail Investments, Inc. 23,566.23 7.5500
400029266 Great Plains L.L.C. 28,673.13 6.9500
950 Bell Hotel Investors, LLC 26,688.03 8.6200
09-0001198 Vajya, L.C. 24,562.31 8.6000
09-0001172 Mayde Creek Emporium, Ltd. 20,607.92 7.3200
400031129 William L. and Mary Ellen Stewart 19,398.16 6.7200
I0066 Norwalk Realty, LLC 20,404.30 7.2200
400030873 Ole 2, LLC 22,739.63 6.7100
636 Professional Investors Security Fund VII 21,370.58 7.7500
09-0001176 Neema, Inc., dba Comfort Suites 23,226.80 7.2000
M0433 John A. Redmon 21,729.78 7.5600
925 FSF Bella Associates, LLC 19,371.41 7.0400
400029296 Crow-Perry Hall Retail Limited Partnership 19,138.21 6.9200
400030932 Windsor Mill Storage LLLP 19,979.87 6.9100
949 FH Distributors 21,149.21 7.7500
400030970 Scotts Valley Carbonero Creek Limited Partnership 19,690.32 5.7700
400030918 T & R Butler Limited Partnership 18,945.65 7.2400
M0553 Red Oaks Associates, L.P. 17,472.40 6.5500
610 Sutter House Associates, LLC 17,836.45 6.7500
400029298 21st-High Properties, L.P. 19,401.36 6.9800
R0020 Bamoza, L.L.C. 19,952.76 7.5000 9.5000 (2) 2.0000
929 Christopher G. Gistis, Trustee 21,866.73 7.5700
913 Roland Way, LLC 20,032.14 7.6300
400030917 Dana Cal-Tex, L.L.C. 19,445.58 7.4200
400030937 Stone Mountain Motel, Inc. 20,866.89 7.3500
400031119 Brewer Sunrise, L.L.C. 16,656.68 6.6300
400029276 Greenbriar Atrium, Inc. 16,750.26 7.0700
400029273 Cameron Court, LLC 16,682.96 7.0300
400029305 Acorn Self Storage LLC 17,941.52 7.1700
907 Tropical Inn, Inc. 21,223.25 8.2000
400030942 Industrial Boulevard, LLC 16,772.94 6.6500
400030971 Cielo Hills Apartments, LLC 14,944.24 6.2000
400030986 Broadway Crossing Center, Ltd. 14,005.75 5.7500
400029245 B.A.G. - Oak Lawn #170, LLC 15,790.35 6.8900
400030947 G-R, LLC 19,348.39 6.8400
573 Roy E. Nelson and Mabel E. Nelson Revocable Trust 17,735.79 7.5000
912 St. Augustine Park Inn, a Florida general partnership 18,502.73 7.6500
R0451 Wagner-Wilco Partnership 17,197.28 7.2700
09-0001159 Vishal Corporation 16,940.57 7.2200
09-0001155 The Denver Gardens Company, LLC 15,384.01 7.0100
937 Woodland Apartments, LLC 17,251.49 7.6250
621 St. Albans Realty, Inc. 16,810.23 7.3750
400029312 Goodcar, LLC 15,425.73 7.0800
09-0001158 BW Tyler, L.L.C. 16,818.98 7.5800
611 Tranquility Financial, LLC 15,103.04 7.2000
09-0001169 Denver Santa Fe, L.L.C. 15,930.11 7.2700
400029293 DBL Tucson, LLC 14,401.02 6.8400
09-0001181 Haisfield Investment Partnership, Ltd. 14,246.29 6.9600
09-0001177 Neema Inc.,dba Comfort Inn 17,916.62 7.9500
400030894 Lanere Holdings, LLC 13,453.47 6.6300
400031131 JM 6th Street Associates, LP 12,550.09 5.9700
09-0001156 Kit Associates, Ltd. 13,550.84 6.7000
502 Royal Gemini, LTD 15,689.96 7.6250
M0435 John A. Redmon 15,716.93 7.8100
938 Creekside Apartments, LLC 15,174.43 7.6250
09-0001183 2431-2461 Walnut Ridge, Ltd. 13,359.82 7.0400
591 O'Porto Holding Company, Ltd. 14,617.59 7.3750
613 Village Square Joint Venture 14,779.82 7.5000
900 Compass Pointe Apartments Partnership 14,494.12 7.4500
510 Dr. Jaroslaw Pikolycky 14,308.41 8.0000
O0521 Soaper Hotel Building, LLC 13,605.50 7.0000
902 Carriage House Apartments Partnership 14,074.76 7.3500
09-0001175 AFS Beltline, L.P. 13,155.22 7.4000
519 Jeffery Mertens and Kathy Mertens 13,448.08 7.6250
400030921 Vision Investments, Inc. 15,132.48 7.3500
400030976 Sabra Tower, Inc. 15,844.32 6.9000
09-0001108 230 East Adams Boulevard, LLC 14,579.10 8.5700
400030949 Canal Properties, LLC 11,567.28 6.6600
400030962 J-Baytown Central, LTD. 12,131.24 6.4800
400030955 Brighton Investments, L.L.C. 12,999.82 6.1000
606 Houston Marquee Apartments, L.L.C. 13,506.78 8.0000
400031117 Joseph J. D'Ovidio, as Trusteefor Cobble Hill Real 11,234.42 6.7900
905 BECO-Dorsey, LLC 12,621.28 7.4200
589 East Crosstimbers Plaza, L.P. 13,703.33 7.6250
627 Viking Development Company 12,651.76 7.7500
09-0001161 RSSV, L.L.C. 11,931.36 7.1200
09-0001190 Glenn Street Development, LLC 12,027.51 7.2500
09-0001194 Cady Industrial, L.L.C. 11,841.87 7.8000
527 Colonial Village Development, LLC 12,598.64 7.8750
09-0001143 Condado Partners, Ltd. 12,757.64 7.0200 9.0200 (1) 2.0000
569 Wayne Wampler and Dianne L. Wampler 12,001.22 7.5000
09-0001174 Hunter's Crossing, Ltd. 10,687.86 7.0400
09-0001185 Eagle Warehouse LLC 10,813.10 7.2000
594 72 & 82 Terrace Realty, Inc. 13,758.85 8.3750
09-0001149 Triad Equities II, LLC 12,601.19 6.3500
M0434 John A. Redmon 11,806.68 7.8100
524 Windsor Square Apartments, Inc. 11,911.44 7.8750
09-0001150 Paulsboro Equities, LLC 10,471.73 6.4100
09-0001195 Grand Prairie Woodlands, Ltd. 11,132.21 8.1200
400029277 Tech Plaza, LLC 10,009.78 7.0300
09-0001157 KNS International L.L.C. 11,960.37 7.2600
400029302 A & L Mountain, L.L.C. 10,515.72 6.9100
500 358 Realty Associates, LLC 9,979.54 7.0000
940 Dodeka Realty Corporation 10,597.75 7.3750
400030984 16000 Limited 12,863.37 6.7900
521 John Henry Ragland & Brigid R. Ragland 10,524.67 7.3750
400029244 InSite Cincinnati, L.L.C. 9,566.85 7.0900
400029198 110 Industrial Park, LLC 9,939.61 7.0500
585 Windsor Property Investments 10,805.43 8.0000
504 West 160 Realty Corp 10,805.43 8.0000
400030945 Middletown Park, LLC 9,062.89 6.2800
M0406 Garden Trails Apartments, L.L.C. 8,658.83 6.5700
400030929 Fifty-Two Accord Park Drive Realty Trust 9,344.93 6.6900
09-0001148 Carlisle Equities, LLC. 11,004.49 6.3500
614 Pinehill Plaza & Apartments, Inc. 10,531.55 8.1250
09-0001171 Sweetwater Hospitality, Inc. 9,563.08 7.3400
920 Radhe Inc. 11,123.30 8.1000
586 Dorian Court, Inc., a Pennsylvania corporation 10,219.51 8.1250
09-0001187 Lufkin Acquisitions, L.C. 8,540.07 6.8750
622 Professional Investors Security Fund XII, LP 8,556.23 7.1250
09-0001162 Kerr Lodging, L.P. 10,141.15 7.3800
09-0001192 ANH Shakti Corp. 9,318.85 7.6000
623 Professional Investors Security Fund XVI 8,273.26 7.1250
400030975 Bays-Fill, LLC 8,117.49 6.5200
09-0001151 Oaklyn Equities, LLC 10,144.57 6.3500
O0520 Salms Building, LLC 8,304.66 7.0000
515 Robert & Mary Skorniak, et al 11,124.15 7.5000
09-0001193 Shree, L.L.C. 10,956.83 7.9500
595 Visions in Faith, Inc. 8,893.31 8.1250
09-0001144 165E56, LLC 8,037.59 7.1200
09-0001131 Barbara Road Hidden Oaks No. 1, L.P. 7,194.85 6.7000
09-0001126 Pecan Plaza, Ltd. 7,646.40 7.5900
933 V.G.M. Realty Corporation 8,273.87 8.0000
400030899 Columbia Wheatridge Limited Partnership 6,887.23 6.8600
400030905 Columbia Colfax Limited Partnership 6,887.23 6.8600
535 Sycamore Realty Trust 7,930.95 7.7500
400030911 Columbia Canyon Lakes Limited Partnership 6,723.25 6.8600
605 BMK Enterprises, LLC 7,826.43 7.8750
608 RDK Realty, LLC 7,620.84 7.6250
400030906 Columbia Edgewater L.P. 6,624.86 6.8600
543 Centre Park Properties, L.P. 7,810.78 8.0000
400030889 1010 Mockingbird, Ltd., LP 6,505.94 6.7800
618 Hunter's Point Center, Ltd. 8,055.93 7.5000
602 RDB Building, LLC 7,389.91 7.5000
511 Delancey Sedgley Associates, L.P. 7,553.29 7.7500
532 The 012-015 Apts., LLC 7,471.41 7.6250
536 3044 Kingsbridge LLC 8,435.45 8.2500
558 Banyan Woods Properties, Incorporated 7,364.46 7.7500
551 Thomas P. Murray & James Murray 7,326.69 7.7500
400030898 Columbia Wauwatosa Limited Partnership 6,231.31 6.8600
578 SFT Family Trust 7,411.09 8.1250
592 J & B Taos Partners, General Partnership 7,729.85 8.6250
600 Texas Real Property Holdings, Inc. 8,009.42 8.2500
554 Fares Salame and Mary Rose Salame 7,448.35 8.5000
O0519 Newberry Wile Building, L.L.C. 6,361.01 7.0000
546 Rockaway Parkway, Inc., a New York Corporation 6,946.35 8.0000
400030904 Columbia Forest Hills Limited Partnership 5,739.36 6.8600
400030909 InSite Indy 5, L.L.C. 5,640.97 6.8600
601 Douglas Park Partners, L.P. 6,653.06 8.0000
609 Holiday Property Enterprises, L.P. 6,637.62 8.0000
501 Steve D, Loi Tan, and Tu Van Nguyen 6,708.99 8.1250
400030897 Columbia Tulsa Limited Partnership 5,575.38 6.8600
400030903 Columbia Flamingo Limited Partnership 5,575.38 6.8600
934 Equity Realty Group, Inc. 6,560.44 8.0000
549 Rodan Realty Corp. 6,916.18 8.6250
528 Mortgage Investment Corporation 6,552.97 8.1250
400030957 Sportstech Properties, L.L.C. 7,484.56 6.8600
553 5900 Balcones Office Building,LLC 6,375.20 8.0000
598 River Road Co. LTD 6,174.53 8.0000
604 370 South Harrison Associates, LLC 6,042.63 7.7500
508 Robert & Mary Skorniak 7,416.10 7.5000
635 Jersey Waldo Realty LLC 6,560.91 8.2500
400030908 Columbia Bay City Limited Partnership 4,985.04 6.8600
400030900 Columbia Indianapolis 4 Limited Partnership 4,919.45 6.8600
400030974 5340 North Federal Highway Association, Inc. 4,909.44 6.8400
M0436 John A. Redmon 5,694.54 7.8100
09-0001146 Shri Nathji, LLP 5,704.41 7.8300
550 Randolph Properties, Ltd. 5,976.16 8.3750
400030888 3354 Gilmer Road, Ltd. 5,810.24 6.9900
616 340 East O'Keefe, LLC 5,513.90 7.6250
945 Marie Varveris, Inc 5,335.42 7.3750
567 Thomas P. Murray 5,513.90 7.7500
518 Robert & Mary Skorniak 6,767.19 7.5000
537 Group I El Monte Properties, Ltd. 5,261.62 7.5000
576 Third Avenue Bronx Realty Associates 5,344.88 7.8750
904 Churchill Townhouses Partnership 5,031.91 7.3500
634 354 East 21st Street Realty Corporation 5,296.98 8.1250
542 John G. Miller, trustee of Lawndale Village 5,209.76 8.0000
509 Robert Hammett 5,378.54 8.3750
559 K & E Corporation 5,101.95 8.1250
568 Carlson Trust 4,909.64 7.7500
538 Golden Eagle Apartments LLC 5,140.69 8.2500
534 Chi-Kung Yu & Judy J. Yu 5,086.35 8.1250
939 Camelot Properties of Northeast Florida, Inc 4,947.83 7.8750
541 Khorrami Enterprises, Inc. 5,124.93 8.2500
641 Jane S. Guerin 5,046.08 8.2500
400030910 InSite Wind Gap, L.L.C. 4,197.93 6.8600
588 Dutch Street, Ltd. 5,012.00 8.3750
400030901 Columbia Kedzie Limited Partnership 4,099.54 6.8600
400030907 Columbia Elkhart I Limited Partnership 4,099.54 6.8600
565 Paul Baum and Rachel Baum 4,669.63 7.6250
577 Station Associates, L.P. 4,785.26 8.0000
I0162 Cumberland Airport Center Assoc. 4,507.85 7.5000
561 Station Associates, L.P. 4,708.08 8.0000
530 Prospect Square, LLC 4,672.95 7.8750
525 506 South Broadway, Inc. 5,359.60 8.6250
09-0001109 3533 Motor Ave, LLC 4,859.70 8.5700
615 Blount Property Management, Inc. 4,581.32 7.8750
529 Indram Family, LLC #1 5,138.29 9.2500
637 Mike Chen 4,618.28 8.1250
514 Robert Skorniak and Mary Skorniak 5,562.07 7.5000
612 Touraine Associates 4,323.10 7.5000
400030902 InSite Watertown L.L.C. 3,804.38 6.8600
579 Laurence Edwards 4,437.94 8.0000
596 M & W Investors LLC 4,431.05 8.1250
632 Ched Management Company 4,183.99 7.6250
540 South Jupiter, Ltd., a Texas LP 4,509.27 8.5000
522 The 012-015 Apts, LLC 4,146.63 7.6250
503 Gary W. Coy 4,336.48 8.2500
572 5600 Fernwood Avenue LLC 4,212.62 8.1250
936 Jersey Kennedy Realty LLC 4,441.39 8.2500
570 CDM Company, L.L.C 3,815.58 8.0000
587 Anthony Vasquez, Jr. 4,187.18 8.5000
</TABLE>
<TABLE>
<CAPTION>
Original
Original Original Remaining Maturity Amortization
Loan Number Interest Accrual Method Net Rate Balance Loan Term Loan Term Date Term
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
400029165 30 Month-Days / 360 Year-Days 7.1362 20,170,000 120 110 3/1/08 360
948 Actual Days / 360 Year-Days 7.6262 18,896,684 113 112 5/1/08 300
400029229 Actual Days / 360 Year-Days 6.8962 18,870,000 120 111 4/1/08 360
947 Actual Days / 360 Year-Days 7.7762 17,282,732 107 106 11/1/07 360
914 Actual Days / 360 Year-Days 7.8062 12,000,000 120 112 5/1/08 276
908 Actual Days / 360 Year-Days 7.2662 12,000,000 180 171 4/1/13 300
09-0001186 Actual Days / 360 Year-Days 7.1662 11,500,000 120 118 11/1/08 300
09-0001199 Actual Days / 360 Year-Days 8.1962 11,400,000 120 118 11/1/08 300
400029179 30 Month-Days / 360 Year-Days 7.2462 10,900,000 120 109 2/1/08 360
943 Actual Days / 360 Year-Days 7.0662 10,400,000 120 117 10/1/08 276
924 30 Month-Days / 360 Year-Days 6.7762 10,000,000 360 353 6/1/28 360
400029303 Actual Days / 360 Year-Days 6.8362 9,900,000 84 78 7/1/05 360
400031043 Actual Days / 360 Year-Days 6.3062 9,350,000 120 117 10/1/08 360
930 Actual Days / 360 Year-Days 6.6262 9,100,000 120 116 9/1/08 360
400029281 Actual Days / 360 Year-Days 6.4062 9,000,000 120 116 9/1/08 360
400029270 Actual Days / 360 Year-Days 6.3062 8,550,000 120 117 10/1/08 360
09-0001145 Actual Days / 360 Year-Days 6.5962 8,500,000 120 117 10/1/08 360
400030928 Actual Days / 360 Year-Days 6.4462 8,400,000 120 117 10/1/08 300
09-0001201 Actual Days / 360 Year-Days 8.1162 8,350,000 120 119 12/1/08 360
400029261 Actual Days / 360 Year-Days 6.8362 8,100,000 120 113 6/1/08 360
R0492 Actual Days / 360 Year-Days 7.1662 8,000,000 120 118 11/1/08 360
921 Actual Days / 360 Year-Days 7.2662 8,025,000 120 115 8/1/08 300
400030943 Actual Days / 360 Year-Days 6.7662 8,000,000 120 117 10/1/08 300
400031116 30 Month-Days / 360 Year-Days 6.7062 8,000,000 120 115 8/1/08 360
400029289 Actual Days / 360 Year-Days 7.1862 7,600,000 144 137 6/1/10 360
400029254 Actual Days / 360 Year-Days 6.8562 7,500,000 120 114 7/1/08 360
400031126 Actual Days / 360 Year-Days 6.7662 7,300,000 120 117 10/1/08 360
400029283 Actual Days / 360 Year-Days 6.8362 7,000,000 120 114 7/1/08 360
400030930 Actual Days / 360 Year-Days 7.0162 6,700,000 120 116 9/1/08 360
09-0001170 Actual Days / 360 Year-Days 6.7662 6,600,000 120 117 10/1/08 360
931 Actual Days / 360 Year-Days 6.9462 6,400,000 120 117 10/1/08 360
400030878 Actual Days / 360 Year-Days 6.8162 6,200,000 120 116 9/1/08 300
942 Actual Days / 360 Year-Days 7.3662 6,000,000 120 117 10/1/08 360
400030941 Actual Days / 360 Year-Days 5.7562 6,000,000 120 117 10/1/08 300
400029230 Actual Days / 360 Year-Days 7.3462 6,000,000 84 76 5/1/05 300
901 Actual Days / 360 Year-Days 7.3362 6,000,000 60 49 2/1/03 300
932 Actual Days / 360 Year-Days 6.9062 6,100,000 120 117 10/1/08 360
R0869 Actual Days / 360 Year-Days 7.6862 5,600,000 120 118 11/1/08 360
09-0001179 Actual Days / 360 Year-Days 7.2662 5,520,000 120 117 10/1/08 360
400031127 Actual Days / 360 Year-Days 6.7062 5,400,000 144 140 9/1/10 360
400031122 Actual Days / 360 Year-Days 6.6762 5,400,000 84 80 9/1/05 360
927 Actual Days / 360 Year-Days 7.5462 5,400,000 120 113 6/1/08 300
09-0001189 Actual Days / 360 Year-Days 6.6162 5,350,000 120 118 11/1/08 360
917 Actual Days / 360 Year-Days 6.8762 5,306,457 112 111 4/1/08 345
09-0001188 Actual Days / 360 Year-Days 7.0412 5,200,000 120 118 11/1/08 360
M0345 Actual Days / 360 Year-Days 6.4662 5,200,000 120 117 10/1/08 360
944 Actual Days / 360 Year-Days 6.7062 5,070,000 120 116 9/1/08 360
09-0001197 Actual Days / 360 Year-Days 7.8862 5,000,000 120 118 11/1/08 360
400030946 Actual Days / 360 Year-Days 6.4962 4,800,000 120 118 11/1/08 360
400030933 Actual Days / 360 Year-Days 6.7062 4,800,000 120 117 10/1/08 300
I0198 Actual Days / 360 Year-Days 6.9162 4,750,000 120 118 11/1/08 360
400029117 30 Month-Days / 360 Year-Days 7.2662 7,300,000 120 111 4/1/08 360
400029280 Actual Days / 360 Year-Days 7.1862 4,700,000 120 114 7/1/08 300
400029203 Actual Days / 360 Year-Days 6.9462 4,700,000 120 112 5/1/08 300
400030988 Actual Days / 360 Year-Days 6.5262 4,650,000 120 117 10/1/08 360
903 30 Month-Days / 360 Year-Days 7.2662 4,750,000 180 170 3/1/13 180
400029268 Actual Days / 360 Year-Days 7.0262 4,600,000 120 114 7/1/08 360
09-0001191 Actual Days / 360 Year-Days 7.1662 4,500,000 120 118 11/1/08 300
09-0001173 Actual Days / 360 Year-Days 6.5362 4,500,000 120 117 10/1/08 360
400029271 Actual Days / 360 Year-Days 6.5062 4,500,000 120 117 10/1/08 300
400030919 Actual Days / 360 Year-Days 6.7062 4,450,000 144 140 9/1/10 360
400030920 Actual Days / 360 Year-Days 7.1562 4,400,000 240 236 9/1/18 300
910 Actual Days / 360 Year-Days 7.6662 4,350,000 120 110 3/1/08 276
M0536 Actual Days / 360 Year-Days 6.4662 4,300,000 120 117 10/1/08 360
922 Actual Days / 360 Year-Days 7.4162 4,300,000 120 117 10/1/08 276
09-0001180 Actual Days / 360 Year-Days 7.1562 4,100,000 120 117 10/1/08 360
09-0001165 Actual Days / 360 Year-Days 6.7462 4,000,000 120 117 10/1/08 300
400030912 Actual Days / 360 Year-Days 7.0962 4,000,000 120 115 8/1/08 300
400029260 Actual Days / 360 Year-Days 6.9862 4,000,000 120 115 8/1/08 300
911 Actual Days / 360 Year-Days 7.1362 4,000,000 120 110 3/1/08 360
915 Actual Days / 360 Year-Days 6.8862 4,000,000 120 110 3/1/08 360
906 Actual Days / 360 Year-Days 7.7762 4,000,000 120 113 6/1/08 276
M0543 Actual Days / 360 Year-Days 6.4662 3,930,000 120 117 10/1/08 360
400029272 Actual Days / 360 Year-Days 6.5562 3,850,000 120 117 10/1/08 300
400031124 Actual Days / 360 Year-Days 6.6962 3,800,000 84 81 10/1/05 360
400030936 30 Month-Days / 360 Year-Days 6.8162 3,800,000 240 237 10/1/18 240
09-0001154 Actual Days / 360 Year-Days 6.9262 3,750,000 120 116 9/1/08 360
09-0001152 Actual Days / 360 Year-Days 6.9262 3,600,000 120 116 9/1/08 360
09-0001196 Actual Days / 360 Year-Days 7.6362 3,500,000 120 118 11/1/08 360
400030931 Actual Days / 360 Year-Days 6.8062 3,500,000 120 117 10/1/08 300
582 Actual Days / 360 Year-Days 7.6662 3,500,000 120 116 9/1/08 300
400029288 Actual Days / 360 Year-Days 6.8062 3,500,000 120 116 9/1/08 300
400030892 Actual Days / 360 Year-Days 6.6262 3,500,000 120 115 8/1/08 300
400030879 30 Month-Days / 360 Year-Days 6.8562 3,500,000 120 115 8/1/08 300
639 Actual Days / 360 Year-Days 8.4162 3,300,000 120 119 12/1/08 300
09-0001182 Actual Days / 360 Year-Days 6.8762 3,300,000 120 117 10/1/08 360
09-0001153 Actual Days / 360 Year-Days 6.9262 3,285,000 120 116 9/1/08 360
09-0001184 Actual Days / 360 Year-Days 6.8662 3,275,000 120 117 10/1/08 360
935 Actual Days / 360 Year-Days 7.5412 3,200,000 120 117 10/1/08 360
400031118 Actual Days / 360 Year-Days 6.6662 3,200,000 120 115 8/1/08 360
916 Actual Days / 360 Year-Days 7.2262 3,200,000 120 114 7/1/08 300
09-0001178 Actual Days / 360 Year-Days 7.4662 3,175,000 120 117 10/1/08 300
400029266 Actual Days / 360 Year-Days 6.8662 3,200,000 180 176 9/1/13 180
950 30 Month-Days / 360 Year-Days 8.5362 3,200,000 120 105 10/1/07 276
09-0001198 Actual Days / 360 Year-Days 8.5162 3,025,000 120 118 11/1/08 300
09-0001172 Actual Days / 360 Year-Days 7.2362 3,000,000 120 117 10/1/08 360
400031129 Actual Days / 360 Year-Days 6.6362 3,000,000 120 117 10/1/08 360
I0066 Actual Days / 360 Year-Days 7.0362 3,000,000 84 80 9/1/05 360
400030873 Actual Days / 360 Year-Days 6.6262 3,000,000 120 117 10/1/08 240
636 Actual Days / 360 Year-Days 7.6662 2,983,000 120 118 11/1/08 360
09-0001176 Actual Days / 360 Year-Days 7.1162 2,950,000 121 118 11/1/08 240
M0433 Actual Days / 360 Year-Days 7.4762 2,925,000 120 117 10/1/08 300
925 Actual Days / 360 Year-Days 6.9562 2,900,000 120 114 7/1/08 360
400029296 30 Month-Days / 360 Year-Days 6.8362 2,900,000 84 79 8/1/05 360
400030932 30 Month-Days / 360 Year-Days 6.8262 2,850,000 120 116 9/1/08 300
949 Actual Days / 360 Year-Days 7.6662 2,800,000 120 118 11/1/08 300
400030970 30 Month-Days / 360 Year-Days 5.6862 2,800,000 84 82 11/1/05 240
400030918 Actual Days / 360 Year-Days 7.1562 2,780,000 180 176 9/1/13 360
M0553 Actual Days / 360 Year-Days 6.4662 2,750,000 120 117 10/1/08 360
610 Actual Days / 360 Year-Days 6.6662 2,750,000 120 116 9/1/08 360
400029298 Actual Days / 360 Year-Days 6.8962 2,750,000 120 116 9/1/08 300
R0020 Actual Days / 360 Year-Days 7.4162 2,700,000 120 118 11/1/23 300
929 Actual Days / 360 Year-Days 7.4862 2,700,000 120 114 7/1/08 240
913 Actual Days / 360 Year-Days 7.5462 2,680,000 120 112 5/1/08 300
400030917 Actual Days / 360 Year-Days 7.3362 2,650,000 120 115 8/1/08 300
400030937 Actual Days / 360 Year-Days 7.2662 2,620,000 240 237 10/1/18 240
400031119 Actual Days / 360 Year-Days 6.5462 2,600,000 120 116 9/1/08 360
400029276 Actual Days / 360 Year-Days 6.9862 2,500,000 84 78 7/1/05 360
400029273 Actual Days / 360 Year-Days 6.9462 2,500,000 120 114 7/1/08 360
400029305 Actual Days / 360 Year-Days 7.0862 2,500,000 144 139 8/1/10 300
907 Actual Days / 360 Year-Days 8.1162 2,500,000 120 111 4/1/08 240
400030942 Actual Days / 360 Year-Days 6.5662 2,450,000 144 141 10/1/10 300
400030971 Actual Days / 360 Year-Days 6.1162 2,440,000 120 117 10/1/08 360
400030986 Actual Days / 360 Year-Days 5.6662 2,400,000 120 118 11/1/08 360
400029245 Actual Days / 360 Year-Days 6.8062 2,400,000 120 115 8/5/08 360
400030947 30 Month-Days / 360 Year-Days 6.7562 2,400,000 216 212 9/1/16 216
573 Actual Days / 360 Year-Days 7.4162 2,400,000 300 290 3/1/23 300
912 Actual Days / 360 Year-Days 7.5662 2,400,000 120 110 3/1/08 276
R0451 Actual Days / 360 Year-Days 7.1862 2,375,000 120 117 10/1/08 300
09-0001159 Actual Days / 360 Year-Days 7.1362 2,350,000 120 117 10/1/08 300
09-0001155 Actual Days / 360 Year-Days 6.9262 2,310,000 120 116 9/1/08 360
937 Actual Days / 360 Year-Days 7.5412 2,309,000 120 117 10/1/08 300
621 Actual Days / 360 Year-Days 7.2912 2,300,000 120 117 10/1/08 300
400029312 Actual Days / 360 Year-Days 6.9962 2,300,000 120 114 7/1/08 360
09-0001158 Actual Days / 360 Year-Days 7.4962 2,260,000 120 117 10/1/08 300
611 Actual Days / 360 Year-Days 7.1162 2,225,000 120 112 5/1/08 360
09-0001169 Actual Days / 360 Year-Days 7.1862 2,200,000 120 117 10/1/08 300
400029293 30 Month-Days / 360 Year-Days 6.7562 2,200,000 120 114 7/1/08 360
09-0001181 Actual Days / 360 Year-Days 6.8762 2,150,000 120 117 10/1/08 360
09-0001177 Actual Days / 360 Year-Days 7.8662 2,150,000 121 118 11/1/08 240
400030894 Actual Days / 360 Year-Days 6.5462 2,100,000 120 117 10/1/08 360
400031131 30 Month-Days / 360 Year-Days 5.8862 2,100,000 120 117 10/1/08 360
09-0001156 Actual Days / 360 Year-Days 6.6162 2,100,000 120 116 9/1/08 360
502 Actual Days / 360 Year-Days 7.5412 2,100,000 120 110 3/1/08 300
M0435 Actual Days / 360 Year-Days 7.7262 2,070,000 120 117 10/1/08 300
938 Actual Days / 360 Year-Days 7.5412 2,031,000 120 117 10/1/08 300
09-0001183 Actual Days / 360 Year-Days 6.9562 2,000,000 120 117 10/1/08 360
591 Actual Days / 360 Year-Days 7.2912 2,000,000 120 116 9/1/08 300
613 Actual Days / 360 Year-Days 7.4162 2,000,000 120 113 6/1/08 300
900 Actual Days / 360 Year-Days 7.3662 1,970,000 300 289 2/1/23 300
510 Actual Days / 360 Year-Days 7.9162 1,950,000 360 351 4/1/28 360
O0521 Actual Days / 360 Year-Days 6.9162 1,925,000 120 117 10/1/08 300
902 Actual Days / 360 Year-Days 7.2662 1,930,000 300 289 2/1/23 300
09-0001175 Actual Days / 360 Year-Days 7.3162 1,900,000 120 117 10/1/08 360
519 Actual Days / 360 Year-Days 7.5412 1,900,000 120 110 3/1/08 360
400030921 Actual Days / 360 Year-Days 7.2662 1,900,000 240 236 9/1/18 240
400030976 Actual Days / 360 Year-Days 6.8162 1,900,000 84 80 9/1/05 204
09-0001108 Actual Days / 360 Year-Days 8.4862 1,800,000 120 118 11/1/08 300
400030949 Actual Days / 360 Year-Days 6.5762 1,800,000 180 177 10/1/13 360
400030962 Actual Days / 360 Year-Days 6.3962 1,800,000 120 117 10/1/08 300
400030955 Actual Days / 360 Year-Days 6.0162 1,800,000 120 117 10/1/08 240
606 Actual Days / 360 Year-Days 7.9162 1,750,000 120 115 8/1/08 300
400031117 30 Month-Days / 360 Year-Days 6.7062 1,725,000 120 115 8/1/08 360
905 Actual Days / 360 Year-Days 7.3362 1,720,000 120 113 6/1/08 300
589 Actual Days / 360 Year-Days 7.5412 1,685,000 180 176 9/1/13 240
627 Actual Days / 360 Year-Days 7.6662 1,675,000 120 116 9/1/08 300
09-0001161 Actual Days / 360 Year-Days 7.0362 1,670,000 120 117 10/1/08 300
09-0001190 Actual Days / 360 Year-Days 7.1662 1,664,000 120 118 11/1/08 300
09-0001194 Actual Days / 360 Year-Days 7.7162 1,645,000 120 118 11/1/08 360
527 Actual Days / 360 Year-Days 7.7912 1,650,000 120 112 5/1/08 300
09-0001143 Actual Days / 360 Year-Days 6.9362 1,630,000 120 117 10/1/18 240
569 Actual Days / 360 Year-Days 7.4162 1,624,000 120 116 9/1/08 300
09-0001174 Actual Days / 360 Year-Days 6.9562 1,600,000 120 117 10/1/08 360
09-0001185 Actual Days / 360 Year-Days 7.1162 1,593,000 120 117 10/1/08 360
594 Actual Days / 360 Year-Days 8.2912 1,600,000 240 233 6/1/18 240
09-0001149 30 Month-Days / 360 Year-Days 6.2662 1,579,000 184 180 1/1/14 184
M0434 Actual Days / 360 Year-Days 7.7262 1,555,000 120 117 10/1/08 300
524 Actual Days / 360 Year-Days 7.7912 1,560,000 120 110 3/1/08 300
09-0001150 30 Month-Days / 360 Year-Days 6.3262 1,550,000 240 236 9/1/18 240
09-0001195 Actual Days / 360 Year-Days 8.0362 1,500,000 120 118 11/1/08 360
400029277 30 Month-Days / 360 Year-Days 6.9462 1,500,000 120 114 7/1/08 360
09-0001157 Actual Days / 360 Year-Days 7.1762 1,500,000 240 237 10/1/18 240
400029302 Actual Days / 360 Year-Days 6.8262 1,500,000 120 114 7/1/08 300
500 Actual Days / 360 Year-Days 6.9162 1,500,000 120 109 2/1/08 360
940 Actual Days / 360 Year-Days 7.2912 1,450,000 120 117 10/1/08 300
400030984 Actual Days / 360 Year-Days 6.7062 1,450,000 180 176 9/1/13 180
521 Actual Days / 360 Year-Days 7.2912 1,440,000 120 110 3/1/08 300
400029244 Actual Days / 360 Year-Days 7.0062 1,425,000 120 114 7/5/08 360
400029198 Actual Days / 360 Year-Days 6.9662 1,400,000 120 115 8/1/08 300
585 Actual Days / 360 Year-Days 7.9162 1,400,000 120 113 6/1/08 300
504 Actual Days / 360 Year-Days 7.9162 1,400,000 120 109 2/1/08 300
400030945 Actual Days / 360 Year-Days 6.1962 1,370,000 120 117 10/1/08 300
M0406 Actual Days / 360 Year-Days 6.4862 1,360,000 120 117 10/1/08 360
400030929 Actual Days / 360 Year-Days 6.6062 1,360,000 120 117 10/1/08 300
09-0001148 30 Month-Days / 360 Year-Days 6.2662 1,364,000 172 168 1/1/13 172
614 Actual Days / 360 Year-Days 8.0412 1,350,000 300 294 7/1/23 300
09-0001171 Actual Days / 360 Year-Days 7.2562 1,312,500 120 117 10/1/08 300
920 Actual Days / 360 Year-Days 8.0162 1,320,000 240 234 7/1/18 240
586 Actual Days / 360 Year-Days 8.0412 1,310,000 120 116 9/1/08 300
09-0001187 Actual Days / 360 Year-Days 6.7912 1,300,000 120 118 11/1/08 360
622 Actual Days / 360 Year-Days 7.0412 1,270,000 120 114 7/1/08 360
09-0001162 Actual Days / 360 Year-Days 7.2962 1,260,000 240 237 10/1/18 240
09-0001192 Actual Days / 360 Year-Days 7.5162 1,250,000 120 118 11/1/08 300
623 Actual Days / 360 Year-Days 7.0412 1,228,000 120 114 7/1/08 360
400030975 Actual Days / 360 Year-Days 6.4362 1,200,000 120 117 10/1/08 300
09-0001151 30 Month-Days / 360 Year-Days 6.2662 1,196,000 172 168 1/1/13 172
O0520 Actual Days / 360 Year-Days 6.9162 1,175,000 120 117 10/1/08 300
515 Actual Days / 360 Year-Days 7.4162 1,200,000 180 171 4/1/13 180
09-0001193 Actual Days / 360 Year-Days 7.8662 1,150,000 120 118 11/1/08 180
595 Actual Days / 360 Year-Days 8.0412 1,140,000 120 116 9/1/08 300
09-0001144 Actual Days / 360 Year-Days 7.0362 1,125,000 120 116 9/1/08 300
09-0001131 Actual Days / 360 Year-Days 6.6162 1,115,000 120 117 10/1/08 360
09-0001126 Actual Days / 360 Year-Days 7.5062 1,084,000 120 117 10/1/08 360
933 Actual Days / 360 Year-Days 7.9162 1,072,000 120 117 10/1/08 300
400030899 Actual Days / 360 Year-Days 6.7762 1,050,000 120 117 10/5/08 360
400030905 Actual Days / 360 Year-Days 6.7762 1,050,000 120 117 10/5/08 360
535 Actual Days / 360 Year-Days 7.6662 1,050,000 120 114 7/1/08 300
400030911 Actual Days / 360 Year-Days 6.7762 1,025,000 120 117 10/5/08 360
605 Actual Days / 360 Year-Days 7.7912 1,025,000 120 116 9/1/08 300
608 Actual Days / 360 Year-Days 7.5412 1,020,000 120 113 6/1/08 300
400030906 Actual Days / 360 Year-Days 6.7762 1,010,000 120 117 10/5/08 360
543 Actual Days / 360 Year-Days 7.9162 1,012,000 120 114 7/1/08 300
400030889 Actual Days / 360 Year-Days 6.6962 1,000,000 84 80 9/1/05 360
618 Actual Days / 360 Year-Days 7.4162 1,000,000 84 81 10/1/05 240
602 Actual Days / 360 Year-Days 7.4162 1,000,000 120 115 8/1/08 300
511 Actual Days / 360 Year-Days 7.6662 1,000,000 120 111 4/1/08 300
532 Actual Days / 360 Year-Days 7.5412 1,000,000 180 171 4/1/13 300
536 Actual Days / 360 Year-Days 8.1662 990,000 240 234 7/1/18 240
558 Actual Days / 360 Year-Days 7.6662 975,000 120 114 7/1/08 300
551 Actual Days / 360 Year-Days 7.6662 970,000 120 115 8/1/08 300
400030898 Actual Days / 360 Year-Days 6.7762 950,000 120 117 10/5/08 360
578 Actual Days / 360 Year-Days 8.0412 950,000 120 112 5/1/08 300
592 Actual Days / 360 Year-Days 8.5412 950,000 120 111 4/1/08 300
600 Actual Days / 360 Year-Days 8.1662 940,000 240 234 7/1/18 240
554 Actual Days / 360 Year-Days 8.4162 925,000 120 112 5/1/08 300
O0519 Actual Days / 360 Year-Days 6.9162 900,000 120 117 10/1/08 300
546 Actual Days / 360 Year-Days 7.9162 900,000 120 114 7/1/08 300
400030904 Actual Days / 360 Year-Days 6.7762 875,000 120 117 10/5/08 360
400030909 Actual Days / 360 Year-Days 6.7762 860,000 120 117 10/5/08 360
601 Actual Days / 360 Year-Days 7.9162 862,000 120 113 6/1/08 300
609 Actual Days / 360 Year-Days 7.9162 860,000 120 115 8/1/08 300
501 Actual Days / 360 Year-Days 8.0412 860,000 120 109 2/1/08 300
400030897 Actual Days / 360 Year-Days 6.7762 850,000 120 117 10/5/08 360
400030903 Actual Days / 360 Year-Days 6.7762 850,000 120 117 10/5/08 360
934 Actual Days / 360 Year-Days 7.9162 850,000 120 117 10/1/08 300
549 Actual Days / 360 Year-Days 8.5412 850,000 120 113 6/1/08 300
528 Actual Days / 360 Year-Days 8.0412 840,000 120 112 5/1/08 300
400030957 Actual Days / 360 Year-Days 6.7762 840,000 180 177 10/10/13 180
553 Actual Days / 360 Year-Days 7.9162 826,000 120 113 6/1/08 300
598 Actual Days / 360 Year-Days 7.9162 800,000 120 116 9/1/08 300
604 Actual Days / 360 Year-Days 7.6662 800,000 120 115 8/1/08 300
508 Actual Days / 360 Year-Days 7.4162 800,000 180 171 4/1/13 180
635 Actual Days / 360 Year-Days 8.1662 770,000 240 238 11/1/18 240
400030908 Actual Days / 360 Year-Days 6.7762 760,000 120 117 10/5/08 360
400030900 Actual Days / 360 Year-Days 6.7762 750,000 120 117 10/5/08 360
400030974 Actual Days / 360 Year-Days 6.7562 750,000 120 117 10/1/08 360
M0436 Actual Days / 360 Year-Days 7.7262 750,000 120 117 10/1/08 300
09-0001146 Actual Days / 360 Year-Days 7.7462 750,000 120 116 9/1/08 300
550 Actual Days / 360 Year-Days 8.2912 750,000 120 113 6/1/08 300
400030888 30 Month-Days / 360 Year-Days 6.9062 750,000 144 140 9/1/10 240
616 Actual Days / 360 Year-Days 7.5412 738,000 120 118 11/1/08 300
945 Actual Days / 360 Year-Days 7.2912 730,000 120 117 10/1/08 300
567 Actual Days / 360 Year-Days 7.6662 730,000 120 115 8/1/08 300
518 Actual Days / 360 Year-Days 7.4162 730,000 180 171 4/1/13 180
537 Actual Days / 360 Year-Days 7.4162 712,000 180 174 7/1/13 300
576 Actual Days / 360 Year-Days 7.7912 700,000 120 111 4/1/08 300
904 Actual Days / 360 Year-Days 7.2662 690,000 300 289 2/1/23 300
634 Actual Days / 360 Year-Days 8.0412 679,000 120 118 11/1/08 300
542 Actual Days / 360 Year-Days 7.9162 675,000 120 114 7/1/08 300
509 Actual Days / 360 Year-Days 8.2912 675,000 120 111 4/1/08 300
559 Actual Days / 360 Year-Days 8.0412 654,000 120 114 7/1/08 300
568 Actual Days / 360 Year-Days 7.6662 650,000 120 116 9/1/08 300
538 Actual Days / 360 Year-Days 8.1662 652,000 120 112 5/1/08 300
534 Actual Days / 360 Year-Days 8.0412 652,000 120 111 4/1/08 300
939 Actual Days / 360 Year-Days 7.7912 648,000 120 117 10/1/08 300
541 Actual Days / 360 Year-Days 8.1662 650,000 120 112 5/1/08 300
641 Actual Days / 360 Year-Days 8.1662 640,000 120 118 11/1/08 300
400030910 Actual Days / 360 Year-Days 6.7762 640,000 120 117 10/5/08 360
588 Actual Days / 360 Year-Days 8.2912 629,000 120 116 9/1/08 300
400030901 Actual Days / 360 Year-Days 6.7762 625,000 120 117 10/5/08 360
400030907 Actual Days / 360 Year-Days 6.7762 625,000 120 117 10/5/08 360
565 Actual Days / 360 Year-Days 7.5412 625,000 120 115 8/1/08 300
577 Actual Days / 360 Year-Days 7.9162 620,000 120 115 8/1/08 300
I0162 Actual Days / 360 Year-Days 7.4162 610,000 120 118 11/1/08 300
561 Actual Days / 360 Year-Days 7.9162 610,000 120 115 8/1/08 300
530 Actual Days / 360 Year-Days 7.7912 612,000 120 111 4/1/08 300
525 Actual Days / 360 Year-Days 8.5412 612,000 240 230 3/1/18 240
09-0001109 Actual Days / 360 Year-Days 8.4862 600,000 120 118 11/1/08 300
615 Actual Days / 360 Year-Days 7.7912 600,000 120 114 7/1/08 300
529 Actual Days / 360 Year-Days 9.1662 600,000 120 111 4/1/08 300
637 Actual Days / 360 Year-Days 8.0412 592,000 120 118 11/1/08 300
514 Actual Days / 360 Year-Days 7.4162 600,000 180 171 4/1/13 180
612 Actual Days / 360 Year-Days 7.4162 585,000 120 112 5/1/08 300
400030902 Actual Days / 360 Year-Days 6.7762 580,000 120 117 10/5/08 360
579 Actual Days / 360 Year-Days 7.9162 575,000 120 112 5/1/08 300
596 Actual Days / 360 Year-Days 8.0412 568,000 120 115 8/1/08 300
632 Actual Days / 360 Year-Days 7.5412 560,000 120 118 11/1/08 300
540 Actual Days / 360 Year-Days 8.4162 560,000 120 112 5/1/08 300
522 Actual Days / 360 Year-Days 7.5412 555,000 180 171 4/1/13 300
503 Actual Days / 360 Year-Days 8.1662 550,000 120 110 3/1/08 300
572 Actual Days / 360 Year-Days 8.0412 540,000 120 110 3/1/08 300
936 Actual Days / 360 Year-Days 8.1662 521,250 240 237 10/1/18 240
570 Actual Days / 360 Year-Days 7.9162 520,000 120 115 8/1/08 360
587 Actual Days / 360 Year-Days 8.4162 520,000 120 114 7/1/08 300
</TABLE>
<TABLE>
<CAPTION>
Number of
Remaining Properties Anticipated
Amortization Cut-off Date Cut-off Servicing Securing Repayment
Loan Number Term Balance Date LTV Fee Loan Date Seller
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
400029165 350 20,007,358.87 74 0.0838 1 Amresco Capital
948 299 18,879,906.52 64 0.0838 1 DFC (Aries)
400029229 351 18,745,565.72 78 0.0838 1 Amresco Capital
947 359 17,274,575.57 72 0.0838 1 DFC (Secore)
914 268 11,886,833.18 59 0.0838 3 DFC
908 291 11,883,226.97 74 0.0838 1 DFC (Aries)
09-0001186 298 11,474,943.55 58 0.0838 1 Archon Financial
09-0001199 298 11,379,636.41 76 0.0838 1 Archon Financial
400029179 349 10,805,080.09 74 0.0838 1 Amresco Capital
943 273 10,359,122.48 70 0.0838 1 DFC (Aries)
924 353 9,939,996.66 76 0.0838 1 DRE
400029303 354 9,857,539.55 78 0.0838 1 Amresco Capital
400031043 357 9,327,291.47 65 0.0838 1 Amresco Capital
930 356 9,071,553.77 80 0.0838 1 DRE
400029281 356 8,970,383.68 71 0.0838 1 Amresco Capital
400029270 357 8,529,234.43 74 0.0838 1 Amresco Capital
09-0001145 357 8,480,787.73 80 0.0838 1 Archon Financial
400030928 297 8,369,382.68 75 0.0838 1 Amresco Capital
09-0001201 359 8,346,522.79 67 0.0838 1 Archon Financial
400029261 359 8,094,811.99 80 0.0838 1 Amresco Capital
R0492 358 7,989,090.61 70 0.0838 1 Central Park Capital
921 295 7,982,537.19 75 0.0838 1 DFC (Aries)
400030943 297 7,972,547.41 69 0.0838 1 Amresco Capital
400031116 355 7,965,440.75 79 0.0838 1 Amresco Capital
400029289 353 7,564,133.13 79 0.0838 1 Amresco Capital
400029254 354 7,467,998.00 73 0.0838 1 Amresco Capital
400031126 357 7,284,196.87 79 0.0838 1 Amresco Capital
400029283 354 6,969,977.44 75 0.0838 1 Amresco Capital
400030930 356 6,680,924.65 72 0.0838 1 Amresco Capital
09-0001170 357 6,585,712.22 75 0.0838 1 Archon Financial
931 357 6,386,775.47 79 0.0838 1 DRE
400030878 296 6,171,012.95 70 0.0838 1 Amresco Capital
942 357 5,988,920.34 75 0.0838 1 DFC (Aries)
400030941 297 5,975,203.50 39 0.0838 1 Amresco Capital
400029230 292 5,949,762.04 73 0.0838 1 Amresco Capital
901 289 5,926,346.07 78 0.0838 1 DFC (Secore)
932 357 5,884,978.41 75 0.0838 1 DRE
R0869 358 5,593,309.31 69 0.0838 1 Central Park Capital
09-0001179 357 5,508,303.82 80 0.0838 1 Archon Financial
400031127 356 5,383,436.05 79 0.0838 1 Amresco Capital
400031122 356 5,383,317.91 75 0.0838 1 Amresco Capital
927 293 5,361,632.03 71 0.0838 1 DRE
09-0001189 358 5,341,665.78 81 0.0838 1 Archon Financial
917 344 5,302,631.89 64 0.0838 1 DRE
09-0001188 358 5,192,686.93 79 0.0838 1 Archon Financial
M0345 357 5,187,858.55 76 0.0838 1 Central Park Capital
944 356 5,054,448.29 80 0.0838 1 DRE
09-0001197 358 4,994,333.00 62 0.0838 1 Archon Financial
400030946 358 4,792,308.65 80 0.0838 1 Amresco Capital
400030933 297 4,783,339.35 74 0.0838 1 Amresco Capital
I0198 358 4,743,113.07 74 0.0838 3 Central Park Capital
400029117 351 4,687,638.56 60 0.0838 1 Amresco Capital
400029280 294 4,669,992.04 74 0.0838 1 Amresco Capital
400029203 292 4,657,515.22 66 0.0838 1 Amresco Capital
400030988 357 4,639,303.71 75 0.0838 1 Amresco Capital
903 170 4,600,573.34 72 0.0838 1 DFC (Aries)
400029268 354 4,581,220.74 58 0.0838 1 Amresco Capital
09-0001191 298 4,490,195.30 79 0.0838 1 Archon Financial
09-0001173 357 4,489,674.59 80 0.0838 1 Archon Financial
400029271 297 4,483,780.61 70 0.0838 1 Amresco Capital
400030919 356 4,436,350.07 78 0.0838 1 Amresco Capital
400030920 296 4,380,672.43 71 0.0838 1 Amresco Capital
910 266 4,296,853.10 68 0.0838 1 DFC (Aries)
M0536 357 4,289,959.96 76 0.0838 1 Central Park Capital
922 273 4,284,096.22 68 0.0838 1 DFC (Sutter)
09-0001180 357 4,091,985.58 65 0.0838 1 Archon Financial
09-0001165 297 3,986,221.31 74 0.0838 1 Archon Financial
400030912 295 3,978,134.01 64 0.0838 1 Amresco Capital
400029260 295 3,977,672.99 66 0.0838 1 Amresco Capital
911 350 3,972,676.67 74 0.0838 1 DRE
915 350 3,970,896.58 58 0.0838 1 DRE
906 269 3,966,586.63 70 0.0838 1 DRE
M0543 357 3,920,823.87 80 0.0838 1 Central Park Capital
400029272 297 3,836,252.88 67 0.0838 1 Amresco Capital
400031124 357 3,791,625.47 78 0.0838 4 Amresco Capital
400030936 237 3,777,721.28 74 0.0838 1 Amresco Capital
09-0001154 356 3,739,087.61 75 0.0838 1 Archon Financial
09-0001152 356 3,589,524.13 75 0.0838 1 Archon Financial
09-0001196 358 3,495,763.55 71 0.0838 1 Archon Financial
400030931 297 3,488,080.87 73 0.0838 1 Amresco Capital
582 296 3,486,035.03 74 0.0838 2 DRE
400029288 296 3,483,606.62 67 0.0838 1 Amresco Capital
400030892 295 3,479,106.37 58 0.0838 1 Amresco Capital
400030879 295 3,477,937.26 72 0.0838 1 Amresco Capital
639 299 3,297,581.68 72 0.0838 1 DRE
09-0001182 357 3,293,055.76 73 0.0838 1 Archon Financial
09-0001153 356 3,275,440.75 74 0.0838 1 Archon Financial
09-0001184 357 3,268,090.50 73 0.0838 1 Archon Financial
935 357 3,194,370.91 71 0.0838 1 DFC (Sutter)
400031118 355 3,187,886.05 80 0.0838 1 Amresco Capital
916 294 3,179,728.53 76 0.0838 1 DRE
09-0001178 297 3,165,500.30 65 0.0838 1 Archon Financial
400029266 176 3,160,322.06 72 0.0838 1 Amresco Capital
950 261 3,141,598.99 61 0.0838 1 DFC (Aries)
09-0001198 298 3,019,935.00 63 0.0838 1 Archon Financial
09-0001172 357 2,994,260.56 71 0.0838 1 Archon Financial
400031129 357 2,993,287.22 77 0.0838 1 Amresco Capital
I0066 356 2,991,706.28 75 0.1838 1 Central Park Capital
400030873 237 2,983,128.34 70 0.0838 1 Amresco Capital
636 358 2,979,417.38 65 0.0838 1 DFC (Sutter)
09-0001176 237 2,934,504.92 53 0.0838 1 Archon Financial
M0433 297 2,916,265.62 80 0.0838 1 Central Park Capital
925 354 2,887,944.24 78 0.0838 1 DRE
400029296 355 2,887,785.55 65 0.0838 1 Amresco Capital
400030932 296 2,835,601.75 66 0.0838 1 Amresco Capital
949 298 2,794,450.56 58 0.0838 1 DRE
400030970 238 2,787,516.08 73 0.0838 1 Amresco Capital
400030918 356 2,772,352.39 79 0.0838 1 Amresco Capital
M0553 357 2,743,579.02 80 0.0838 1 Central Park Capital
610 356 2,741,484.37 70 0.0838 1 DFC
400029298 296 2,737,328.63 74 0.0838 1 Amresco Capital
R0020 298 2,694,387.10 56 0.0838 1 11/1/08 Central Park Capital
929 234 2,672,835.53 63 0.0838 1 DRE
913 292 2,658,422.20 74 0.0838 1 DFC (Sutter)
400030917 295 2,636,166.41 79 0.0838 1 Amresco Capital
400030937 237 2,606,527.64 69 0.0838 1 Amresco Capital
400031119 356 2,591,718.39 66 0.0838 1 Amresco Capital
400029276 354 2,489,686.38 73 0.0838 1 Amresco Capital
400029273 354 2,489,578.30 74 0.0838 1 Amresco Capital
400029305 295 2,486,307.74 67 0.0838 1 Amresco Capital
907 231 2,464,604.13 63 0.0838 1 DFC (Aries)
400030942 297 2,441,268.27 76 0.0838 1 Amresco Capital
400030971 357 2,433,795.05 80 0.0838 1 Amresco Capital
400030986 358 2,395,359.43 80 0.0838 1 Amresco Capital
400029245 355 2,391,224.01 78 0.0838 1 Amresco Capital
400030947 212 2,377,131.85 73 0.0838 1 Amresco Capital
573 290 2,374,931.23 49 0.0838 1 DFC (Sutter)
912 266 2,370,170.13 63 0.0838 1 DFC (Aries)
R0451 297 2,367,486.66 72 0.0838 1 Central Park Capital
09-0001159 297 2,342,492.39 68 0.0838 1 Archon Financial
09-0001155 356 2,303,277.95 58 0.0838 1 Archon Financial
937 297 2,302,194.93 71 0.0838 1 DFC (Sutter)
621 297 2,292,873.31 74 0.0838 1 DRE
400029312 354 2,290,536.25 75 0.0838 1 Amresco Capital
09-0001158 297 2,253,278.53 69 0.0838 1 Archon Financial
611 352 2,212,946.08 74 0.0838 1 DFC (Aries)
09-0001169 297 2,193,040.27 73 0.0838 1 Archon Financial
400029293 354 2,188,673.53 72 0.0838 1 Amresco Capital
09-0001181 357 2,145,475.73 67 0.0838 1 Archon Financial
09-0001177 237 2,139,862.60 49 0.0838 1 Archon Financial
400030894 357 2,095,193.53 79 0.0838 1 Amresco Capital
400031131 357 2,093,660.80 70 0.0838 1 Amresco Capital
09-0001156 356 2,093,419.99 79 0.0838 1 Archon Financial
502 290 2,078,589.52 76 0.0838 1 DRE
M0435 297 2,064,125.17 79 0.0838 1 Central Park Capital
938 297 2,025,014.27 72 0.0838 1 DFC (Sutter)
09-0001183 357 1,995,878.12 75 0.0838 1 Archon Financial
591 296 1,991,432.85 64 0.0838 1 DRE
613 293 1,985,428.70 43 0.0838 1 DRE
900 289 1,945,944.11 66 0.0838 1 DFC (Aries)
510 351 1,940,119.15 73 0.0838 1 DFC (Wingate)
O0521 297 1,918,581.47 80 0.0838 1 Central Park Capital
902 289 1,906,015.41 74 0.0838 1 DFC (Aries)
09-0001175 357 1,896,443.10 76 0.0838 1 Archon Financial
519 350 1,888,326.45 79 0.0838 4 DRE
400030921 236 1,886,668.92 64 0.0838 1 Amresco Capital
400030976 200 1,880,881.16 78 0.0838 1 Amresco Capital
09-0001108 298 1,796,967.58 62 0.0838 1 Archon Financial
400030949 357 1,795,911.03 69 0.0838 1 Amresco Capital
400030962 297 1,793,377.85 75 0.0838 1 Amresco Capital
400030955 237 1,789,003.58 64 0.0838 1 Amresco Capital
606 295 1,741,856.07 70 0.0838 1 DRE
400031117 355 1,717,547.78 74 0.0838 1 Amresco Capital
905 293 1,707,275.23 60 0.0838 1 DFC (Aries)
589 236 1,673,614.89 67 0.0838 1 DRE
627 296 1,668,316.76 73 0.0838 1 DRE
09-0001161 297 1,664,559.63 71 0.0838 1 Archon Financial
09-0001190 298 1,660,374.43 80 0.0838 1 Archon Financial
09-0001194 358 1,643,049.96 66 0.0838 1 Archon Financial
527 292 1,637,348.21 71 0.0838 1 DRE
09-0001143 237 1,620,915.15 68 0.0838 1 10/1/08 Archon Financial
569 296 1,617,204.84 76 0.0838 1 DRE
09-0001174 357 1,596,702.49 69 0.0838 1 Archon Financial
09-0001185 357 1,589,852.66 75 0.0838 1 Archon Financial
594 233 1,582,980.63 60 0.0838 1 DRE
09-0001149 180 1,561,882.13 90 0.0838 1 Archon Financial
M0434 297 1,550,586.79 78 0.0838 1 Central Park Capital
524 290 1,544,857.49 74 0.0838 1 DFC (Wingate)
09-0001150 236 1,541,160.90 96 0.0838 1 Archon Financial
09-0001195 358 1,498,367.05 70 0.0838 1 Archon Financial
400029277 354 1,492,558.08 71 0.0838 1 Amresco Capital
09-0001157 237 1,491,898.98 71 0.0838 1 Archon Financial
400029302 294 1,489,734.31 69 0.0838 1 Amresco Capital
500 349 1,487,244.01 71 0.0838 1 DRE
940 297 1,445,507.10 72 0.0838 1 DRE
400030984 176 1,431,752.67 61 0.0838 1 Amresco Capital
521 290 1,424,593.62 66 0.0838 1 DFC (ITLA)
400029244 354 1,419,151.91 79 0.0838 1 Amresco Capital
400029198 295 1,392,155.99 65 0.0838 1 Amresco Capital
585 293 1,390,750.49 70 0.0838 1 DFC (ITLA)
504 289 1,384,503.94 63 0.0838 1 DRE
400030945 297 1,364,770.42 68 0.0838 1 Amresco Capital
M0406 357 1,356,840.28 80 0.0838 1 Central Park Capital
400030929 297 1,355,189.35 71 0.0838 1 Amresco Capital
09-0001148 168 1,348,732.72 91 0.0838 1 Archon Financial
614 294 1,342,751.11 74 0.0838 1 DRE
09-0001171 297 1,308,404.83 75 0.0838 1 Archon Financial
920 234 1,307,700.21 74 0.0838 1 DREFC
586 296 1,305,140.22 69 0.0838 1 DRE
09-0001187 358 1,298,057.49 62 0.0838 3 Archon Financial
622 354 1,264,835.66 63 0.0838 1 DFC (Sutter)
09-0001162 237 1,253,298.18 72 0.0838 1 Archon Financial
09-0001192 298 1,247,450.35 67 0.0838 1 Archon Financial
623 354 1,223,006.50 61 0.0838 1 DFC (Sutter)
400030975 297 1,195,617.93 68 0.0838 1 Amresco Capital
09-0001151 168 1,180,615.47 84 0.0838 1 Archon Financial
O0520 297 1,171,082.19 78 0.0838 1 Central Park Capital
515 171 1,167,817.13 39 0.0838 1 DFC (ITLA)
09-0001193 178 1,143,554.95 64 0.0838 1 Archon Financial
595 296 1,135,770.89 70 0.0838 1 DRE
09-0001144 296 1,119,947.55 75 0.0838 1 Archon Financial
09-0001131 357 1,112,492.46 79 0.0838 1 Archon Financial
09-0001126 357 1,082,074.38 68 0.0838 1 Archon Financial
933 297 1,069,074.98 75 0.0838 1 DRE
400030899 357 1,047,732.77 78 0.0838 1 Amresco Capital
400030905 357 1,047,732.77 78 0.0838 1 Amresco Capital
535 294 1,043,907.88 67 0.0838 1 DFC (ITLA)
400030911 357 1,022,786.74 76 0.0838 1 Amresco Capital
605 296 1,021,007.50 74 0.0838 1 DRE
608 293 1,012,745.68 74 0.0838 1 DFC (Secore)
400030906 357 1,007,819.13 78 0.0838 1 Amresco Capital
543 294 1,006,422.33 75 0.0838 1 DRE
400030889 356 996,925.30 82 0.0838 1 Amresco Capital
618 237 994,966.85 59 0.0838 1 DRE
602 295 994,860.32 62 0.0838 1 DRE
511 291 990,983.81 71 0.0838 1 DRE
532 291 990,764.11 73 0.0838 1 DFC (ITLA)
536 234 980,976.99 70 0.0838 1 DFC
558 294 969,342.99 75 0.0838 1 DFC (ITLA)
551 295 965,253.78 62 0.0838 1 DRE
400030898 357 947,948.67 74 0.0838 1 Amresco Capital
578 292 943,076.72 52 0.0838 1 DFC (ITLA)
592 291 942,810.76 63 0.0838 1 DRE
600 234 931,432.67 69 0.0838 1 DFC (Secore)
554 292 918,766.69 74 0.0838 1 DRE
O0519 297 896,999.14 64 0.0838 1 Central Park Capital
546 294 895,039.58 69 0.0838 1 DFC (Parmann)
400030904 357 873,110.63 75 0.0838 1 Amresco Capital
400030909 357 858,143.03 78 0.0838 1 Amresco Capital
601 293 856,304.94 74 0.0838 1 DFC
609 295 855,997.82 67 0.0838 1 DRE
501 289 850,695.11 74 0.0838 1 DFC (Wingate)
400030897 357 848,164.62 77 0.0838 1 Amresco Capital
400030903 357 848,164.62 78 0.0838 1 Amresco Capital
934 297 847,680.72 69 0.0838 1 DRE
549 293 845,057.72 68 0.0838 1 DRE
528 292 833,878.30 73 0.0838 1 DFC (Aries)
400030957 177 832,227.20 72 0.0838 1 Amresco Capital
553 293 820,542.82 55 0.0838 1 DRE
598 296 796,958.63 66 0.0838 1 DRE
604 295 796,085.60 72 0.0838 1 DRE
508 171 778,544.76 31 0.0838 1 DFC (ITLA)
635 238 767,633.14 72 0.0838 1 DRE
400030908 357 758,358.96 76 0.0838 1 Amresco Capital
400030900 357 748,380.55 76 0.0838 1 Amresco Capital
400030974 357 748,372.23 60 0.0838 1 Amresco Capital
M0436 297 747,871.44 79 0.0838 1 Central Park Capital
09-0001146 296 747,053.20 75 0.0838 1 Archon Financial
550 293 745,406.92 75 0.0838 1 DRE
400030888 236 744,183.46 78 0.0838 1 Amresco Capital
616 298 736,501.85 65 0.0838 1 DFC (Sutter)
945 297 727,738.06 66 0.0838 1 DRE
567 295 726,428.12 69 0.0838 1 DRE
518 171 710,422.11 36 0.0838 1 DFC (ITLA)
537 294 707,655.82 74 0.0838 1 DRE
576 291 693,840.21 73 0.0838 1 DRE
904 289 681,425.19 79 0.0838 1 DFC (Aries)
634 298 677,749.19 70 0.0838 1 DFC (Parmann)
542 294 671,279.70 73 0.0838 1 DFC (Sutter)
509 291 669,623.09 70 0.0838 1 DRE
559 294 650,488.34 65 0.0838 1 DRE
568 296 647,406.50 65 0.0838 1 DRE
538 292 647,369.58 72 0.0838 1 DRE
534 291 646,538.60 74 0.0838 1 DRE
939 297 646,185.39 72 0.0838 1 DRE
541 292 645,383.71 72 0.0838 1 DRE
641 298 638,849.92 71 0.0838 1 DRE
400030910 357 638,618.07 79 0.0838 1 Amresco Capital
588 296 626,779.57 74 0.0838 1 DRE
400030901 357 623,650.46 76 0.0838 1 Amresco Capital
400030907 357 623,650.46 77 0.0838 1 Amresco Capital
565 295 621,865.38 62 0.0838 1 DRE
577 295 617,114.72 69 0.0838 1 DRE
I0162 298 608,731.89 73 0.0838 1 Central Park Capital
561 295 607,161.24 69 0.0838 1 DRE
530 291 606,614.60 61 0.0838 1 DFC (Progress)
525 230 602,977.56 67 0.0838 1 DFC (Wingate)
09-0001109 298 598,989.19 18 0.0838 1 Archon Financial
615 294 596,606.60 75 0.0838 1 DFC (Sutter)
529 291 596,025.33 69 0.0838 1 DRE
637 298 590,909.45 75 0.0838 1 DRE
514 171 583,908.62 42 0.0838 1 DFC (ITLA)
612 292 580,168.15 36 0.0838 1 DFC (Wingate)
400030902 357 578,747.61 78 0.0838 1 Amresco Capital
579 292 570,701.14 69 0.0838 1 DRE
596 295 565,423.14 74 0.0838 1 DRE
632 298 558,863.19 66 0.0838 1 DRE
540 292 556,226.33 73 0.0838 1 DRE
522 291 549,874.09 73 0.0838 1 DFC (ITLA)
503 290 545,049.71 68 0.0838 1 DFC (Wingate)
572 290 535,014.54 74 0.0838 1 DFC (ITLA)
936 237 518,899.07 71 0.0838 1 DRE
570 355 518,582.94 74 0.0838 1 DRE
587 294 517,422.74 66 0.0838 1 DRE
</TABLE>
Footnotes:
(1) 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%.
(2) Revised Rate shall be the greater of (a) initial interest rate plus 2% or
(b) the then current Treasury Rate plus 2%. 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 1999-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 January 10, 1999
(the "Pooling and Servicing Agreement"), by and among GS Mortgage Securities
Corporation II, as Seller, Goldman Sachs Mortgage Company, as a Responsible
Party, AMRESCO Capital Limited, Inc., as a Responsible Party, Daiwa Finance
Corp., as a Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible
Party, GMAC Commercial Mortgage Corporation, as Master Servicer, Lennar
Partners, Inc., as 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 __________], 1999.
[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 ____________, 1999.
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 1999-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-GS99-C1
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Attention: Rolf Edwards
Jay Strauss
Re: Transfer of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1999-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 January 10, 1999
(the "Pooling and Servicing Agreement"), by and among GS Mortgage Securities
Corporation II, as Seller, Goldman Sachs Mortgage Company, as a Responsible
Party, AMRESCO Capital Limited, Inc., as a Responsible Party, Daiwa Finance
Corp., as a Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible
Party, GMAC Commercial Mortgage Corporation, as Master Servicer, Lennar
Partners, Inc., as Special Servicer, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent):
1. [For Institutional Accredited Investors only (Class F, Class G, Class H
or Class J 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:
- ----------
* Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b).
<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-GS99-C1
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Attention: Rolf Edwards
Jay Strauss
Re: GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1999-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
1999-C1, Class [_], CUSIP No. [____] (the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement dated as of January 10, 1999 (the "Pooling
and Servicing Agreement"), by and among GS Mortgage Securities Corporation II,
as Seller, Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO
Capital Limited, Inc., as a Responsible Party, Daiwa Finance Corp., as a
Responsible Party, Daiwa Real Estate Finance Corp., as a Responsible Party, GMAC
Commercial Mortgage Corporation, as Master Servicer, Lennar Partners, Inc., as
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 1999-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 1999-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 January 10, 1999 (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, AMRESCO Capital Limited, Inc.,
as a Responsible Party, Daiwa Finance Corp., as a Responsible Party, Daiwa Real
Estate Finance Corp., as a Responsible Party, GMAC Commercial Mortgage
Corporation, as Master Servicer and Lennar Partners, Inc., as 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) [WITH RESPECT TO THE CLASS F, CLASS G, CLASS H AND
CLASS J CERTIFICATES,] PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 (IF AVAILABLE), (3) [WITH RESPECT TO THE CLASS F,
CLASS G, CLASS H AND CLASS J CERTIFICATES,] IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, OR (4) [WITH
RESPECT TO THE CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES,] 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, 1999-C1
SUMMARY REPORT
- --------------------------------------------------------------------------------
GMAC # PROPERTY:
SUB-SERVICER:
SUB-SERVICER NUMBER: INTEREST RATE:
P&I: QUARTER ENDED:
CURRENT PRINCIPAL BALANCE:
OCCUPANCY: VACANCY:
- --------------------------------------------------------------------------------
INCOME QUARTER/YEAR ENDED QUARTER/YEAR ENDED
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
----------------------------------------------------------------------------
COMMENTS:
----------------------------------------------------------------------------
This summary was printed on:
<PAGE>
EXHIBIT J
FORM OF MONTHLY DISTRIBUTION STATEMENT
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
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.lnbabs.com
LaSalle Bulletin Board (714) 282-3990
LaSalle ASAP Fax System (312) 904-2200
ASAP #:
Monthly Data File Name:
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
<TABLE>
<CAPTION>
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Value(1) Balance Payment Adj. or Loss Amortization Balance Payment Adjustment Rate (2)
CUSIP Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next Rate (3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
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>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Other Related 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>
<CAPTION>
Beginning Ending Gross W/Avg Months Prepayment Disposition
Loan Count Loan Count Servicing Fees to Maturity Penalties Fees
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<CAPTION>
Current Cumulative
Unpaid Unpaid
Class Interest Interest
--------------------------------------------------------
<S> <C> <C>
--------------------------------------------------------
Total
--------------------------------------------------------
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Other Related Information
- --------------------------------------------------------------------------------
P&I Advances made by: Beginning Current Ending
Unreimbursed Period Reimbursed Unreimbursed
- --------------------------------------------------------------------------------
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
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Other Related Information
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
1
2
3
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
REO Property Included in the Trust
Most Aggregate Aggregare Portion
Recent Amount Amount Included in
Loan Appraisal of Net of Other Available
Number Valuation Income Revenues Funds
- --------------------------------------------------------------------------------
1
2
3
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Other Related Information
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Appraisal Reduction Amounts
Loan Curent Total
Number Period Reduction
- --------------------------------------------------------------------------------
1
2
3
- --------------------------------------------------------------------------------
Totals 0.0
- --------------------------------------------------------------------------------
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
<TABLE>
<CAPTION>
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/Bankruptcy
Date # Balance # Balance # Balance # Balance
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
<CAPTION>
Distribution REO Modifications Prepayments Curr Weighted Avg.
Date # Balance # Balance # Balance Coupon Remit
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
</TABLE>
Note: Foreclosure and REO Totals are Included in the Appropriate
Delinquency Aging Category
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Delinquent Loan Detail
<TABLE>
<CAPTION>
Paid Outstanding Out. Property Special
Disclosure Doc Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
A. P&I Advance - Loan in Grace Period
B. P&I Advance - Late Payment but (less than) one month delinq
1. P&I Advance - Loan delinquent 1 month
2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or more
4. Matured Balloon/Assumed Scheduled Payment
** Outstanding P&I Advances include the current period P&I Advance
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Pool Total
Distribution of Principal Balances
- -------------------------------------------------------------------------------
(2) Current Scheduled Number (2) Scheduled Based on
Balances of Loans Balance Balance
- -------------------------------------------------------------------------------
$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
$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
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
- -------------------------------------------------------------------------------
Total 0 0 0.00%
- -------------------------------------------------------------------------------
Average Scheduled Balance is 0
Maximum Scheduled Balance is 0
Minimum Scheduled Balance is 0
Distribution of Property Types
- -------------------------------------------------------------------------------
Number (2) Scheduled Based on
Property Types of Loans Balance Balance
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Total 0 0 0.00%
- -------------------------------------------------------------------------------
Distribution of Mortgage Interest Rates
- -------------------------------------------------------------------------------
Current Mortgage Number (2) Scheduled Based on
Interest Rate of Loans Balance Balance
- -------------------------------------------------------------------------------
7.000% or less
7.000% to 7.125%
7.125% to 7.375%
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% or 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%
Geographic Distribution
- -------------------------------------------------------------------------------
Number (2) 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
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Pool Total
Loan Seasoning
- -------------------------------------------------------------------------------
Number (2) Scheduled Based on
Number of Years of Loans Balance Balances
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Weighted Average Seasoning is 0.0
Distribution of Remaining Term
Fully Amortizing
- -------------------------------------------------------------------------------
Fully Amortizing Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
- -------------------------------------------------------------------------------
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 Averge Months to Maturity is 0
Distribution of DSCR
- -------------------------------------------------------------------------------
Debt Services Number (2) Scheduled Based on
Coverage Ratio(1) of Loans Balance Balance
- -------------------------------------------------------------------------------
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
Distribution of Amortization Type
- -------------------------------------------------------------------------------
Number (2) Scheduled Based on
Amortization Type of Loans Balance Balance
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Total 0 0 0.00%
- -------------------------------------------------------------------------------
Distribution of Remaining Term
Balloon Loans
- -------------------------------------------------------------------------------
Balloon Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
- -------------------------------------------------------------------------------
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
120 to 180 months
181 to 240 months
- -------------------------------------------------------------------------------
Total 0 0 0.00%
- -------------------------------------------------------------------------------
Weighted Averge Months to Maturity is 0
NOI Aging
- -------------------------------------------------------------------------------
Number (2) Scheduled Based on
NOI Dates of Loans Balance Balance
- -------------------------------------------------------------------------------
1 year or less
1 to 2 years
2 Years or More
Unknown
- -------------------------------------------------------------------------------
Total 0 0 0.00%
- -------------------------------------------------------------------------------
(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
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
ABN AMRO Acct: 99-9999-99-9
Specially Serviced Loan Detail
- --------------------------------------------------------------------------------
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code (1) Comments
- --------------------------------------------------------------------------------
(1) Legend:
1) Request for waiver of Prepayment Penalty
2) Payment default
3) Request for Loan Modification or Workout
4) Loan with Borrower Bankruptcy
5) Loan in Process of Foreclosure
6) Loan now REO Property
7) Loans Paid Off
8) Loans Returned to Master Servicer
Appendix A
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
ABN AMRO Acct: 99-9999-99-9
Modified Loan Detail
- --------------------------------------------------------------------------------
Disclosure Modification Modification
Control # Date Description
- --------------------------------------------------------------------------------
Appendix B
<PAGE>
GS Mortgage Securities Corporation II
GMAC Commercial Mortgage Corp., as Master Servicer
Lennar Partners, Inc., as Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
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>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
Appendix C
<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-GS99-C1
Re: Transferor of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of January 10, 1999 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO Capital Limited,
Inc., as a Responsible Party, Daiwa Finance Corp., as a Responsible Party, Daiwa
Real Estate Finance Corp., as a Responsible Party, GMAC Commercial Mortgage
Corporation, as Master Servicer, Lennar Partners, Inc., as 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, 1999-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:
- ----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
<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-GS99-C1
Re: Transferor of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of January 10, 1999 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO Capital Limited,
Inc., as a Responsible Party, Daiwa Finance Corp., as a Responsible Party, Daiwa
Real Estate Finance Corp., as a Responsible Party, GMAC Commercial Mortgage
Corporation, as Master Servicer, Lennar Partners, Inc., as 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, 1999-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:
- ----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
<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-GS99-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Class
[____]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of January 10, 1999 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
Daiwa Finance Corp., as a Responsible Party, Daiwa Real Estate Finance Corp., as
a Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer,
Lennar Partners, Inc., as 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.
- ----------
* Select appropriate depository.
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:
- ----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
<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-GS99-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Class
[____]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of January 10, 1999 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
Daiwa Finance Corp., as a Responsible Party, Daiwa Real Estate Finance Corp., as
a Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer,
Lennar Partners, Inc., as 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:
- ----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
<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-GS99-C1
Re: Transfer of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Class
[____]
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of January 10, 1999 (the "Pooling and Servicing Agreement"), by and among GS
Mortgage Securities Corporation II, as Seller, Goldman Sachs Mortgage Company,
as a Responsible Party, AMRESCO Capital Limited, Inc., as a Responsible Party,
Daiwa Finance Corp., as a Responsible Party, Daiwa Real Estate Finance Corp., as
a Responsible Party, GMAC Commercial Mortgage Corporation, as Master Servicer,
Lennar Partners, Inc., as 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:
- ----------
* Select appropriate depository.
<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-GS99-C1
Re: Transferor of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Class [____]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of January 10, 1999 (the "Pooling and Servicing
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller,
Goldman Sachs Mortgage Company, as a Responsible Party, AMRESCO Capital Limited,
Inc., as a Responsible Party, Daiwa Finance Corp., as a Responsible Party, Daiwa
Real Estate Finance Corp., as a Responsible Party, GMAC Commercial Mortgage
Corporation, as Master Servicer, Lennar Partners, Inc., as 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, 1999-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
[_________________________], a [____________________], having an address at
[___________________________] (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 1999-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 January, 1999.
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:
Dated:
<PAGE>
EXHIBIT Q-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates
Series 1998-CF1
Comparative Financial Status Report
as of _____
<TABLE>
<CAPTION>
Original Underwriting Information
---------------------------------
Basis Year
Last
Property Scheduled Paid Annual Financial
Prospectus Inspection Loan Thru Debt Info as % Total $ (1)
ID City State Date Balance Date Service of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
List all loans currently in deal with or without information largest to smallest
loan
Total $ $ WA $ $ WA
</TABLE>
<TABLE>
<CAPTION>
2nd Preceding Annual Operating Information Preceding Annual Operating Information
------------------------------------------ --------------------------------------
As of ________ Normalized As of ________ Normalized
Financial Financial
Info % Total $ (1) Info % Total $ (1)
as of Occ Revenue NOI DSCR as of Occ Revenue NOI DSCR
Date Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
WA $ $ WA WA $ $ WA
</TABLE>
<TABLE>
<CAPTION>
Trailing Financial Information Net Change
------------------------------ ----------
Month Reported Preceding & Basis
FS FS %
Start End Total $ % % Total (1)
Date Date Revenue NOI DSCR Occ Rev DSCR
<S> <C> <C> <C> <C>
yy/mm yy/mm
WA $ $ WA WA $ WA
</TABLE>
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 Loans Balance
# % $ % # % $ %
(1) DSCR should match to Operating Statement and is normally calculated using
NOI/Debt Service.
(2) Net change should compare the latest year to the underwriting year
<PAGE>
EXHIBIT Q-2
FORM OF DELINQUENT LOAN STATUS REPORT
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
Delinquent Loan Status Report
as of _____
<TABLE>
<CAPTION>
Short Name Scheduled Total P&I Total
Prospectus (When Property Sq Ft or Paid Thru Loan Advances to Expenses to
ID Appropriate) Type City State Units Date Balance Date Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 + DAYS DELINQUENT
30 + DAYS DELINQUENT
Current & at Special Servicer
</TABLE>
<TABLE>
<CAPTION>
Other Appraisal
Advances Current Current LTM Value using BPO or Loss using
(Taxes & Total Monthly Interest Mat. NOI LTM ***Cap Rate NOI & Cap Valuation Internal 90% Appr. or
Escrow) Exposure P&I Rate Date Date LTM NOI DSCR Assigned Rate Date Value** BPO(f)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In foreclosure, MOD - Modification, DPO -
discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payments Plan, TBD - to
Be Determined etc...)
It is possible to combine the status codes if the loan is going in more than
one direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
**App - Appraisal, BPO -Broker opinion, Int - Internal Value
***How to determine the cap rate is agreed upon by Underwriter and special
servicer - to be provided by a third party
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
Delinquent Loan Status Report
as of _____
<TABLE>
<CAPTION>
Total
Short Name Appraisal
Prospectus (When Property Sq Ft or Estimated Reduction Transfer Resolution
ID Appropriate) Type City State Units Recovery % Realized Date Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 + DAYS DELINQUENT
30 + DAYS DELINQUENT
Current & at Special Servicer
</TABLE>
Expected
FCL Start FCL Sale Workout
Date Date Strategy Comments
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout strategy should match the CSSa Loan file using abrieviated
It is possible to combine the status codes if the loan is going in more
**App - Appraisal, BPO - Broker opinion, Int - Internal Value
***How to determine the cap rate is agreed upon by Underwriter and
<PAGE>
EXHIBIT Q-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Historical Loan Modification Report
as of _____
<TABLE>
<CAPTION>
Balance
when Balance at the
Modification sent to Effective Date # Mths
Prospectus or Effective Special of for Rate New
ID City State Ext Flag Date Servicer Rehabilitation Old Rate Change Rate Old P&I New P&I
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
Information is as of modification. Each line it should not change in the future.
Only new modifications should be added.
Total For All Loans:
Total For Loans In Current Month:
# of Loans $ Balance
Modifications:
Maturity Date Extentions:
Total:
</TABLE>
(2) Ext. Future
Total # Interest Loss
Mths for (1) Realized to Trust $
Old New Change of Loss to (Rate
Maturity Maturity Mod Trust $ Reduction) COMMENT
*The information in these columns is from a particular point in time and should
not change on this report once assigned.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
<PAGE>
EXHIBIT Q-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
Historical Loss Estimate Report (Reo-Sold or Discounted Payoff)
as of ________
<TABLE>
<CAPTION>
Latest
Appraisal Net Amount
Short Name % Rec or Effective Received
Prospectus (When Property from Brokers Date of Sales from Scheduled Total P&I
ID Appropriate) Type City State Sale Opinion Sale Price Sale Balance Advanced
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidiation date and does not need to be updated.
Total all Losses:
Current Month Only:
</TABLE>
<TABLE>
<CAPTION>
Minor
Date Loss Minor Adj Loss % of
Total Servicing Fees Actual Losses Passed Adj to Passed Total Loss with Scheduled
Expenses Expense Net Proceeds Passed thru thru Trust thru Adjustment Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT Q-5
FORM OF REO STATUS REPORT
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
REO Status Report
as of _____
<TABLE>
<CAPTION>
Other
Short Name Paid Scheduled Total P&I Total Advances
Prospectus (When Property Sq Ft or thru Loan Advances to Expenses to (Taxes & Total
ID Appropriate) Type City State Units Date Balance Date Date Escrow) Exposure
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Value Appraisal Total
LTM using NOI BPO or Loss using Appraisal
Current Maturity NOI LTM NOI Cap Rate Valuation & Cap Internal 92% Appr. Estimated Reduction Transfer
Monthly P&I Date Date /DSC Assign Date Rate Value** or BPO (f) Recovery % Realized Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
REO Pending
Acquisition Reduction
Date Date Comments
(1) Use the following codes, App - appraisal, BPO - Brokers Opinion,
Int - Internal Value
<PAGE>
EXHIBIT Q-6
FORM OF WATCH LIST
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
Servicer Watch List
as of _____
<TABLE>
<CAPTION>
Short name Scheduled
Prospectus (When Property Loan Paid thru Maturity Comment/Reason
ID Appropriate) Type City State Balance Date Date LTM DSCR on Watch List
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans on watch list and reason sorted in decending balance order.
Total: $
*LTM - Last 12 months either trailing or last annual.
</TABLE>
<PAGE>
EXHIBIT Q-7
FORM OF OPERATING STATEMENT ANALYSIS
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
OPERATING STATEMENT ANALYSIS REPORT
as of _____
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C> <C>
Control Number
Current 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 Trailing
Occupancy Rate*
Average Rental Rate
*Occupany rates are year end or the ending date of the financial statement for the period.
INCOME:
No. of Months 97 Trailing **
Period Ended Underwriting 1995 1996 1997 as of / /97 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
Normalized - Full year financial statements that have been reviewed by the underwriter or Servicer
**Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits Expense
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses
Operating Expense Ratio
Net Operating Income
Leasing Commissions
Tenant Improvements
Replacement Reserves
Total Capital Items
N.O.I. after Capital Items
Debt Service (per servicer)
Cash Flow after Debt Service
(1) DSCR: (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
(ie. operating statements, financial statements, tax return, other)
The yars shown above will roll always showing a three year history, 1996 is the
current year financial, 1995 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statements.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows: Retail: 1) Base rent 2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage Nursing Home: 1) Private 2) Medicaid 3)
Medicare
Income Comments :
Expense Comments :
Capital Items Comments :
(1) Used in the Comparative Financial Status Report
</TABLE>
<PAGE>
EXHIBIT Q-8
FORM OF NOI ADJUSTMENT WORKSHEET
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
FORM OF NOI ADJUSTMENT WORKSHEET for "year"
as of _____
<TABLE>
<CAPTION>
PROPERTY OVERVIEW
Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
<S> <C> <C> <C>
Occupancy Rate *
Average Rental Rate
*Occupancy rates are year end or the
ending date of the financial statement
for the period.
INCOME:
Number of Mos.Annualized "Year"
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Throughs/Escalations
Other Income
Effective Gross Income $0.00 $0.00 $0.00
Normalized - Full year financial
statements that have been reviewed by
the Servicer.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Administration
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $0.00 $0.00 $0.00
Operating Expense Ratio
Net Operating Income $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total Capital Items $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00
Debt Service (per Servicer) $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00
</TABLE>
(1)DSCR: (NOI/Debt Service)
DSCR: (after reserves\Cap exp.)
Source of Financial Data:
(ie. operating statements, financial
statements, tax return, other)
Notes and Assumptions:
- --------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers. The "Normalized" column is used in the Operating Statement
Analysis Report. This report may vary depending on the property type and because
of the way information may vary in each borrower's statement.
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the Comparative Financial Status Report
<PAGE>
EXHIBIT Q-9
CSSA STANDARD REPORTING PARCKAGE 1
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density
(Bytes-Per-Inch); Blocking Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To Each
Collateral Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted
To Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 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) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To Exceed 50
Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The Gross
Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per The
Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate Allowed Per The
Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Maximum Periodic % Increase To The Borrowers P&I Payment
Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The Borrowers P&I
Payment Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Pay Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See Rounding
Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The Original
Balance Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To The Original Balance
Allowed Per The Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At
Cutoff
Remaining Amor-Tm At Securitiz'n 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Securitization
Sched Prin Bal At Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan At
Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To The
Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Net Rate At Securitization 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At Securitiz'n 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
# Of Properties 54 Numeric 13 The Number Of Properties Underlying The Mortgage Loan
Property Name 55 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Address 56 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property City 57 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property State 58 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property County 60 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code 61 AN MF If Number Of Properties Is Greater Than 1 Then "Various"
(See Property Type Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than 1 Then "000000"
# Of Units/Beds/Rms At Securitiz'n 63 Numeric 75 If Number Of Properties Is Greater Than 1 Then "000000"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than 1 Then "000000"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/N) 74 AN Y Y=Yes, N=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
PAYMENT TYPE CODE ARM INDEX CODE ROUNDING CODE
LEGEND LEGEND LEGEND
<S> <C> <C>
1 Fully Amortizing A 11 FRLB COF1 (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 (Nearest)Percentage Increment
3 Interest Only / Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only / Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only / Amortizing / Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Journal Prime Rate
9 Other G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
PROPERTY TYPES CODE
LEGEND
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
</TABLE>
<PAGE>
EXHIBIT Q-10
CSSA STANDARD REPORTING PACKAGE 2
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
SPECIFICATION DESCRIPTION/COMMENTS
Acceptable Media Types Magnetic Tape, Diskette, Electronic
Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection
Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
Return Address Label Required for return of physical media
(magnetic tape or diskette)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Prospectus Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Sched Balance 6 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
Beginning Of The Current Period
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Scheduled Principal Balance At The End Of
The Current Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note Rate
= Net Pass-Through Rate
Net Pass-Through Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To Calculate The
Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc Of
The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
<S> <C> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest Payment Due For The
Current Period
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For The
Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To Prepayment
Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The Prepayment
Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined Appraisal
Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure
REO Date 43 AN YYYYMMDD Date Of REO
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted To The Tr
Per The Tr Doc'n
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted From The
Tr Per The Tr Doc'n
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Op Income
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Svc Amount
Preceding Fiscal Year DSCR 56 Numeric 2.55 Preceding Fiscal Yr Debt Svc Cvrge Ratio
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
Field Format
Field Name Number Type Example Description/Comments
<S> <C> <C>
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR 63 Numeric 2.55 Second Preceding Fiscal Year Debt Svc Cvrge Ratio
Sec Preceding FY Physical Occ'y 64 Numeric 0.85 Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Fin'l As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00 Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00 Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt Service Coverage
Ratio
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85 Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For The
Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal Value For The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Svc Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
Date Asset Expected to Be Resolved 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
Year Last Renovated 80 AN 1997 Year Property Last Renovated
New Fields Added:
Cap Rate Assigned 81 Numeric 10 Cap Rate Assigned
FCL Sale Date (Expected or Actual) 82 AN YYYYMMDD FCL Sale Date Expected or Actual
</TABLE>
Most Recent Fiscal YTD Figures Are From The Last Financials Processed By The
Servicer Pursuant To The Terms Of The Trust Document, And Cover The Period From
The Start Date To The End Date.
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
Liquidation/Prepayment Code Status of Mortgage Loan Modification Code
Legend Legend Legend
<S> <C> <C>
1 Partial LIq'n (Curtainment) A Payment Not Received But Still in Grace Period 1 Maturity Date Extension
2 Payoff Prior To Maturity B Late Payment But Less Than 1 Month Delinquent 2 Amortization Change
3 Disposition 0 Current 3 Principal Write-Off
4 Repurchase 1 One Month Delinquent 4 Combination
5 Full Payoff At Maturity 2 Two Months Delinquent
6 DPO 3 Three Or More Months Delinquent
7 Liquidation 4 Assumed Sched Payment (Performing Matured Ball'n)
7 Foreclosure
9 REO
Workout Strategy Code
Legend
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
</TABLE>
<PAGE>
EXHIBIT Q-11
CSSA STANDARD REPORTING PACKAGE 3
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
Transaction Id 1 AN XXX97001
Loan ID 2 AN XXX9701A
Prospectus Loan ID 3 AN 00000000012345
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 FL
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/S/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
<TABLE>
<CAPTION>
CSSA
DESCRIPTION/COMMENTS LOAN
<S> <C>
S1,P1
S3,P3
From Offering Document S4,P4
Should contain Prospectus ID and propety identifier, e.g., 1001-001, 1000-002
P5
All Loans With The Same Numeric Value Are Crossed S75
S55
S56
S57
S58
S59
S60
S61
S64
P80
RT, IN, WH, OF, MU, SS,OT = SF S62
MF, MHP, LO, HC = Units S63
1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5= Released, 6= Same as at securitization
Issuer to allocate loan % attributable to property for multi-property loans
Calculation based on Current Allocated Loan Amount and Current SPB for associated loan.
Maintained by servicer. P7
Either Y=Yes, S=Subordinat, N= No ground lease S74
S77
P74
P75
Could be different dates for different properties if foreclosing P79
P42
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
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 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 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
Operating Expenses At Securitization 46 Numeric 1000000
NOI At Securitization 47 Numeric 1000000
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
<TABLE>
<CAPTION>
CSSA
DESCRIPTION/COMMENTS LOAN
<S> <C>
P43
Map to "Most Recent Fiscal YTD Phys. Occ." in CSSA P71
Add a new field to the CSSA Loan file. P71
Roll over review to be completed every 12 months
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
For Office, WH, Retail, Industrial *Only if disclosed in the offering document
Needed to indicate month ending for borrower's Fiscal Year
S72
S70
S71
S65
S66
S67
S68
S69
</TABLE>
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000
Preceding Fiscal Year Expenses 55 Numeric 1000000
Preceding Fiscal Year NOI 56 Numeric 1000000
Preceding Fiscal Year Debt Service Amt. 57 Numeric 1000000
Preceding Fiscal Year DSCR 58 Numeric 1.30
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000
Second Preceding FY Expenses 62 Numeric 1000000
Second Preceding FY NOI 63 Numeric 1000000
Second Preceding FY Debt Service 64 Numeric 1000000
Second Preceding FY DSCR 65 Numeric 1.30
Sec Preceding FY Physical Occupancy 66 Numeric 0.90
CSSA
DESCRIPTIION/COMMENTS LOAN
P58
P52
P53
P54
P55
P56
P57
P65
P59
P60
P61
P62
P63
P64
<PAGE>
GS Mortgage
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<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".
</TABLE>
<PAGE>
GS Mortgage
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD NAME RELATIONSHIP TO CORRESPONDING CSSA 100.1 FIELD
<S> <C>
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
</TABLE>
<PAGE>
GS Mortgage
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
FIELD NAME RELATIONSHIP TO CORRESPONDING CSSA 100.1 FIELD
<S> <C>
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>
ANNEX A
SCHEDULE OF MORTGAGE LOANS COVERED
BY THE ENVIRONMENTAL INSURANCE
POLICY AS OF THE CLOSING DATE
<PAGE>
GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates Series 1999-C1
Mortgage Loan Schedule Daiwa Environmental Transaction Screens
<TABLE>
<CAPTION>
Current Current Revised Excess
Monthly Interest Rate (ARD Rate (ARD
Loan Number Borrower Name Payment Rate Loans Loans
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
932 625 West 1st. Street, LLC 39,137.94 6.9900
582 JH2 Investments, LLC 26,436.51 7.7500
639 Federated Housing Realty Corp. 26,572.49 8.5000
935 Jones Street Terrace Associates, LLC 22,649.40 7.6250
636 Professional Investors Security Fund VII 21,370.58 7.7500
573 Roy E. Nelson and Mabel E. Nelson Revocable Trust 17,735.79 7.5000
937 Woodland Apartments, LLC 17,251.49 7.6250
621 St. Albans Realty, Inc. 16,810.23 7.3750
938 Creekside Apartments, LLC 15,174.43 7.6250
510 Dr. Jaroslaw Pikolycky 14,308.41 8.0000
519 Jeffery Mertens and Kathy Mertens 13,448.08 7.6250
606 Houston Marquee Apartments, L.L.C. 13,506.78 8.0000
589 East Crosstimbers Plaza, L.P. 13,703.33 7.6250
627 Viking Development Company 12,651.76 7.7500
527 Colonial Village Development, LLC 12,598.64 7.8750
569 Wayne Wampler and Dianne L. Wampler 12,001.22 7.5000
594 72 & 82 Terrace Realty, Inc. 13,758.85 8.3750
524 Windsor Square Apartments, Inc. 11,911.44 7.8750
500 358 Realty Associates, LLC 9,979.54 7.0000
940 Dodeka Realty Corporation 10,597.75 7.3750
521 John Henry Ragland & Brigid R. Ragland 10,524.67 7.3750
585 Windsor Property Investments 10,805.43 8.0000
504 West 160 Realty Corp 10,805.43 8.0000
614 Pinehill Plaza & Apartments, Inc. 10,531.55 8.1250
586 Dorian Court, Inc., a Pennsylvania corporation 10,219.51 8.1250
622 Professional Investors Security Fund XII, LP 8,556.23 7.1250
623 Professional Investors Security Fund XVI 8,273.26 7.1250
515 Robert & Mary Skorniak, et al 11,124.15 7.5000
595 Visions in Faith, Inc. 8,893.31 8.1250
933 V.G.M. Realty Corporation 8,273.87 8.0000
535 Sycamore Realty Trust 7,930.95 7.7500
605 BMK Enterprises, LLC 7,826.43 7.8750
608 RDK Realty, LLC 7,620.84 7.6250
543 Centre Park Properties, L.P. 7,810.78 8.0000
618 Hunter's Point Center, Ltd. 8,055.93 7.5000
602 RDB Building, LLC 7,389.91 7.5000
511 Delancey Sedgley Associates, L.P. 7,553.29 7.7500
536 3044 Kingsbridge LLC 8,435.45 8.2500
558 Banyan Woods Properties, Incorporated 7,364.46 7.7500
551 Thomas P. Murray & James Murray 7,326.69 7.7500
578 SFT Family Trust 7,411.09 8.1250
592 J & B Taos Partners, General Partnership 7,729.85 8.6250
600 Texas Real Property Holdings, Inc. 8,009.42 8.2500
554 Fares Salame and Mary Rose Salame 7,448.35 8.5000
546 Rockaway Parkway, Inc., a New York Corporation 6,946.35 8.0000
601 Douglas Park Partners, L.P. 6,653.06 8.0000
609 Holiday Property Enterprises, L.P. 6,637.62 8.0000
501 Steve D, Loi Tan, and Tu Van Nguyen 6,708.99 8.1250
934 Equity Realty Group, Inc. 6,560.44 8.0000
549 Rodan Realty Corp. 6,916.18 8.6250
528 Mortgage Investment Corporation 6,552.97 8.1250
598 River Road Co. LTD 6,174.53 8.0000
604 370 South Harrison Associates, LLC 6,042.63 7.7500
508 Robert & Mary Skorniak 7,416.10 7.5000
635 Jersey Waldo Realty LLC 6,560.91 8.2500
550 Randolph Properties, Ltd. 5,976.16 8.3750
616 340 East O'Keefe, LLC 5,513.90 7.6250
945 Marie Varveris, Inc 5,335.42 7.3750
567 Thomas P. Murray 5,513.90 7.7500
518 Robert & Mary Skorniak 6,767.19 7.5000
537 Group I El Monte Properties, Ltd. 5,261.62 7.5000
576 Third Avenue Bronx Realty Associates 5,344.88 7.8750
634 354 East 21st Street Realty Corporation 5,296.98 8.1250
542 John G. Miller, trustee of Lawndale Village 5,209.76 8.0000
509 Robert Hammett 5,378.54 8.3750
559 K & E Corporation 5,101.95 8.1250
568 Carlson Trust 4,909.64 7.7500
538 Golden Eagle Apartments LLC 5,140.69 8.2500
534 Chi-Kung Yu & Judy J. Yu 5,086.35 8.1250
939 Camelot Properties of Northeast Florida, Inc 4,947.83 7.8750
541 Khorrami Enterprises, Inc. 5,124.93 8.2500
641 Jane S. Guerin 5,046.08 8.2500
588 Dutch Street, Ltd. 5,012.00 8.3750
565 Paul Baum and Rachel Baum 4,669.63 7.6250
577 Station Associates, L.P. 4,785.26 8.0000
561 Station Associates, L.P. 4,708.08 8.0000
530 Prospect Square, LLC 4,672.95 7.8750
525 506 South Broadway, Inc. 5,359.60 8.6250
615 Blount Property Management, Inc. 4,581.32 7.8750
637 Mike Chen 4,618.28 8.1250
514 Robert Skorniak and Mary Skorniak 5,562.07 7.5000
612 Touraine Associates 4,323.10 7.5000
579 Laurence Edwards 4,437.94 8.0000
596 M & W Investors LLC 4,431.05 8.1250
632 Ched Management Company 4,183.99 7.6250
540 South Jupiter, Ltd., a Texas LP 4,509.27 8.5000
503 Gary W. Coy 4,336.48 8.2500
572 5600 Fernwood Avenue LLC 4,212.62 8.1250
936 Jersey Kennedy Realty LLC 4,441.39 8.2500
570 CDM Company, L.L.C 3,815.58 8.0000
587 Anthony Vasquez, Jr. 4,187.18 8.5000
</TABLE>
<TABLE>
<CAPTION>
Original
Original Original Remaining Maturity Amortization
Loan Number Interest Accrual Method Net Rate Balance Loan Term Loan Term Date Term
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
932 Actual Days / 360 Year-Days 6.9062 6,100,000 120 117 10/1/08 360
582 Actual Days / 360 Year-Days 7.6662 3,500,000 120 116 9/1/08 300
639 Actual Days / 360 Year-Days 8.4162 3,300,000 120 119 12/1/08 300
935 Actual Days / 360 Year-Days 7.5412 3,200,000 120 117 10/1/08 360
636 Actual Days / 360 Year-Days 7.6662 2,983,000 120 118 11/1/08 360
573 Actual Days / 360 Year-Days 7.4162 2,400,000 300 290 3/1/23 300
937 Actual Days / 360 Year-Days 7.5412 2,309,000 120 117 10/1/08 300
621 Actual Days / 360 Year-Days 7.2912 2,300,000 120 117 10/1/08 300
938 Actual Days / 360 Year-Days 7.5412 2,031,000 120 117 10/1/08 300
510 Actual Days / 360 Year-Days 7.9162 1,950,000 360 351 4/1/28 360
519 Actual Days / 360 Year-Days 7.5412 1,900,000 120 110 3/1/08 360
606 Actual Days / 360 Year-Days 7.9162 1,750,000 120 115 8/1/08 300
589 Actual Days / 360 Year-Days 7.5412 1,685,000 180 176 9/1/13 240
627 Actual Days / 360 Year-Days 7.6662 1,675,000 120 116 9/1/08 300
527 Actual Days / 360 Year-Days 7.7912 1,650,000 120 112 5/1/08 300
569 Actual Days / 360 Year-Days 7.4162 1,624,000 120 116 9/1/08 300
594 Actual Days / 360 Year-Days 8.2912 1,600,000 240 233 6/1/18 240
524 Actual Days / 360 Year-Days 7.7912 1,560,000 120 110 3/1/08 300
500 Actual Days / 360 Year-Days 6.9162 1,500,000 120 109 2/1/08 360
940 Actual Days / 360 Year-Days 7.2912 1,450,000 120 117 10/1/08 300
521 Actual Days / 360 Year-Days 7.2912 1,440,000 120 110 3/1/08 300
585 Actual Days / 360 Year-Days 7.9162 1,400,000 120 113 6/1/08 300
504 Actual Days / 360 Year-Days 7.9162 1,400,000 120 109 2/1/08 300
614 Actual Days / 360 Year-Days 8.0412 1,350,000 300 294 7/1/23 300
586 Actual Days / 360 Year-Days 8.0412 1,310,000 120 116 9/1/08 300
622 Actual Days / 360 Year-Days 7.0412 1,270,000 120 114 7/1/08 360
623 Actual Days / 360 Year-Days 7.0412 1,228,000 120 114 7/1/08 360
515 Actual Days / 360 Year-Days 7.4162 1,200,000 180 171 4/1/13 180
595 Actual Days / 360 Year-Days 8.0412 1,140,000 120 116 9/1/08 300
933 Actual Days / 360 Year-Days 7.9162 1,072,000 120 117 10/1/08 300
535 Actual Days / 360 Year-Days 7.6662 1,050,000 120 114 7/1/08 300
605 Actual Days / 360 Year-Days 7.7912 1,025,000 120 116 9/1/08 300
608 Actual Days / 360 Year-Days 7.5412 1,020,000 120 113 6/1/08 300
543 Actual Days / 360 Year-Days 7.9162 1,012,000 120 114 7/1/08 300
618 Actual Days / 360 Year-Days 7.4162 1,000,000 84 81 10/1/05 240
602 Actual Days / 360 Year-Days 7.4162 1,000,000 120 115 8/1/08 300
511 Actual Days / 360 Year-Days 7.6662 1,000,000 120 111 4/1/08 300
536 Actual Days / 360 Year-Days 8.1662 990,000 240 234 7/1/18 240
558 Actual Days / 360 Year-Days 7.6662 975,000 120 114 7/1/08 300
551 Actual Days / 360 Year-Days 7.6662 970,000 120 115 8/1/08 300
578 Actual Days / 360 Year-Days 8.0412 950,000 120 112 5/1/08 300
592 Actual Days / 360 Year-Days 8.5412 950,000 120 111 4/1/08 300
600 Actual Days / 360 Year-Days 8.1662 940,000 240 234 7/1/18 240
554 Actual Days / 360 Year-Days 8.4162 925,000 120 112 5/1/08 300
546 Actual Days / 360 Year-Days 7.9162 900,000 120 114 7/1/08 300
601 Actual Days / 360 Year-Days 7.9162 862,000 120 113 6/1/08 300
609 Actual Days / 360 Year-Days 7.9162 860,000 120 115 8/1/08 300
501 Actual Days / 360 Year-Days 8.0412 860,000 120 109 2/1/08 300
934 Actual Days / 360 Year-Days 7.9162 850,000 120 117 10/1/08 300
549 Actual Days / 360 Year-Days 8.5412 850,000 120 113 6/1/08 300
528 Actual Days / 360 Year-Days 8.0412 840,000 120 112 5/1/08 300
598 Actual Days / 360 Year-Days 7.9162 800,000 120 116 9/1/08 300
604 Actual Days / 360 Year-Days 7.6662 800,000 120 115 8/1/08 300
508 Actual Days / 360 Year-Days 7.4162 800,000 180 171 4/1/13 180
635 Actual Days / 360 Year-Days 8.1662 770,000 240 238 11/1/18 240
550 Actual Days / 360 Year-Days 8.2912 750,000 120 113 6/1/08 300
616 Actual Days / 360 Year-Days 7.5412 738,000 120 118 11/1/08 300
945 Actual Days / 360 Year-Days 7.2912 730,000 120 117 10/1/08 300
567 Actual Days / 360 Year-Days 7.6662 730,000 120 115 8/1/08 300
518 Actual Days / 360 Year-Days 7.4162 730,000 180 171 4/1/13 180
537 Actual Days / 360 Year-Days 7.4162 712,000 180 174 7/1/13 300
576 Actual Days / 360 Year-Days 7.7912 700,000 120 111 4/1/08 300
634 Actual Days / 360 Year-Days 8.0412 679,000 120 118 11/1/08 300
542 Actual Days / 360 Year-Days 7.9162 675,000 120 114 7/1/08 300
509 Actual Days / 360 Year-Days 8.2912 675,000 120 111 4/1/08 300
559 Actual Days / 360 Year-Days 8.0412 654,000 120 114 7/1/08 300
568 Actual Days / 360 Year-Days 7.6662 650,000 120 116 9/1/08 300
538 Actual Days / 360 Year-Days 8.1662 652,000 120 112 5/1/08 300
534 Actual Days / 360 Year-Days 8.0412 652,000 120 111 4/1/08 300
939 Actual Days / 360 Year-Days 7.7912 648,000 120 117 10/1/08 300
541 Actual Days / 360 Year-Days 8.1662 650,000 120 112 5/1/08 300
641 Actual Days / 360 Year-Days 8.1662 640,000 120 118 11/1/08 300
588 Actual Days / 360 Year-Days 8.2912 629,000 120 116 9/1/08 300
565 Actual Days / 360 Year-Days 7.5412 625,000 120 115 8/1/08 300
577 Actual Days / 360 Year-Days 7.9162 620,000 120 115 8/1/08 300
561 Actual Days / 360 Year-Days 7.9162 610,000 120 115 8/1/08 300
530 Actual Days / 360 Year-Days 7.7912 612,000 120 111 4/1/08 300
525 Actual Days / 360 Year-Days 8.5412 612,000 240 230 3/1/18 240
615 Actual Days / 360 Year-Days 7.7912 600,000 120 114 7/1/08 300
637 Actual Days / 360 Year-Days 8.0412 592,000 120 118 11/1/08 300
514 Actual Days / 360 Year-Days 7.4162 600,000 180 171 4/1/13 180
612 Actual Days / 360 Year-Days 7.4162 585,000 120 112 5/1/08 300
579 Actual Days / 360 Year-Days 7.9162 575,000 120 112 5/1/08 300
596 Actual Days / 360 Year-Days 8.0412 568,000 120 115 8/1/08 300
632 Actual Days / 360 Year-Days 7.5412 560,000 120 118 11/1/08 300
540 Actual Days / 360 Year-Days 8.4162 560,000 120 112 5/1/08 300
503 Actual Days / 360 Year-Days 8.1662 550,000 120 110 3/1/08 300
572 Actual Days / 360 Year-Days 8.0412 540,000 120 110 3/1/08 300
936 Actual Days / 360 Year-Days 8.1662 521,250 240 237 10/1/18 240
570 Actual Days / 360 Year-Days 7.9162 520,000 120 115 8/1/08 360
587 Actual Days / 360 Year-Days 8.4162 520,000 120 114 7/1/08 300
</TABLE>
<TABLE>
<CAPTION>
Number of
Remaining Properties Anticipated
Amortization Cut-off Date Cut-off Date Servicing Securing Repayment
Loan Number Term Balance LTV Fee Loan Date Seller
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
932 357 5,884,978.41 75 0.0838 1 DRE
582 296 3,486,035.03 74 0.0838 2 DRE
639 299 3,297,581.68 72 0.0838 1 DRE
935 357 3,194,370.91 71 0.0838 1 DFC (Sutter)
636 358 2,979,417.38 65 0.0838 1 DFC (Sutter)
573 290 2,374,931.23 49 0.0838 1 DFC (Sutter)
937 297 2,302,194.93 71 0.0838 1 DFC (Sutter)
621 297 2,292,873.31 74 0.0838 1 DRE
938 297 2,025,014.27 72 0.0838 1 DFC (Sutter)
510 351 1,940,119.15 73 0.0838 1 DFC (Wingate)
519 350 1,888,326.45 79 0.0838 4 DRE
606 295 1,741,856.07 70 0.0838 1 DRE
589 236 1,673,614.89 67 0.0838 1 DRE
627 296 1,668,316.76 73 0.0838 1 DRE
527 292 1,637,348.21 71 0.0838 1 DRE
569 296 1,617,204.84 76 0.0838 1 DRE
594 233 1,582,980.63 60 0.0838 1 DRE
524 290 1,544,857.49 74 0.0838 1 DFC (Wingate)
500 349 1,487,244.01 71 0.0838 1 DRE
940 297 1,445,507.10 72 0.0838 1 DRE
521 290 1,424,593.62 66 0.0838 1 DFC (ITLA)
585 293 1,390,750.49 70 0.0838 1 DFC (ITLA)
504 289 1,384,503.94 63 0.0838 1 DRE
614 294 1,342,751.11 74 0.0838 1 DRE
586 296 1,305,140.22 69 0.0838 1 DRE
622 354 1,264,835.66 63 0.0838 1 DFC (Sutter)
623 354 1,223,006.50 61 0.0838 1 DFC (Sutter)
515 171 1,167,817.13 39 0.0838 1 DFC (ITLA)
595 296 1,135,770.89 70 0.0838 1 DRE
933 297 1,069,074.98 75 0.0838 1 DRE
535 294 1,043,907.88 67 0.0838 1 DFC (ITLA)
605 296 1,021,007.50 74 0.0838 1 DRE
608 293 1,012,745.68 74 0.0838 1 DFC (Secore)
543 294 1,006,422.33 75 0.0838 1 DRE
618 237 994,966.85 59 0.0838 1 DRE
602 295 994,860.32 62 0.0838 1 DRE
511 291 990,983.81 71 0.0838 1 DRE
536 234 980,976.99 70 0.0838 1 DFC
558 294 969,342.99 75 0.0838 1 DFC (ITLA)
551 295 965,253.78 62 0.0838 1 DRE
578 292 943,076.72 52 0.0838 1 DFC (ITLA)
592 291 942,810.76 63 0.0838 1 DRE
600 234 931,432.67 69 0.0838 1 DFC (Secore)
554 292 918,766.69 74 0.0838 1 DRE
546 294 895,039.58 69 0.0838 1 DFC (Parmann)
601 293 856,304.94 74 0.0838 1 DFC
609 295 855,997.82 67 0.0838 1 DRE
501 289 850,695.11 74 0.0838 1 DFC (Wingate)
934 297 847,680.72 69 0.0838 1 DRE
549 293 845,057.72 68 0.0838 1 DRE
528 292 833,878.30 73 0.0838 1 DFC (Aries)
598 296 796,958.63 66 0.0838 1 DRE
604 295 796,085.60 72 0.0838 1 DRE
508 171 778,544.76 31 0.0838 1 DFC (ITLA)
635 238 767,633.14 72 0.0838 1 DRE
550 293 745,406.92 75 0.0838 1 DRE
616 298 736,501.85 65 0.0838 1 DFC (Sutter)
945 297 727,738.06 66 0.0838 1 DRE
567 295 726,428.12 69 0.0838 1 DRE
518 171 710,422.11 36 0.0838 1 DFC (ITLA)
537 294 707,655.82 74 0.0838 1 DRE
576 291 693,840.21 73 0.0838 1 DRE
634 298 677,749.19 70 0.0838 1 DFC (Parmann)
542 294 671,279.70 73 0.0838 1 DFC (Sutter)
509 291 669,623.09 70 0.0838 1 DRE
559 294 650,488.34 65 0.0838 1 DRE
568 296 647,406.50 65 0.0838 1 DRE
538 292 647,369.58 72 0.0838 1 DRE
534 291 646,538.60 74 0.0838 1 DRE
939 297 646,185.39 72 0.0838 1 DRE
541 292 645,383.71 72 0.0838 1 DRE
641 298 638,849.92 71 0.0838 1 DRE
588 296 626,779.57 74 0.0838 1 DRE
565 295 621,865.38 62 0.0838 1 DRE
577 295 617,114.72 69 0.0838 1 DRE
561 295 607,161.24 69 0.0838 1 DRE
530 291 606,614.60 61 0.0838 1 DFC (Progress)
525 230 602,977.56 67 0.0838 1 DFC (Wingate)
615 294 596,606.60 75 0.0838 1 DFC (Sutter)
637 298 590,909.45 75 0.0838 1 DRE
514 171 583,908.62 42 0.0838 1 DFC (ITLA)
612 292 580,168.15 36 0.0838 1 DFC (Wingate)
579 292 570,701.14 69 0.0838 1 DRE
596 295 565,423.14 74 0.0838 1 DRE
632 298 558,863.19 66 0.0838 1 DRE
540 292 556,226.33 73 0.0838 1 DRE
503 290 545,049.71 68 0.0838 1 DFC (Wingate)
572 290 535,014.54 74 0.0838 1 DFC (ITLA)
936 237 518,899.07 71 0.0838 1 DRE
570 355 518,582.94 74 0.0838 1 DRE
587 294 517,422.74 66 0.0838 1 DRE
</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 the Mortgage Loans set forth on Schedule I to
this Annex B as to which ACLI 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 the Mortgage Loans set forth on Schedule I to this Annex B as
to which ACLI 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).
(ii) The Responsible Party had full right and authority to sell, assign and
transfer each such Mortgage Loan to the Seller (or, in the case of the Mortgage
Loans set forth on Schedule I to this Annex B as to which ACLI is the
Responsible Party, to GSMC immediately prior to the transfer of such Mortgage
Loans to GSMC). GSMC had full right and authority to sell, assign and transfer
the Mortgage Loans as to which ACLI is the Responsible Party, (assuming the
accuracy of the representations and warranties in this paragraph (ii) made by
ACLI).
(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) Neither the Responsible Party nor any party servicing the Mortgage
Loan on behalf of the Responsible Party, has 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) Neither the Responsible Party nor any party Servicing the
Mortgaging on behalf of the Responsible Party has 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 Mortgage Loan or (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 other than non-continuing
expenses 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 (or, in the alternative, requires the Borrower to comply with all laws
generally) and, except with respect to Mortgage Loans for which ACLI 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 ten 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. Except under
circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of the related Mortgaged Property or to the payment of amounts
due under such Mortgage Loan. 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 where mandatory flood purchase
requirements apply, 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) meeting
the requirements of the then current guidelines of the Federal Insurance
Administration in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value of such
Mortgaged Property, and (3) the maximum amount of insurance available under the
National Flood Insurance Act of 1968, as amended.
(xiv) One or more Phase I environmental site assessments ("ESA") or, with
respect to the Mortgage Loans set forth on Annex A, environmental transaction
screens ("ETS" and, together with each ESA, an "Environmental Report") were
performed (or an update of a previously conducted Environmental Report was
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). With respect to the
Mortgage Loans for which an ETS was conducted, the conducting of an ETS rather
than an ESA was consistent with prudent commercial lending practices under the
circumstances. Each ETS was conducted in a manner which exceeded current
American Society for Testing Materials Standards of an ETS. The Responsible
Party, having made no independent inquiry other than reviewing the resulting
Environmental Report(s) and/or employing an environmental consultant to perform
the ESA(s) or ETS(s) referenced herein, and, with respect to each ETS,
conducting any reasonable inquiry based upon such ETS, has no knowledge of any
material and adverse environmental condition or circumstance affecting such
Mortgaged Property that was not disclosed in the related Environmental
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 and/or the lessee's interest
under a ground lease of real property and such other property as set forth in
the related Mortgage File.
(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), and all such payments
have been delivered (or will be delivered in accordance with the terms of the
Pooling Agreement) to 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) Unless insured against under the related title policy, 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 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 amounts paid by the
tenant as specifically provided under the related 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 lodging 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 at least the following
acts (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 (or to the best knowledge of any party servicing the Mortgage Loan on
behalf of the Responsible Party), 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
(or to the best knowledge of any party servicing the Mortgage Loan on behalf of
the Responsible Party), 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) Neither the Responsible Party nor any party servicing the
Mortgage Loan on behalf of the Responsible Party has any 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 option of the
mortgagee to defease a mortgaged property (the "Defeasance Option") is
exercisable (i) no earlier than a date that is at least two years following the
Closing Date and (ii) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), (B) the Borrower will not be liable for any shortfalls from
the Defeasance Loan except to the extent so liable prior to defeasance, (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), and (D) the related loan documents provide that the
reasonable costs and expenses of exercising the Defeasance Option are required
to be paid by the related Borrower.
(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) The terms of such ground lease and the related Mortgage,
taken together, require any related insurance proceeds (other than in
respect of a total or substantially total loss or taking) 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) 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 to the best of the Responsible Party's knowledge 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 (other than exclusivity or parking maintenance or
structural repair 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
mortgagee 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 being threatened or has been
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:
(A) Each Borrower and each Healthcare Facility substantially
complies with all applicable federal, state, commonwealth and local
laws, regulations, quality and safety standards 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) 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 Facility operator or manager (each, a
"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) Each Healthcare Facility substantially complies with all
requirements for participation in Medicare and Medicaid; and 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) There are 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 and
Medicaid 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) No Borrower in the related Mortgage, no Borrower,
Healthcare Operator or Healthcare Facility is 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) Each Healthcare Facility and the use thereof complies in
all material respects with all applicable health care, nursing facility
and other similar regulatory requirements.
(I) 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) There are no 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) There are no pending Medicaid, Medicare or Third-Party
Payors' Programs proceedings, suits or investigations at any of the
Healthcare Facilities that might have a material adverse effect on the
operations of the Healthcare Facility.
(L) 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) 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) 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.
(liii) (A) With respect to the five largest Mortgage Loans based on
percentage of Cut-Off Date Stated Principal Balance, a Uniform Commercial Code
financing statement has been sent for filing and/or recording in all places
necessary to perfect a valid security interest in certain personal property, and
(B) with respect to each other Mortgage Loan, the applicable closing procedures
required that a Uniform Commercial Code financing statement be sent for filing
in such places, and the Responsible Party is not aware of any failure to send
such a financing statement for any such other Mortgage Loan.
<PAGE>
ANNEX C
[RESERVED]
<PAGE>
ANNEX D
SCHEDULE OF EXCEPTIONS
TO REPRESENTATIONS & WARRANTIES
1. Representation and Warranty (i)
i. CPC--Van Dresser Building: John B. Levy Company, Inc. is
paid a monthly broker's strip.
2. Representation and Warranty (vii)
i. AMRESCO--The Phillips Building: Various late mortgage
payments.
3. Representation and Warranty (ix)
i. Archon--Comfort Inn Biloxi and Comfort Suites Biloxi (2
loans): These properties have suffered recent damage from a
hurricane and the amount of insurance proceeds to cover the
damage is currently being negotiated with the insurer.
Borrower's insurance agent has estimated the aggregate
damage to be approximately $250,000. Borrower has not
received an anticipated $75,000 advance from his insurance
company. Of the estimated $250,000 in damage, Borrower
apparently has made only minor repairs. Borrower cannot
begin any of the major repairs without the insurance money
as there is great demand for contractors and they all
require payment in advance.
ii. Daiwa (DFC)--Carriage House Apartments: This property has
suffered damage from a hurricane. The insurance company has
issued a check for $620,467 covering initial damage and
business interruption which amount is being held by the
interim servicer in escrow. Although the Borrower has
forwarded invoices for completed repair work, borrower has
not yet requested any release of the funds being held in
escrow by the interim servicer. Approximately 50% of the
repair work has been completed and the remainder of the
repair work is expected to be completed in May of 1999. In
the event the repairs are not completed by May of 1999,
Borrower is entitled to collect additional rent interruption
insurance.
iii. Daiwa (DFC)--Compasse Pointe Apartments: This property has
suffered damage from a hurricane. The insurance company has
issued a check for $990,862 covering initial damage and
business interruption which amount is being held by the
interim servicer in escrow. Although the Borrower has
forwarded invoices for completed repair work, borrower has
not yet requested any release of the funds being held in
escrow by the interim servicer. Approximately 50% of the
repair work has been completed and the remainder of the
repair work is expected to be completed in May of 1999. In
the event the repairs are not completed by May of 1999,
Borrower is entitled to collect additional rent interruption
insurance.
4. Representation and Warranty (xiv)
i. AMRESCO--Wells Plaza Shopping Center: Above ground storage
tank registration recommended by Phase I (no notice of
violation received) and required post-closing has not been
completed.
5. Representation and Warranty (xix)
i. CPC--Van Dresser Building: John B. Levy Company, Inc. is
paid a monthly broker's strip.
6. Representation and Warranty (xxiii)
a. Outside the boundaries
i. Archon--Emery Park Apartments: Building encroaches onto
utility easement. Deck and pool pump slid past building
line.
ii. Archon--The Hidden Oaks, Azalea Trails, Kentwood (1 loan, 3
properties): Has material encroachments which could not be
insured over.
b. In material violation
i. Archon--The Castro Convertible Buildings: Alterations were
made to the buildings without the requisite approvals of the
New York Building Departments and Landmarks Commission.
Borrower has until 4/15/99 to acquire the approvals.
7. Representation and Warranty (xxvii)
a. (A)
i. Archon--Walnut Business Park: Not all C/Os obtained because
the City of Dallas did not issue or could not find C/Os for
tenants who had been in occupancy for ten or more years.
ii. CPC--Cumberland Airport Center: Shell C/O obtained. Shell
C/O contemplates use for 13 individual units of equal size.
However, property technically has 14 units although there
are only 11 tenants occupying the 14 units. The permitting
department indicated that the property is in violation of
the permit, but that the city will not require compliance or
re-permitting until the property is renovated.
iii. CPC--Seven Courts Apartments: Only 5 of 9 C/Os obtained
because C/Os for older apartment buildings were not
available.
iv. CPC--Harbour Vines Apartments: Only 11 of 14 C/Os obtained
because C/Os for older apartment buildings were not
available.
v. CPC--East Cooper: C/Os have been obtained for the three
major tenants (Pennsylvania House of Furniture, Twin Rivers
Lanes and Fire House Stores) but copies of C/Os for the
other tenants are missing or were never issued.
vi. AMRESCO--Greenbriar Atrium II Office Building: All work
necessary to obtain elevator permit, electrical lock permit,
structural permit and C/O has been completed and such
permits and C/O are expected to be issued shortly.
8. Representation and Warranty (xl)
a. (C)
i. Archon--Walnut Business Park: Opinion letter of Borrower's
counsel is not required for defeasance.
ii. Archon--Woodlands IV & V Business Center: Opinion letter of
Borrower's counsel is not required for defeasance.
9. Representation and Warranty (xlvi)
i. AMRESCO--Greenbriar Atrium II Office Building: All work
necessary to obtain elevator permit, electrical lock permit,
structural permit and C/O has been completed and such
permits and C/O are expected to be issued shortly.
ii. AMRESCO--The Phillips Building: Various late mortgage
payments.
10. Representation and Warranty (xlviii)
i. CPC--Red Oaks Apartments: Tax parcel includes other
property, but Borrower pays taxes on the entire tax parcel
and Lender is escrowing for the full amount of taxes on the
tax parcel.
11. Representation and Warranty (xlix)
a. (D) (1)
i. Archon--Country Villa Cheviot Healthcare: Borrower does not
make this covenant. However, Borrower does covenant to
operate the property "in a prudent manner in [material]
compliance w/ applicable laws and regulations... necessary
for the use and operation of the property and to cause all
licenses, permits... necessary for the use and operation...
to remain in effect."
ii. Archon--Country Villa University Healthcare: Borrower does
not make this covenant. However, Borrower does covenant to
operate the property "in a prudent manner in [material]
compliance w/ applicable laws and regulations... necessary
for the use and operation of the property and to cause all
licenses, permits... necessary for the use and operation...
to remain in effect."
iii. Archon--Bruckner Nursing Home: Borrower does not make this
covenant. However, Borrower does covenant to operate the
property "in a prudent manner in [material] compliance w/
applicable laws and regulations... necessary for the use and
operation of the property and to cause all licenses,
permits... necessary for the use and operation... to remain
in effect."
iv. Archon--Cuero Nursing Center: Borrower does not make this
covenant. However, Borrower does covenant to operate the
property "in a prudent manner in [material] compliance w/
applicable laws and regulations... necessary for the use and
operation of the property and to cause all licenses,
permits... necessary for the use and operation... to remain
in effect."
b. (I)
i. Archon--Cuero Nursing Center: Borrower makes this
representation but not with respect to the prior three (3)
years. Responsible Party has reviewed the survey history for
the prior two (2) years and has not found any violations
that appeared to constitute "substandard quality of care"
(as defined in 42 C.F.R. Section 488.301).
ii. Archon--Country Villa Cheviot Healthcare: Borrower makes
this representation but not with respect to the prior three
(3) years. Responsible Party has reviewed the survey history
for the prior two (2) years and has not found any violations
that appeared to constitute "substandard quality of care"
(as defined in 42 C.F.R. Section 488.301).
iii. Archon--Bruckner Nursing Home: Borrower makes this
representation but not with respect to the prior three (3)
years. Responsible Party has reviewed the survey history for
the prior two (2) years and has not found any violations
that appeared to constitute "substandard quality of care"
(as defined in 42 C.F.R. Section 488.301).
c. (N)
i. Archon--Country Villa Cheviot Healthcare: Representation by
Borrower is limited to best of Borrower's knowledge. An
absolute representation is made to this effect by the
operator in the operator's agreement.
ii. Archon--Country Villa University Healthcare: Representation
by Borrower is limited to best of Borrower's knowledge. An
absolute representation is made to this effect by the
operator in the operator's agreement.
d. (P)
i. Archon--Country Villa Cheviot Healthcare: Loan documents do
not specifically address this representation. However,
Borrower does covenant that the property will be operated in
a "prudent manner" and "as may be necessary for
participation in the Medicare, Medicaid or other applicable
reimbursement programs to remain in effect."
ii. Archon--Country Villa University Healthcare: Loan documents
do not specifically address this representation. However,
Borrower does covenant that the property will be operated in
a "prudent manner" and "as may be necessary for
participation in the Medicare, Medicaid or other applicable
reimbursement programs to remain in effect."
iii. Archon--Bruckner Nursing Home: Loan documents do not
specifically address this representation. However, Borrower
does covenant that the property will be operated in a
"prudent manner" and "as may be necessary for participation
in the Medicare, Medicaid or other applicable reimbursement
programs to remain in effect."
iv. Archon--Cuero Nursing Center: Loan documents do not
specifically address this representation. However, Borrower
covenants that property will be operated in a "prudent
manner" and "as may be necessary for participation in the
Medicare, Medicaid or other applicable reimbursement
programs to remain in effect at the Premises."
January 20, 1999
Addressees Listed on Schedule A
Re: GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
We are rendering this opinion in connection with the issuance on the date
hereof of the GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, 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 Q, Class
R and Class LR (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of January 10, 1999 (the "Pooling and Servicing Agreement"),
among GS Mortgage Securities Corporation II, as seller (the "Seller"), Goldman
Sachs Mortgage Company ("GSMC"), as responsible party, Amresco Capital Limited,
Inc. ("ACLI"), as responsible party, Daiwa Finance Corp. ("DFC"), as responsible
party, Daiwa Real Estate Finance Corp. ("DREFC"), as responsible party, GMAC
Commercial Mortgage Corporation, as master servicer, Lennar Partners, Inc., as
special servicer, LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as
fiscal agent. We have acted as the Seller's special tax counsel in connection
with the aforementioned transaction. Capitalized terms used herein but not
defined herein have the respective meanings given to them in the Pooling and
Servicing Agreement.
In rendering the opinion set forth below, we have examined and relied upon
the originals or copies, certified or otherwise identified to our satisfaction,
of the Pooling and Servicing Agreement, the Loan Sale Agreement, dated as of
January 10, 1999, between GSMC and the Seller, the Loan Sale Agreement, dated as
of January 10, 1999, between ACLI and the Seller, the Loan Sale Agreement, dated
as of January 10, 1999, between DFC and the Seller, the Loan Sale Agreement,
dated as of January 10, 1999, between DREFC and the Seller, the Underwriting
Agreement, dated January 8, 1999, among the Seller, Goldman, Sachs & Co.
("GS&Co.") and Norwest Investment Services, Inc. ("Norwest"), the Purchase
Agreement, dated January 15, 1999, between the Seller and GS&Co., the
Prospectus, dated December 22, 1998 and the Prospectus Supplement, dated January
8, 1999, relating to the offering of the Class A-1, Class A-2, Class X, Class B,
Class C, Class D and Class E Certificates, the Offering Circular, dated January
15, 1999, relating to the offering of the Class F, Class G,
<PAGE>
Class H, Class J, Class R and Class LR Certificates, specimens of the
Certificates, and such certificates, corporate records and other documents,
agreements and instruments, including, among other things, the documents
delivered on the Closing Date, and we have made such examination of matters of
fact and law, as we have deemed necessary as a basis for the opinion hereinafter
expressed. In connection with such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to us as
copies or specimens and the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens. We have also
assumed that all documents, agreements and instruments have been duly
authorized, executed and delivered by all parties thereto, enforceable against
such parties in accordance with their respective terms. As to any facts material
to such opinion that were not known to us, we have relied upon written
certificates and representations of officers and other representatives of the
Seller.
In rendering the opinion set forth below we do not express any opinion
concerning the laws of any jurisdiction other than the Federal income tax laws
of the United States of America.
Based upon the foregoing, assuming that the elections required by Section
860D(b) of the Internal Revenue Code of 1986, as amended (the "Code"), are
properly made, and assuming that the Trust Fund is administered in compliance
with the Pooling and Servicing Agreement as in effect on the Closing Date, and
with any subsequent changes in the law, including any amendments to the Code or
applicable Treasury regulations thereunder, it is our opinion on the Closing
Date and thereafter that (a) the Trust Fund, exclusive of the Excess Interest,
the Default Interest, the Excess Interest Distribution Account, the Class Q
Distribution Account and the Deductible Reserve Account, will qualify for
treatment for Federal income tax purposes as two separate real estate mortgage
investment conduits, as defined in Section 860D of the Code (the "Upper-Tier
REMIC" and the "Lower-Tier REMIC"); (b) the Class A-1 Certificates, Class A-2
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class X Certificates will represent
"regular interests" in the Upper-Tier REMIC and the Class R Certificates will
constitute the sole class of "residual interests" in the Upper-Tier REMIC within
the meaning of the Code; (c) the Lower-Tier Regular Interests will constitute
"regular interests" in the Lower-Tier REMIC and the Class LR Certificates will
constitute the sole class of "residual interests" in the Lower-Tier REMIC within
the meaning of the Code; and (d) the portion of the Trust Fund consisting of the
Excess Interest, the Default Interest, the Excess Interest Distribution Account,
the Class Q Distribution Account and the Deductible Reserve Account will be
classified as a grantor trust under Subpart E, Part I, of Subchapter J of the
Code.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted
<PAGE>
or otherwise referred to by any other person or for any other purpose without
our prior written consent.
Very truly yours,
<PAGE>
SCHEDULE A
GS Mortgage Securities Corporation II
85 Broad Street
New York, New York 10004
Goldman, Sachs & Co.
as representative of the
several underwriters
85 Broad Street
New York, New York 10004
LaSalle National Bank
135 South LaSalle Street, Suite 1740
Chicago, Illinois 60603
Standard & Poor's Rating Services
26 Broadway
New York, New York 10004
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
