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GS MORTGAGE SECURITIES CORPORATION II,
Seller,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer and Special Servicer,
LASALLE NATIONAL BANK,
Trustee,
and
ABN AMRO BANK N.V.,
Fiscal Agent
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POOLING AND SERVICING AGREEMENT
Dated as of May 11, 1998
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 1998-XX XX
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.....................................................
SECTION 1.02. Certain Calculations..............................................
SECTION 1.03. Certain Constructions.............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Loan Sale Agreement...
SECTION 2.02. Acceptance by Custodian and the Trustee...........................
SECTION 2.03. Representations and Warranties of the Seller......................
SECTION 2.04. Representations, Warranties and Covenants of the
Master Servicer and Special Servicer .............................
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests .....................................
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions..................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer; Administration
of the Mortgage Loans ............................................
SECTION 3.02. Liability of the Master Servicer and Special Servicer.............
SECTION 3.03. Collection of Certain Mortgage Loan Payments......................
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts ..................................................
SECTION 3.05. Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution Account;
Excess Interest Distribution Account and Class M
Distribution Account..............................................
SECTION 3.06. Permitted Withdrawals from the Collection and the Class M
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;
Successor Manager ................................................
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.....................................................
SECTION 3.28. Servicing of the Marriott Desert Springs Parent Loan..............
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.....................................................
SECTION 4.02. Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher ..............
SECTION 4.03. Compliance with Withholding Requirements..........................
SECTION 4.04. REMIC Compliance..................................................
SECTION 4.05. Imposition of Tax on the Trust Fund...............................
SECTION 4.06. Remittances; P&I Advances.........................................
SECTION 4.07. Grantor Trust Reporting...........................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..................................................
SECTION 5.02. Registration, Transfer and Exchange of Certificates...............
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.................
SECTION 5.04. Appointment of Paying Agent.......................................
SECTION 5.05. Access to Certificateholders' Names and Addresses.................
SECTION 5.06. Actions of Certificateholders.....................................
SECTION 5.07. Authenticating Agent..............................................
SECTION 5.08. Appointment of Custodians.........................................
ARTICLE VI
THE SELLER, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Seller, the Master Servicer and the
Special Servicer .................................................
SECTION 6.02. Merger or Consolidation of the Master Servicer....................
SECTION 6.03. Limitation on Liability of the Seller, the Master
Servicer and Others ..............................................
SECTION 6.04. Limitation on Resignation of the Master Servicer or
Special Servicer .................................................
SECTION 6.05. Rights of the Seller and the Trustee in Respect of
the Master Servicer and Special Servicer .........................
SECTION 6.06. Master Servicer or Special Servicer as Owner of a Certificate.....
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.................................................
SECTION 7.02. Trustee to Act; Appointment of Successor..........................
SECTION 7.03. Notification to Certificateholders................................
SECTION 7.04. Other Remedies of Trustee.........................................
SECTION 7.05. Waiver of Past Events of Default; Termination.....................
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.................................................
SECTION 8.02. Certain Matters Affecting the Trustee.............................
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.............
SECTION 8.04. Trustee May Own Certificates......................................
SECTION 8.05. Payment of Trustee Fees and Expenses; Indemnification.............
SECTION 8.06. Eligibility Requirements for Trustee..............................
SECTION 8.07. Resignation and Removal of the Trustee............................
SECTION 8.08. Successor Trustee and Fiscal Agent................................
SECTION 8.09. Merger or Consolidation of Trustee................................
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.....................
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent...............
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
SECTION 9.01. Termination; Optional Mortgage Loan Purchase......................
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.....................................................
SECTION 10.02. Limitation on Rights of Certificateholders.......................
SECTION 10.03. Governing Law....................................................
SECTION 10.04. Notices..........................................................
SECTION 10.05. Severability of Provisions.......................................
SECTION 10.06. Notice to the Seller and Each Rating Agency......................
SECTION 10.07. Amendment........................................................
SECTION 10.08. Confirmation of Intent...........................................
SECTION 10.09. No Intended Third-Party Beneficiaries............................
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 M Certificate
Exhibit A-11 Form of Class MX Certificate
Exhibit A-12 Form of Class Q Certificate
Exhibit A-13 Form of Class R Certificate
Exhibit A-14 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Loan Sale Agreement
Exhibit H Form of Summary Report
Exhibit I Marriott Desert Springs Parent Loan Mortgage File
Exhibit J Form of Monthly Distribution Statement
Exhibit K-1 Form of Regulation S Transfer Certificate during Restricted Period
Exhibit K-2 Form of Regulation S Transfer Certificate after Restricted Period
Exhibit L Form of Transfer Certificate for Rule 144A Global Certificate
to Regulation S Global Certificate during Restricted Period
Exhibit M Form of Transfer Certificate for Rule 144A Global Certificate
to Regulation S Global Certificate after Restricted Period
Exhibit N Form of Transfer Certificate of Regulation S Global Certificate
to Rule 144A Global Certificate during Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Global Certificate
during Restricted Period
Exhibit P Form of Omnibus Assignment
Pooling and Servicing Agreement, dated as of May 11, 1998, among GS
Mortgage Securities Corporation II, as Seller, GMAC Commercial Mortgage
Corporation, as Master Servicer and Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Seller intends to sell pass-through certificates to be issued hereunder
in multiple classes which in the aggregate will evidence the entire beneficial
ownership interest in the Trust Fund consisting primarily of the Mortgage Loans.
As provided herein, the Trustee will elect that designated portions of the Trust
Fund, exclusive of the Default Interest, the Class Q Distribution Account, the
Excess Interest, the Excess Interest Distribution Account, the Marriott Desert
Springs Parent Loan, the Class M Collection Account and the Class M Distribution
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 X-0, Xxxxx X-0, Class X, Class B,
Class C, Class D, Class E, Class F and Class G 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 eight classes of uncertificated Lower-Tier Regular Interests issued
under this Agreement (the Class XX-0, Xxxxx XX-0, Class LB, Class LC, Class LD,
Class LE, Class LF and Class LG 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, the Marriott Desert
Springs Parent Loan, the Class M Collection Account and the Class M Distribution
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 the Class M and Class MX Certificates represent undivided beneficial
interests in the Marriott Desert Springs Parent Loan, the Class M Collection
Account and the Class M Distribution Account.
The following table sets forth the designation and aggregate initial
Certificate Principal Amount (or, with respect to the Class X and Class MX
Certificates, Notional Amount) for each Class of Certificates (other than the
Class R, Class LR and Class Q Certificates).
Initial Certificate
Principal Amount or
Class Notional Amount
----- ---------------
Class A-1.............. $ 278,000,000
Class A-2.............. $ 694,315,000
Class X (1)............ $1,148,459,000
Class B................ $ 91,595,000
Class C................ $ 84,549,000
Class D................ $ 98,641,000
Class E................ $ 70,458,000
Class F................ $ 63,411,000
Class G................ $ 28,183,997
Class M (2)............ $ 19,663,552
Class MX (3)........... $ 19,663,552
(1) The initial Notional Amount of the Class X Certificates is equal to the
initial Certificate Principal Amount of the Class A-1, Class A-2, Class B and
Class C Certificates.
(2) The initial Certificate Principal Amount of the Class M Certificates is
equal to the Stated Principal Balance of the Marriott Desert Springs Parent Loan
as of the Cut-Off Date.
(3) The initial Notional Amount of the Class MX Certificates is equal to
the Stated Principal Balance of the Marriott Desert Springs Parent Loan as of
the Cut-Off Date.
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 (other than the Marriott Desert Springs Parent Loan); provided,
however, that in the event that amounts previously allocated as Realized Losses
to a Class of Certificates in reduction of the Certificate Principal Amount
thereof are recovered subsequent to the reduction of the Certificate Principal
Amount of such Class to zero, such Class may receive distributions in respect of
such recoveries in accordance with the priorities set forth in Section 4.01. As
of the Cut-Off Date, the Mortgage Loans have an aggregate Stated Principal
Balance equal to $1,409,152,997 and the Marriott Desert Springs Parent Loan
(which is not included within the definition of "Mortgage Loan") has a Stated
Principal Balance of $19,663,552.
In consideration of the mutual agreements herein contained, the Seller, 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.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Addendum": The addendum setting forth the Class M Pass-Through Rate as
described in the definition thereof.
"Additional Trust Fund Expenses": (i) Special Servicing Fees, Special
Servicing Rehabilitation Fees and Liquidation Fees, (ii) interest in respect of
unreimbursed Advances, (iii) the cost of various default-related or
unanticipated Opinions of Counsel required or permitted to be obtained in
connection with the servicing of the Mortgage Loans and the administration of
the Trust Fund, (iv) unanticipated, non-Mortgage Loan specific expenses of the
Trust Fund, including indemnities and expense reimbursements to the Trustee,
indemnities and expense reimbursements to the Master Servicer, the Special
Servicer and the Seller and federal, state and local taxes, and tax-related
expenses, specifically payable out of the Trust Fund and (v) any other
default-related or unanticipated expense of the Trust Fund not specifically
included in the calculation of Realized Loss for which there is no corresponding
collection from a Borrower; provided, however, that expenses with respect to the
Marriott Desert Springs Parent Loan shall not be considered Additional Trust
Fund Expenses.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed for the number of days from the date on which such Advance was made
through the date of reimbursement of the related Advance or other such amount,
less any amount of interest previously paid on such Advance; provided, that,
with respect to a P&I Advance, in the event that the related Borrower makes
payment of the amount in respect of which such P&I Advance was made with
interest at the Default Rate, the Advance Interest Amount payable to the Master
Servicer, the Trustee or the Fiscal Agent shall be paid (i) first from the
amount of Default Interest paid by the Borrower and (ii) to the extent such
amounts are insufficient therefor, from amounts on deposit in the Collection
Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most recently
published in the "Money Rates" section of The Wall Street Journal, New York
edition, on or before the related Record Date), compounded monthly, as of each
Master Servicer Remittance Date.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officers' Certificate of the Master Servicer, the Special
Servicer or the Seller to determine whether any Person is an Affiliate of such
party.
"Agent Member": Members of, or participants in, the Depository.
"Affiliate Loan": Either of the following: (i) that certain loan made by
Prometheus Mid-Atlantic Holding L.P. to Philadelphia Plaza Associates and
Prometheus Investment Holding, L.P. having a principal balance as of the Cut-Off
Date of approximately $9,250,000; and (ii) that certain Series A preferred
equity interest and Series B preferred equity interest in Commerce Square
Partners - Philadelphia Plaza, L.P.
"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; provided, that the Allocated
Loan Amount for a Mortgaged Property shall not be decreased by the amount of any
release payment made by the related Borrower with respect to any other Mortgaged
Property securing the same Mortgage Loan, to the extent the amount of the
release payment paid by such Borrower with respect to such other Mortgaged
Property is in excess of the Allocated Loan Amount for such other Mortgaged
Property.
"Americold Pool Loan": The Mortgage Loan identified as No. 5 on the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to each Mortgage Loan, the date
set forth below opposite such Mortgage Loan:
Americold Pool Loan...................... May 11, 2008
Crystal City Pool Loan................... November 11, 2007
Green Acres Loan......................... February 11, 0000
Xxxxxxxx Xxxxxx Xxxxxxx Loan............. June 11, 0000
Xxx Xxxxxxxx Xxxxxx Loan................. April 11, 2008
Pier 39 Loan............................. April 11, 2008
Showcase Loan............................ November 11, 2007
Xxxxxxxxxx Pool A Loan................... February 11, 2008
Xxxxxxxxxx Pool B Loan................... February 11, 2008
URS Pool Loan............................ May 11, 2008
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06.
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan as of the last day of the related Collection Period over (b) the
excess of (i) 90% of the sum of the appraised values of the related Mortgaged
Properties as determined by Updated Appraisals obtained by the Special Servicer
(the cost of which shall be advanced by the Master Servicer as a Property
Advance) over (ii) the sum of (A) to the extent not previously advanced by the
Master Servicer, the Trustee or the Fiscal Agent, all unpaid interest on such
Mortgage Loan at a per annum rate equal to its Mortgage Rate, (B) all
unreimbursed Advances, with interest thereon at the Advance Rate in respect of
such Mortgage Loan and (C) all currently due and unpaid real estate taxes,
ground rents, if applicable, and assessments and insurance premiums and all
other amounts due and unpaid with respect to such Mortgage Loan (which taxes,
premiums and other amounts have not been the subject of an Advance by the Master
Servicer, the Trustee or the Fiscal Agent, as applicable). If no Updated
Appraisal has been obtained within the 12 months prior to the first Distribution
Date on or after an Appraisal Reduction Event has occurred, the Special Servicer
shall estimate the value of the related Mortgaged Properties (the "Special
Servicer's Appraisal Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. Within 60
days after the Special Servicer receives notice or is otherwise aware of the
Appraisal Reduction Event, the Special Servicer shall obtain an independent MAI
appraisal, the costs of which shall be paid by the Master Servicer as a Property
Advance. On the first Distribution Date occurring on or after the delivery of
such independent MAI appraisal, the Special Servicer shall adjust the Appraisal
Reduction Amount to take into account such appraisal (regardless of whether the
Updated Appraisal is higher or lower than the Special Servicer's Appraisal
Estimate). Each Appraisal Reduction Amount shall also be adjusted with respect
to the next Distribution Date to take into account any subsequent Updated
Appraisal and annual letter updates, as of the date of each such subsequent
Updated Appraisal or letter update. Upon payment in full or liquidation of any
Mortgage Loan for which an Appraisal Reduction Amount has been determined, such
Appraisal Reduction Amount will be eliminated.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 90 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 and (vi) 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.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Master Servicer shall be responsible for determining whether any assignment
is legally sufficient or in recordable form.
"Assumption Fees": Any fees collected by the Master Servicer or Special
Servicer in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 5.07.
"Available Funds": For a Distribution Date, the sum of (i) all Monthly
Payments, Extended 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 Collection Period
relating to such Distribution Date or relating to a Due Date in such Collection
Period but received by the Master Servicer in a prior Collection Period, (ii)
all other amounts received by the Master Servicer in such Collection 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, and (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 Master Servicer Remittance Date but excluding the
following, to the extent deposited in the Collection Account:
(a) amounts permitted to be used to reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, for previously
unreimbursed Advances and interest thereon as described in Section 3.06(ii) and
(iii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and an amount representing any applicable Special
Servicing Compensation with respect to such Distribution Date;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service transaction fees,
demand fees, beneficiary statement charges, Assumption Fees and similar fees,
and reinvestment earnings on Investment Accounts which the Master Servicer or
the Special Servicer is entitled to retain as additional servicing compensation;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds or the
Repurchase Price received with respect to a Mortgage Loan which represents any
unpaid Servicing Fee, Trustee Fee and Special Servicing Compensation, to which
the Master Servicer, Trustee and the Special Servicer, respectively, are
entitled;
(f) all amounts representing 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), including interest
thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the Collection
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account, the Class Q Distribution Account, the Excess Interest Distribution
Account, the Class M Collection Account, the Class M Distribution Account, the
Interest Reserve Account, any Lock-Box Account, any Reserve Account or any REO
Account or in Permitted Investments in which such funds may be invested;
(h) with respect to all Mortgage Loans other than the Crystal City Pool
Loan and any Distribution Date relating to the one-month period preceding the
Distribution Date in each February and in any January which is in a year which
is not a leap year, an amount equal to the related Withheld Amount pursuant to
Section 3.25;
(i) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(c), 3.18 or 9.01 during the
related Collection Period and subsequent to the date as of which the amount
required to effect such purchase or repurchase was determined;
(j) 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;
(k) Prepayment Premiums;
(l) Default Interest;
(m) Excess Interest; and
(n) all amounts received on or in respect of the Marriott Desert Springs
Parent Loan.
"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 M, Class MX, Class Q and Residual Certificates) is a fraction (A) whose
numerator is the greater of (x) zero and (y) the excess of (i) the Pass-Through
Rate on such Class of Certificates for such Distribution Date over (ii) the sum
of the discount rate used in accordance with the related Loan Documents in
calculating the Prepayment Premiums with respect to such Principal Prepayment
and the Spread Rate for such Class of Certificates, and (B) whose denominator is
the excess of (i) the Mortgage Rate on the related Mortgage Loan over (ii) the
discount rate used in accordance with the related Loan Documents in calculating
the Prepayment Premiums with respect to such Principal Prepayment; provided,
however, that under no circumstances shall the Base Interest Fraction be greater
than one. If such discount rate is greater than the Mortgage Rate on the related
Mortgage Loan, 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 or the Marriott Desert
Springs Parent Loan, any obligor or obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"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 X-0, Xxxxx X-0, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class M, Class MX, 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 MX, 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 and Class G 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).
"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 thereof shall be deemed to be outstanding, provided, that, such
amendment does not relate to compensation of the Master Servicer or the Special
Servicer or 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 A-1
Certificates.
"Class A-1 Component Pass-Through Rate" A per annum rate equal to the WAC
Rate minus 6.312000%.
"Class A-1 Pass-Through Rate": A per annum rate equal to 6.312000%.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-2 hereto.
"Class A-2 Component": With respect to the Class X Certificates, at any
date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Certificate Principal Amount of the Class A-2
Certificates.
"Class A-2 Component Pass-Through Rate": A per annum rate equal to the WAC
Rate minus 6.562000%.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.562000%.
"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 B
Certificates.
"Class B Component Pass-Through Rate": A per annum rate equal to 0.392%.
"Class B Pass-Through Rate": With respect to the initial Distribution Date,
6.798461%, and thereafter, a per annum rate equal to the WAC Rate minus 0.392%.
"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 C
Certificates.
"Class C Component Pass-Through Rate": A per annum rate equal to 0.225%.
"Class C Pass-Through Rate": With respect to the initial Distribution Date,
6.965461%, and thereafter, a per annum rate equal to the WAC Rate minus 0.225%.
"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 Pass-Through Rate": With respect to the initial Distribution Date,
7.190461%, and thereafter, a per annum rate equal to 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 Pass-Through Rate": With respect to the initial Distribution Date,
7.190461%, and thereafter, a per annum rate equal to 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 Pass-Through Rate": With respect to the initial Distribution Date,
7.190461%, and thereafter, a per annum rate equal to the WAC Rate.
"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 Pass-Through Rate": With respect to the initial Distribution Date,
7.190461%, and thereafter, a per annum rate equal to 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 LR 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 LR Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount.
"Class M Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-10 hereto. The Class M Certificates represent a beneficial ownership
interest in the Marriott Desert Springs Parent Loan corresponding to all
principal thereon and interest on the Stated Principal Balance thereof at the
Class M Pass-Through Rate, all proceeds thereof, the Class M Collection Account
and the Class M Distribution Account.
"Class M Collection Account": The account or accounts created and
maintained by the Master Servicer pursuant to Section 3.05(e), which shall be
entitled "GMAC Commercial Mortgage Corporation in trust for LaSalle National
Bank, as Trustee, in trust for Holders of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-XX XX, Class M and
Class MX Certificateholders, Class M Collection Account" and which must be an
Eligible Account.
"Class M Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(e), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-XX XX, Class M and Class MX
Certificateholders, Class M Distribution Account" and which must be an Eligible
Account. The Class M Distribution Account shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Class M Pass-Through Rate": A per annum rate as set forth in the Addendum.
If the Servicing Fee Rate on the Marriott Desert Springs Parent Loan is
increased to 0.399% per annum or if the MDSPL Interest Rate is decreased in
connection with a modification of the Marriott Desert Springs Parent Loan, the
Class M Pass-Through Rate will be decreased by 50% of such increase in the
Servicing Fee Rate or decrease in the MDSPL Interest Rate, as the case may be.
If the MDSPL Interest Rate is decreased in connection with a modification
of the Marriott Desert Springs Parent Loan, the Class M Pass-Through Rate will
be decreased by a 50% share of the decrease in the MDSPL Interest Rate.
"Class M Option Price": As defined in Section 3.28(f).
"Class MX Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-11 hereto. The Class MX Certificates represent a beneficial ownership
interest in the Marriott Desert Springs Parent Loan corresponding to interest
thereon on the Stated Principal Balance thereof at the Class MX Pass-Through
Rate, and all proceeds thereof, including the portion of the Class M Collection
Account and the Class M Distribution Account representing such proceeds.
"Class MX Pass-Through Rate": A per annum rate equal to the excess of the
MDSPL Interest Rate over the sum of the Class M Pass-Through Rate and the
Servicing Fee Rate on the Marriott Desert Springs Parent Loan. If the Servicing
Fee Rate on the Marriott Desert Springs Parent Loan is increased to 0.399% per
annum or if the MDSPL Interest Rate is decreased in connection with a
modification of the Marriott Desert Springs Parent Loan, the Class MX
Pass-Through Rate will be decreased by 50% of such increase in the Servicing Fee
Rate or decrease in the MDSPL Interest Rate, as the case may be.
"Class Q Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-14 hereto and entitled to the distributions payable thereto pursuant
to Section 4.01(a). The Class Q Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount. The Class Q Certificates
represent a beneficial ownership interest in the Default Interest, subject to
the obligation to pay interest on Advances.
"Class Q Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(c), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-XX XX, Class Q Certificateholders, Class
Q Distribution Account" and which must be an Eligible Account. The Class Q
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Class R Certificate": Any Certificate executed and authenticated by the
Trustee or the Authenticating Agent in substantially the form set forth in
Exhibit A-15 hereto. The Class R Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional Amount.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in substantially the
form set forth in Exhibit A-3 hereto.
"Class X Pass-Through Rate": A per annum rate equal to the excess of (i)
the WAC Rate over (ii) 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, and the Class C Component Pass-Through Rate,
weighted on the basis of their respective Notional Amounts.
"Closing Date": May 21, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Co-Lender Agreement": The agreement, dated as of the Closing Date, among
the Trustee, GMACCM and GSMC, relating to the administration of the Americold
Pool Loan and the GSMC Additional Loan.
"Collection Account": The account or accounts created and maintained by the
Master Servicer pursuant to Section 3.05(a), which shall be entitled "GMAC
Commercial Mortgage Corporation in trust for LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-XX XX, Collection Account" and
which must be an Eligible Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan and the Marriott Desert Springs Parent 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 in
June 1998, 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.
"Component": Any of the Class A-1 Component, Class A-2 Component, Class B
Component and Class C Component.
"Corporate Trust Office": The principal office of the Trustee located at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention:
Asset Backed Securities Trust Services Group-GS98-XX XX, 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 Subordinate Certificates has been reduced to zero.
"Crystal City Pool Loan": The Mortgage Loan identified as No. 10 on the
Mortgage Loan Schedule.
"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": With respect to each of the Mortgage Loans, May 11, 1998,
and, with respect to the Marriott Desert Springs Parent Loan, May 12, 1998.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of (i) the related Default Rate over (ii) the
sum of the related Mortgage Rate plus, if applicable, the Excess Rate for such
Mortgage Loan. The Default Interest shall not be an asset of the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment, as
such rate is set forth on the Mortgage Loan Schedule.
"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.
"Directing Class": As defined in Section 3.27.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space "for occupancy only" within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10 percent of the
construction of such building or improvement was completed before default became
imminent), other than through an Independent Contractor; provided, however, that
the Special Servicer, on behalf of the Trust Fund, shall not be considered to
Directly Operate an REO Property solely because the Special Servicer, on behalf
of the Trust Fund, establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property or takes other actions
consistent with Section 1.856-4(b)(5)(ii) of the regulations of the United
States Department of the Treasury.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Date": The second Business Day following the 11th day of each
month, commencing on June 15, 1998, and with respect to the Class M and Class MX
Certificates, the second Business Day after the 12th day of each month (or, if
the 12th day is not a Business Day, the third Business Day immediately following
the 12th day of the month), commencing on June 16, 1998.
"Due Date": With respect to any Mortgage Loan and the Marriott Desert
Springs Parent Loan, the day each month set forth in the related Note on which
the Monthly Payment is due and payable, and with respect to any Distribution
Date, the Due Date occurring in the month in which such Distribution Date
occurs.
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the sum of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date.
"Eligible Account": Either (i) (A) an account or accounts maintained with
either a federal or state chartered depository institution or trust company the
long-term unsecured debt obligations (or short-term unsecured debt obligations
if the account holds funds for less than 30 days) or commercial paper of which
are rated by each of the Rating Agencies in its highest rating category at all
times (or, in the case of the REO Account, Collection Account, Interest Reserve
Account, Class M Collection 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 Fitch (if
rated by Fitch) and "Aa3" by Moody's or, if applicable, the short-term rating
equivalent thereof, which is at least "F1+" by Fitch (if rated by Fitch) and
"P-1" by Moody's, as the case may be) or (B) as to which the Master Servicer or
the Trustee, as applicable, has received written confirmation from each of the
Rating Agencies that holding funds in such account would not cause any Rating
Agency to qualify, withdraw or downgrade any of its ratings on the Certificates
or (ii) a segregated trust account or accounts maintained with a federal or
state chartered depository institution or trust company acting in its fiduciary
capacity which, in the case of a state chartered depository institution or trust
company is subject to regulations substantially similar to 12 C.F.R. ss.9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority, or (iii)
any other account that, as evidenced by a written confirmation from each Rating
Agency, would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates, which may
be an account maintained with the Trustee or the Master Servicer; provided,
however, that accounts held at First Union Bank, PNC Bank, N.A., The Chase
Manhattan Bank, Fleet Bank, N.A. and Banc One Texas, 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 (A) (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, and (B) in the case of the Class M and Class MX
Certificates, also a Permitted Class M Transferee.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the related Originator in
connection with the origination of the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b).
"Escrow Payment": Any payment made by any Borrower to the Master Servicer
pursuant to the related Mortgage, Lock-Box Agreement or Loan Agreement for the
account of such Borrower for application toward the payment of taxes, insurance
premiums, assessments, ground rents and similar items in respect of the related
Mortgaged Property.
"Euroclear": Xxxxxx 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 Mortgage 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 Mortgage Rate. The
Excess Interest shall not be an asset of the Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate account or accounts by the Trustee pursuant
to Section 3.05(d), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-XX XX, 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 by which the Prepayment Interest Shortfall with
respect to all Principal Prepayments received during the related Collection
Period exceeds the aggregate Servicing Fee (minus the Trustee Fee) available to
be paid to the Master Servicer for such Distribution Date.
"Excess Rate": With respect to each Mortgage Loan, the excess of the
related Revised Mortgage Rate over the related Mortgage Rate, each as set forth
in the Mortgage Loan Schedule, and which shall be no greater than 2.00% per
annum.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A Form 8-K, Form 10-K, Form 10-Q or Form 12b-25 to
be filed with the Commission, under cover of the related form required by the
Exchange Act.
"Extended Monthly Payment": With respect to any extension of a Mortgage
Loan as to which any principal balance and accrued interest remains unpaid on
its Maturity Date (such unpaid amount, a "Balance"), an amount equal to (a) a
deemed principal portion of a revised monthly payment (which will be calculated
based on an amortization schedule which would fully amortize the applicable
Balance over a term that does not extend past the date occurring two years prior
to the Rated Final Distribution Date (commencing on the Maturity Date of such
Mortgage Loan) and an interest rate no less than the Mortgage Rate with respect
to such Mortgage Loan), and (b) interest at the applicable Default Rate;
provided, however, that the Special Servicer may agree that the Extended Monthly
Payments may include interest at a rate lower than the related Default Rate
(but, except as otherwise provided herein, not lower than the related Mortgage
Rate).
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"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, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or any Mortgage Loan subject to repurchase by the related
Responsible Party pursuant to Section 2.03(c), the recovery of all Insurance
Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments
or recoveries (including proceeds of the final sale of any REO Property) which
the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the
Special Servicer), in its reasonable judgment as evidenced by a certificate of a
Servicing Officer delivered to the Trustee and the Custodian (and the Master
Servicer, if the certificate is from the Special Servicer), expects to be
finally recoverable. The Master Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Master Servicer hereunder and the transfer of such records to
a successor Master Servicer and (ii) five years following the termination of the
Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Financial Report": A Form 8-K including as exhibits under Item 7 of Form
8-K the financial statements and other financial information required to be
filed as described in Sections 3.20 and 4.02.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation, in
its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch IBCA, Inc., or its successor in interest.
"Fixed Voting Rights Percentage": As defined in the definition of "Voting
Rights."
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Foreclosure Date": As defined in Section 3.28(d).
"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 10-Q": A Quarterly Report in Form 10-Q 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 and Class G Certificates.
"GMACCM": GMAC Commercial Mortgage Corporation, a California corporation.
"Grantor Trust": A segregated asset pool within the Trust Fund consisting
of the Default Interest, Excess Interest, the Marriott Desert Springs Parent
Loan and amounts held from time to time in the Class Q Distribution Account, the
Excess Interest Distribution Account, the Class M Collection Account and the
Class M Distribution Account.
"Green Acres Loan": The Mortgage Loan identified as No. 4 on the Mortgage
Loan Schedule.
"GSMC": Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership.
"GSMC Additional Loan": As defined in Section 2.01.
"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.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Indemnifying Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Seller, the Trustee, the Master
Servicer, the Special Servicer, any Borrower or any Affiliate thereof, and (ii)
is not connected with any such Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer and the
Trustee has been delivered to the Trustee to that effect) or (ii) any other
Person (including the Master Servicer and the Special Servicer) if the Master
Servicer, on behalf of itself and the Trustee, has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code) or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
form without interest coupons.
"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, the Class M Certificates or any Class of
Lower-Tier Regular Interests, an amount equal to interest for the related
Interest Accrual Period at the Pass-Through Rate for such Class on the related
Certificate Principal Amount (provided, that for interest accrual purposes any
distributions in reduction of Certificate Principal Amount or reductions in
Certificate Principal Amount as a result of allocations of Realized Losses on
the Distribution Date occurring in an Interest Accrual Period shall be deemed to
have been made on the first day of such Interest Accrual Period). With respect
to any Distribution Date and the Class X and Class MX 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 applicable Notional
Amount of such Class (provided, that for interest accrual purposes any
distributions in reduction of Notional Amount or reductions in Notional Amount
as a result of allocations of Realized Losses on the Distribution Date occurring
in an Interest Accrual Period shall be deemed to have been made on the first day
of such Interest Accrual Period). Calculations of interest due in respect of the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months.
"Interest Accrual Period": With respect to any Distribution Date and with
respect to each Class of Certificates, the calendar month preceding the month in
which such Distribution Date occurs. Each Interest Accrual Period with respect
to each Class of Certificates is assumed to consist of 30 days.
"Interest Distribution Amount": With respect to any Distribution Date and
each Class of Regular Certificates and Lower-Tier Regular Interests, an amount
equal to (A) the sum of (i) the Interest Accrual Amount for such Distribution
Date and (ii) the Interest Shortfall, if any, for such Distribution Date, less
(B) any Excess Prepayment Interest Shortfall allocated to such Class on such
Distribution Date pursuant to Section 4.01(g). With respect to the Class M and
Class MX Certificates, the Interest Distribution Amount is 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 or Notional Amount,
(provided, that for interest accrual purposes any distributions in reduction of
Certificate Principal Amount or Notional Amount or reductions in Certificate
Principal Amount or Notional Amount as a result of allocations of Realized
Losses on the Distribution Date occurring in an Interest Accrual Period shall be
deemed to have been made on the first day of such Interest Accrual Period).
"Interest Reserve Account": The account created and maintained by the
Trustee pursuant to Section 3.25, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through Certificates, Series 1998-XX XX, Interest
Reserve Account" and which shall be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date for any Class
of Regular Certificates and Lower-Tier Regular Interests is the sum of (a) the
excess, if any, of (i) the Interest Distribution Amount for such Class for the
immediately preceding Distribution Date, over (ii) all distributions of interest
(other than Excess Interest) made with respect to such Class on the immediately
preceding Distribution Date, and (b) to the extent permitted by applicable law,
(i) other than in the case of the Class X Certificates, one month's interest on
any such excess at the Pass-Through Rate applicable to such Class for the
current Distribution Date, and (ii) in the case of the Class X Certificates, one
month's interest on any such excess at the WAC Rate for such Distribution Date.
"Interested Person": As of any date of determination, the Seller, the
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Borrower, any manager of a Mortgaged Property, any Independent Contractor
engaged by the Special Servicer pursuant to Section 3.17, or any Person known to
a Responsible Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Liquidation Expenses": Expenses incurred by the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest on the related Property Advances at the Advance Rate
not previously reimbursed from collections or other proceeds therefrom.
"Liquidation Fee": With respect to any Mortgage Loan or REO Property which
is sold or transferred or otherwise liquidated, an amount equal to 0.75% of the
amount equal to (a) the Liquidation Proceeds of such Mortgage Loan or REO
Property (other than any such proceeds specified in clause (i) of the definition
of Liquidation Proceeds) minus (b) any broker's commission and related brokerage
referral fees.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan or the Marriott Desert
Springs Parent Loan, the loan agreement, if any, between the related Originator
and the Borrower, pursuant to which such Mortgage Loan or the Marriott Desert
Springs Parent Loan, as the case may be, were made.
"Loan Documents": With respect to any Mortgage Loan or the Marriott Desert
Springs Parent Loan, the documents executed or delivered in connection with the
origination of such Mortgage Loan or the Marriott Desert Springs Parent Loan, as
the case may be, or subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan or the Marriott Desert
Springs Parent Loan, the loan number by which such Mortgage Loan or the Marriott
Desert Springs Parent Loan, as the case may be, 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 Loan Sale Agreement, dated as of the Cut-Off
Date, by and between the Seller and GSMC, a copy of which is attached hereto as
Exhibit G.
"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 or the
Marriott Desert Springs Parent 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 or the Marriott Desert
Springs Parent Loan, the period of time specified in the related Loan Documents
during which voluntary prepayments by the related Borrower are prohibited.
"Lower-Tier Distribution Account": The account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in trust
for Holders of GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 1998-XX XX, 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 and Class LG 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.
"Marriott Desert Springs Loan": The Mortgage Loan identified as No. 8 on
the Mortgage Loan Schedule.
"Marriott Desert Springs Parent Borrower": Marriott DSM LLC, as borrower
with respect to the Marriott Desert Springs Parent Loan.
"Marriott Desert Springs Parent Loan": The mortgage loan identified as No.
11 on the Mortgage Loan Schedule.
"Marriott Desert Springs Pledged Collateral": All of the limited liability
company interests in DS Hotel LLC.
"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 and the Marriott Desert
Springs Parent Loan, the maturity date as set forth on the Mortgage Loan
Schedule.
"MDSPL Debt Service Amount": With respect to the Marriott Desert Springs
Parent Loan and any Due Date, the required payment of principal and interest
pursuant to the terms of the related Loan Documents.
"MDSPL Interest Rate": The per annum rate at which interest accrues on the
Marriott Desert Springs Parent Loan as stated in the related Note; provided that
for purposes of determining the Pass-Through Rate of the Class MX Certificates,
the MDSPL Interest Rate for any Interest Accrual Period preceding the applicable
Due Date, will be the annualized rate at which interest would have to accrue in
respect of the Marriott Desert Springs Parent 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 the Marriott Desert Springs Parent
Loan during such Interest Accrual Period at the MDSPL Interest Rate.
"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": Xxxxx'x Investors Service, 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 (i) any Mortgage Loan, the mortgage
documents listed in Section 2.01(i) through (xv) 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 and (ii) the Marriott
Desert Springs Parent Loan, the documents set forth on Exhibit I hereto.
"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, but shall not include the
Marriott Desert Springs Parent Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans and the Marriott
Desert Springs Parent Loan 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 and the Marriott Desert Springs
Parent Loan, as applicable:
(a) the Borrower's name;
(b) the Monthly Payment in effect as of the Cut-Off Date;
(c) the Mortgage Rate (separately identifying the Default Rate, the Excess
Rate and the Revised Mortgage Rate, if any), including the interest calculation
convention (i.e., "30/360" or "actual/360") and the MDSPL Interest Rate;
(d) the Net Mortgage Rate in effect at the Cut-Off Date;
(e) the original principal balance;
(f) [Reserved]
(g) the original term to stated maturity, remaining term to stated
maturity, and Maturity Date;
(h) the original and remaining amortization terms;
(i) the Stated Principal Balance as of the Cut-Off Date;
(j) the loan-to-value ratio as of the Cut-Off Date;
(k) the applicable Servicing Fee Rate as of the Cut-Off Date;
(l) the applicable Loan Number; and
(m) the number of Mortgaged Properties securing such Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (a) and (d) above for all of the Mortgage Loans.
"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 all the
Mortgage Loans other than the Crystal City Pool Loan (i) the Mortgage Rate for
the one-month period preceding the Due Dates in January and February in any year
which is not a leap year and in February in any year which is a leap year, shall
be determined net of any Withheld Amounts and (ii) the Mortgage Rate for the
one-month period preceding the Due Date in March shall be determined taking into
account the addition of any such Withheld Amounts.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain Mortgage Loans, a leasehold estate, or both a leasehold estate and a
fee simple estate, or a leasehold estate in a portion of the property and a fee
simple estate in the remainder, in a parcel of land improved by a commercial
property, together with any personal property, fixtures, leases and other
property or rights pertaining thereto. With respect to the Marriott Desert
Springs Parent Loan, the Mortgaged Property shall be the Marriott Desert Springs
Pledged Collateral.
"Net Default Interest": As defined in Section 3.05(c).
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other Loan Documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan 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; provided, however, that for purposes of
calculating any Pass-Through Rate (other than the Class M and Class MX
Pass-Through Rate), the Net Mortgage Rate of such Mortgage Loan shall be
determined without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan, whether agreed to by the Special Servicer or resulting
from bankruptcy, insolvency or similar proceeding involving the related
Borrower.
"Net REO Proceeds": With respect to each REO Property and any related REO
Mortgage Loan, REO Proceeds with respect to such REO Property or REO Mortgage
Loan 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.
"Non-U.S. Person": A person that is not a citizen or resident of the United
States, a corporation, partnership, or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate whose income 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
United States fiduciaries have the authority to control all substantial
decisions of such trust.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which,
in the good faith business judgment of the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, will not or, in the
case of a proposed Advance, would not be ultimately recoverable from late
payments, Insurance Proceeds, Liquidation Proceeds and other collections on or
in respect of the related Mortgage Loan. The judgment or determination by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent that it
has made a Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance shall be evidenced in the case of the Master
Servicer or Special Servicer, by a certificate of a Servicing Officer delivered
to the Trustee, the Fiscal Agent, the Seller and, in the case of the Special
Servicer, to the Master Servicer, and in the case of the Trustee or the Fiscal
Agent, by a certificate of a Responsible Officer of the Trustee or Fiscal Agent,
as applicable, delivered to the Seller (and the Trustee if the certificate is
from the Fiscal Agent), which in each case sets forth such judgment or
determination and the procedures and considerations of the Master Servicer,
Special Servicer, Trustee or Fiscal Agent, as applicable, forming the basis of
such determination (including, but not limited to, information selected by the
Person making such judgment or determination in its good faith discretion, such
as related income and expense statements, rent rolls, occupancy status, property
inspections, Master Servicer, Special Servicer, Trustee or Fiscal Agent
inquiries, third party engineering and environmental reports, and an appraisal
conducted by an MAI appraiser in accordance with MAI standards or any Updated
Appraisal thereof conducted within the past 12 months; copies of such documents
to be included with the certificate of a Responsible Officer). Any determination
of non-recoverability made by the Master Servicer may be made without regard to
any value determination made by the Special Servicer other than pursuant to an
Updated Appraisal. Any determination of non-recoverability made by the Master
Servicer with respect to the Americold Pool Loan shall also take into account
the outstanding principal balance and other amounts owing with respect to the
GSMC Additional Loan. In addition, upon the determination by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent that an Advance
with respect to any Mortgage Loan would be a Nonrecoverable Advance, any future
Advances with respect to such Mortgage Loan shall be deemed to be Nonrecoverable
Advances until notice to the contrary is received from the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as the case may be.
"Note": With respect to any Mortgage Loan and the Marriott Desert Springs
Parent 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 or the Marriott Desert Springs Parent 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 XX-0, Xxxxx XX-0, Class LB and Class LC
Interests, corresponding to the Certificate Principal Amounts of the Class A-1,
Class A-2, Class B and Class C 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, (b) in the case of each Component, the amount set forth in the
applicable definition thereof and (c) with respect to the Class MX Certificates,
a notional principal amount equal to the Stated Principal Balance of the
Marriott Desert Springs Parent Loan 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.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer or the Special Servicer, as the case may be, customarily
performing functions similar to those performed by any of the above designated
officers and also with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject, or an authorized officer of the Seller, and
delivered to the Seller, the Trustee or the Master Servicer, as the case may be.
"One Commerce Square Loan": The Mortgage Loan identified as No. 7 on the
Mortgage Loan Schedule.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Seller, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor"), (c)
qualification of the Grantor Trust as a grantor trust or (d) a resignation of
the Master Servicer pursuant to Section 6.04, must be an opinion of counsel who
is Independent of the Seller, the Special Servicer and the Master Servicer.
"Originator": Each of GSMC with respect to the Americold Pool Loan, the URS
Pool Loan, the Green Acres Loan, the One Commerce Square Loan, the Pier 39 Loan,
the Xxxxxxxxxx Pool A Loan, the Xxxxxxxxxx Pool B Loan and the Marriott Desert
Springs Parent Loan, and GMACCM with respect to the Crystal City Pool Loan, the
Marriott Desert Springs Loan and the Showcase Loan.
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to but without duplication,
payment or reimbursement of interest thereon at the Advance Rate through the
date of payment or reimbursement.
"Pass-Through Rate": Each of the Class A-1 Pass-Through Rate, the Class A-2
Pass-Through Rate, the Class 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 M Pass-Through Rate and the Class MX 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,
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 systemwide 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, with maturities of not more than 365 days, 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 Xxxxx'x or Fitch, otherwise acceptable to Xxxxx'x
or Fitch, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned
to the Certificates); provided, however, that the investments
described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change, (B) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest
rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(v) demand and time deposits in, or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company,
savings and loan association or savings bank, the short term
obligations of which are rated in the highest short term rating
category by each Rating Agency (or, if not rated by Xxxxx'x or
Fitch, otherwise acceptable to Xxxxx'x or Fitch, as applicable,
as confirmed in writing that such investment would not, in and
of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates);
provided, however, that the investments described in this clause
must (A) have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread
(if any) and must move proportionately with that index, and (C)
such investments must not be subject to liquidation prior to
their maturity;
(vi) debt obligations with maturities of not more than 365 days rated
by each Rating Agency (or, if not rated by Xxxxx'x or Fitch,
otherwise acceptable to Xxxxx'x or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates) in its
highest long-term unsecured rating category; provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) with maturities of not more than 365 days and
that is rated by each Rating Agency (or, if not rated by Xxxxx'x
or Fitch, otherwise acceptable to Xxxxx'x or Fitch, as
applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates) in its highest short-term unsecured 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
short-term unsecured debt ratings category (or, if not rated by
Xxxxx'x or Fitch, otherwise acceptable to Xxxxx'x or Fitch, as
applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the
Certificates); and
(ix) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment,
provided that each Rating Agency has confirmed in writing to the
Master Servicer, Special Servicer or Trustee, as applicable,
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates;
provided, however, that, in the judgment of the Master Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (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.
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 Class M Transferee": With respect to a Class M or Class MX
Certificate, (a) Xxxxxxx, Sachs & Co. or any affiliate thereof, (b) any
insurance company, commercial bank or savings association, in each case having
(i) at least $250 million of capital, statutory surplus or shareholder's equity,
as applicable, (ii) at least $12 billion of total assets, (iii) experience in
making commercial real estate loans, and (iv) a long-term unsecured credit
rating of at least Baa3 from Xxxxx'x, or (c) such other Persons as may be
approved in writing by each Rating Agency.
"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.
"Pier 39 Loan": The Mortgage Loan identified as No. 6 on the Mortgage Loan
Schedule.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that all of the Mortgage Loans
prepay on their respective Anticipated Repayment Dates.
"Prepayment Interest Shortfall": With respect to any Distribution Date and
any Mortgage Loan, is equal to the amount of any shortfall in collections of
interest, adjusted to the applicable Net Mortgage Rate, resulting from a
Principal Prepayment on such Mortgage Loan during the related Collection Period
and prior to the Due Date in such Collection Period.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
the receipt of certain Unscheduled Payments (other than an amount paid in
connection with the release of the related Mortgaged Property through
defeasance), which are intended to compensate the holder of the related Note for
prepayment.
"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 all Extended Monthly Payments 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;
(iii) the principal component of any payments on any Mortgage Loan
received on or after the Maturity Date thereof in the related
Collection Period, net of the principal portion of any
xxxxxxxxxxxx X&X Advances related to such Mortgage Loan;
(iv) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan received or applied during the related
Collection Period, net of the principal portion of any
xxxxxxxxxxxx X&X Advances related to such Mortgage Loan; and
(v) 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 Shortfall": For any Distribution Date and any Mortgage Loan, 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 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 and Class G
Certificates so long as any such Class of Certificates is registered in the name
of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the Master
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, pursuant to Section 3.04 or Section 3.22, as applicable. Each
reference to the payment or reimbursement of a Property Advance shall be deemed
to include, whether or not specifically referred to, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such Advance through and including the date of payment or reimbursement.
"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 (i) the Trust Fund exclusive of the Trust REMICs (in the case of
the Marriott Desert Springs Parent Loan), or (ii) the Lower-Tier REMIC (in
respect of the Mortgage Loans), in each case to be advanced by the Master
Servicer, the Special Servicer or the Trustee, as applicable.
"Public Global Certificate": Each of the Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class X Certificates so long as any such Class of
Certificates is registered in the name of a nominee of the Depository.
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": As used in Sections 3.08 and 5.08, in the case of (i)
all policies not referred to in clause (ii) below, (a) an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction and whose claims paying ability is rated (x) in one of
the three highest applicable rating categories by at least two nationally
recognized statistical rating organizations, and (y) either "A" by Fitch or at
least A-IX by Best's Rating Guide, or (b) a company approved in the Loan
Documents for any particular Mortgage Loan, and (ii) in the case of the fidelity
bond and the errors and omissions insurance required to be maintained pursuant
to Section 3.08(c), shall have a claim paying ability rated by each Rating
Agency (and if such company is not rated by Fitch, is rated A-IX by Best's Key
Rating Guide) no lower than two ratings categories (without regard to pluses or
minuses) lower than the highest rating of any outstanding Class of Certificates
from time to time, but in no event lower than "BBB" by Fitch and "Baa2" by
Xxxxx'x unless in the case where such insurance is not rated by one or more
Rating Agencies or where such insurance has a claims paying ability rated by one
or more Rating Agencies in a rating category lower than required herein, either
(a) such insurer's obligations are guaranteed or backed by a company having such
a claim-paying ability rating, or (b) each such Rating Agency has confirmed in
writing that obtaining the related insurance from an insurance company that is
not rated by such Rating Agency (subject to the foregoing exceptions) or that
has a lower claims paying ability than such requirements shall not result, in
and of itself, in a downgrade, qualification or withdrawal of the then current
ratings by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar successor provision).
"Rated Final Distribution Date": The Distribution Date occurring in April
2031.
"Rating Agency": Any of Xxxxx'x or Fitch. References herein to the highest
long-term unsecured debt rating category of Fitch shall mean "AAA" and of
Xxxxx'x shall mean "Aaa" and in the case of any other rating agency shall mean
such highest rating category or better without regard to any plus or minus or
numerical qualification.
"Rating Agency Monitoring Fee": The annual monitoring and surveillance fees
charged by the Rating Agencies, plus any fees charged by the Rating Agencies in
connection with assumptions of Mortgage Loans or written confirmations obtained
from such Rating Agencies relating to the ratings of the Certificates.
"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 the aggregate Certificate Principal Amount of the Certificates (other
than the Class M Certificates) after giving effect to distributions on such
Distribution Date exceeds 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.
With respect to the Class M Certificates and any Distribution Date, Realized
Loss shall mean the amount, if any, by which the Certificate Principal Amount of
the Class M Certificates after giving effect to distributions on such
Distribution Date exceeds the Stated Principal Balance of the Marriott Desert
Springs Parent Loan after giving effect to any payments of principal received
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 X, Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F and Class G 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.
"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
"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.
"Repurchase Price": With respect to a Mortgage Loan or the Marriott Desert
Springs Parent Loan shall be equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan or the
Marriott Desert Springs Parent Loan as of the date of purchase;
(ii) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate or, with respect to the Marriott Desert
Springs Parent Loan, at the related interest rate thereon, in
effect from time to time, to but not including the Due Date in
the Collection Period of purchase;
(iii) all related unreimbursed Property Advances plus accrued and
unpaid interest on all related Advances at the Advance Rate and,
with respect to the Marriott Desert Springs Parent Loan, any
costs and expenses currently reimbursable to the Master Servicer
or Trustee with respect thereto, 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 GSMC and GMACCM, in their capacity of making
certain representations and warranties in the Loan Sale Agreement and
Responsible Party Agreement, respectively.
"Responsible Party Agreement": That certain Responsible Party Agreement,
dated as of May 11, 1998, between GMACCM and GSMC.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the Underwriter and any other distributor (as
defined in Regulation S) of the Certificates, and (b) the Closing Date.
"Revised Mortgage Rate": With respect to any Mortgage Loan, the revised
Mortgage Rate on each such Mortgage 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.
"Scheduled Final Distribution Date": The Distribution Date occurring in
April 2028.
"Securities Legend": With respect to each Rule 144A Global Certificate,
Residual Certificate or any Individual Certificate, the legend set forth in, and
substantially in the form of, Exhibit F hereto.
"Seller": GS Mortgage Securities Corporation II, a Delaware corporation,
and its successors and assigns.
"Sequential Pay Certificates": The Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F and Class G Certificates, collectively.
"Servicing Fee": With respect to each Mortgage Loan and the Marriott Desert
Springs Parent Loan and for any Distribution Date, an amount equal to the
product of (i) one-twelfth of the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan or the Marriott Desert Springs Parent
Loan, as applicable; 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 or
Marriott Desert Springs Parent 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 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 up to the amount sufficient to fully
offset such Prepayment Interest Shortfalls.
"Servicing Fee Rate": A rate equal to: (a) with respect to the URS Pool
Loan, 0.0190% per annum; (b) with respect to the Xxxxxxxxxx Pool B Loan, 0.0440%
per annum; (c) with respect to the Xxxxxxxxxx Pool A Loan, 0.0440% per annum;
(d) with respect to the Green Acres Loan, 0.0190% per annum; (e) with respect to
the Americold Pool Loan, 0.0190% per annum; (f) with respect to the Pier 39
Loan, 0.0290% per annum; (g) with respect to the One Commerce Square Loan,
0.0165% per annum; (h) with respect to the Marriott Desert Springs Loan, 0.0490%
per annum; (i) with respect to the Showcase Loan, 0.0440% per annum; (j) with
respect to the Crystal City Pool Loan, 0.0390% per annum; and (k) with respect
to the Marriott Desert Springs Parent Loan, except as set forth in clause (ii),
0.0490% per annum; and (ii) from and after the date the Master Servicer
forecloses upon the Marriott Desert Springs Pledge Collateral, 0.3990% per
annum.
"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 or Special Servicer's obligation, as
applicable, to make Advances; or
(iv) the right of the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may
be, to receive reimbursement of costs, or the sufficiency of any
compensation for its services hereunder or with respect to any
particular transaction;
provided, however, that in the event of any conflict of interest between the
interests of the holders of Certificates other than the Class M and Class MX
Certificates and the interests of the holders of the Class M and Class MX
Certificates, subject to Section 3.28(a), the Master Servicer shall service the
Mortgage Loans solely in the best interests of the holders of the Certificates
other than the Class M and Class MX Certificates in accordance with the terms of
this Servicing Standard.
With respect to the Marriott Desert Springs Parent Loan, the "Servicing
Standard" shall be the standard set forth in Section 3.28(a) hereof.
"Showcase Loan": The Mortgage Loan identified as No. 9 on the Mortgage Loan
Schedule.
"Special Event Report": As defined in Section 3.20.
"Special Servicer's Appraisal Estimate": As defined in the definition of
Appraisal Reduction Amount.
"Special Servicer": GMACCM or its successor in interest, or any successor
Special Servicer appointed as provided herein.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Special Servicing Fee, the Special Servicing 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 0.35% per annum.
"Special Servicing 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 0.75% of the highest Stated Principal Balance of
such Mortgage Loan while it was a Specially Serviced Mortgage Loan; provided,
however, that such Special Servicing Rehabilitation Fee shall be due only once
for each Mortgage Loan during the term of this Agreement.
"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);
(ii) the Master Servicer, the Trustee or the Fiscal Agent,
individually or collectively, have made four consecutive P&I
Advances (regardless of whether such P&I Advances have been
reimbursed);
(iii) 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;
(iv) 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;
(v) the Master Servicer has received notice of a foreclosure or
threatened foreclosure of any lien on the Mortgaged Property
securing such Mortgage Loan;
(vi) 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
(vii) 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) and (ii)
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 (iii), (iv), (v)
and (vii) 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 (vi) above, when
such default is cured;
provided, in any case, that at that time no circumstance identified in clauses
(i) through (vii) above exists that would cause the Mortgage Loan to continue to
be characterized as a Specially Serviced Mortgage Loan.
"Spread Rate": The Spread Rate for each Class of Sequential Pay
Certificates is a per annum rate as set forth below:
Class Spread Rate
----- -----------
Class A-1....................... 0.15%
Class A-2....................... 0.20%
Class B......................... 0.25%
Class C......................... 0.30%
Class D......................... 0.35%
Class E......................... 0.40%
Class F......................... 0.45%
Class G......................... 0.50%
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance as of the Cut-Off
Date of such Mortgage Loan, minus (b) the sum of (i) the principal portion of
each Monthly Payment or, if applicable, Extended Monthly Payment due on such
Mortgage Loan after the Cut-Off Date and prior to such date of determination, if
received from the Borrower or advanced by the Master Servicer, the Special
Servicer, Trustee, or Fiscal Agent, (ii) all voluntary and involuntary principal
prepayments and other unscheduled collections of principal received with respect
to such Mortgage Loan, to the extent distributed to Certificateholders or
applied to other payments required under this Agreement before such date of
determination and (iii) any adjustment thereto as a result of a reduction of
principal by a bankruptcy court or as a result of a modification reducing the
principal amount due on such Mortgage Loan. 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. The Stated Principal
Balance of the Marriott Desert Springs Parent Loan at any date of determination
is its principal balance as of the Cut-Off Date, minus the sum of all principal
payments received from the Borrower after the Cut-Off Date and any adjustments
thereto as a result of a reduction of principal by a bankruptcy court or as a
result of a modification reducing the principal amount of the Marriott Desert
Springs Parent Loan.
"Subordinate Certificates": Any of the Class B, Class C, Class D, Class E,
Class F and Class G Certificates.
"Summary Report": A quarterly report or annual summary of quarterly reports
setting forth the information with respect to the Borrowers and Mortgaged
Properties, substantially in the form of Exhibit H hereto.
"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.
"Xxxxxxxxxx Pool A Loan": The Mortgage Loan identified as No. 3 on the
Mortgage Loan Schedule.
"Xxxxxxxxxx Pool B Loan": The Mortgage Loan identified as No. 2 on the
Mortgage Loan Schedule.
"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).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans and the Marriott Desert
Springs Parent Loan 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 and the Marriott
Desert Springs Parent Loan due after the Cut-Off Date; (iii) any REO Property;
(iv) all revenues received in respect of any REO Property; (v) any property
acquired on behalf of the Trust Fund through foreclosure on the Marriott Desert
Springs Pledged Collateral; (vi) 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; (vii) any
Assignments of Leases, Rents and Profits and any security agreements; (viii) any
indemnities or guaranties given as additional security for any Mortgage Loans
and the Marriott Desert Springs Parent Loan; (ix) all assets deposited in the
Collection Account, the Class M 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
Class M Distribution Account and any REO Account including reinvestment income
thereon; (x) any environmental indemnity agreements relating to the Mortgaged
Properties; (xi) the rights and remedies under the Loan Sale Agreement and the
Responsible Party Agreement; and (xii) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Escrow
Accounts, and any Reserve Accounts, to the extent such interest belongs to the
related Borrower).
"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 the Marriott Desert
Springs Parent 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 or the Marriott
Desert Springs Parent Loan, as applicable; 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 or Marriott Desert Springs Parent 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 0.003% per annum.
"Underwriter": Xxxxxxx, Xxxxx & Co.
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
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 Prepayment Premiums,
Excess Interest, Default Interest, the Repurchase Price paid for any Mortgage
Loan pursuant to Section 2.03 and any amount paid in connection with the release
of the related Mortgaged Properties through defeasance.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-Off Date and in accordance with MAI standards, the costs of which
shall be paid as a Property Advance by the Master Servicer. Updated Appraisals
shall be conducted by an MAI appraiser selected by the Special Servicer.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of GS Mortgage Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series 1998-XX XX, 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.
"URS Loan": The Mortgage Loan identified as No. 1 on the Mortgage Loan
Schedule.
"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 M,
Class MX, Class R and Class LR Certificates, (b) 6%, 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 sum of such percentages 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 and Class G 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.
"Withheld Amounts": As defined in Section 3.25.
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans shall
be made in accordance with the terms of the related Note and Mortgage.
(b) The portion of any Insurance Proceeds and Net Liquidation Proceeds in
respect of a Mortgage Loan allocable to principal shall equal the total amount
of such proceeds minus (a) any portion thereof payable to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent pursuant to the provisions
of this Agreement and (b) a portion thereof equal to the interest component of
the Monthly Payment or Extended Monthly Payment, as the case may be, 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 Collection Period in
which such proceeds are received.
(c) For purposes of distribution of Prepayment Premiums pursuant to Section
4.01(c) on any Distribution Date, the Class of Certificates as to which any
prepayment shall be deemed to be distributed shall be determined on the
assumption that the portion of the Principal Distribution Amount paid to the
Certificates on such Distribution Date in respect of principal shall consist
first of scheduled payments included in the definition of Principal Distribution
Amount and second of prepayments included in such definition.
(d) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Master Servicer or the Trustee; provided,
however, that for purposes of calculating distributions on the Certificates,
Principal Prepayments with respect to any Mortgage Loan are deemed to be
received on the date they are applied in accordance with Section 3.01(b) to
reduce the outstanding principal balance of such Mortgage Loan on which interest
accrues.
(e) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred shall be applied to Default Interest and other amounts due
on such Mortgage Loan prior to the application to late fees.
(f) Excess Interest shall not be added to the outstanding principal balance
of the Mortgage Loans notwithstanding that the related Loan Documents may
provide otherwise.
SECTION 1.03. Certain Constructions.
For purposes of this Agreement, references to the most or next most
subordinate Class of Certificates outstanding at any time shall mean the most or
next most subordinate Class of Certificates then outstanding as among the Class
X-0, Xxxxx X-0, Class X, Class B, Class C, Class D, Class E, Class F and Class G
Certificates and the Class M and Class MX Certificates shall not be considered
senior or subordinate to any other Class of Certificates for such purposes
herein; 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, the Class M and Class MX Certificates shall be deemed
to be outstanding so long as the Marriott Desert Springs Parent Loan is
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; Assignment of Loan Sale
Agreement.
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 and the Marriott Desert
Springs Parent Loan, 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 and the Marriott Desert Springs Parent Loan 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,
concurrently with execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Seller in,
to and under the Loan Sale Agreement and the Responsible Party Agreement. The
Seller shall cause the Reserve Accounts and Lock-Box Accounts to be transferred
to and held in the name of the Master Servicer on behalf of the Trustee as
successor to the applicable Originator.
In connection with such transfer and assignment, the Seller shall, on or
prior to the Closing Date, deliver to, and deposit with, the Custodian (on
behalf of the Trustee), with copies to the Master Servicer and Special Servicer,
the following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original of the Note, endorsed without recourse to the order
of the Trustee in the following form: "Pay to the order of
LaSalle National Bank, as Trustee for the Commercial Mortgage
Pass-Through Certificates, Series 1998-XX XX, 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 "LaSalle National Bank, as Trustee for the
Commercial Mortgage Pass-Through Certificates, Series 1998-XX
XX, 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 or
counterpart thereof, 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 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) with respect to the Americold Pool Loan, the Co-Lender
Agreement; 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)
five 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.
In connection with such transfer and assignment, the Seller shall, on or
prior to the Closing Date, deliver to, and deposit with, the Custodian (on
behalf of the Trustee), with copies to the Master Servicer and Special Servicer,
each of the Loan Documents comprising the Mortgage File for the Marriott Desert
Springs Parent Loan.
On or promptly following the Closing Date, the Seller shall, at its
expense, file each UCC-3 financing statement referred to in Exhibit I 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 shall use its
best efforts to promptly prepare a substitute document and thereafter the Seller
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 the
event the public recording office retains the original UCC-3 financing statement
after it 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
UCC-3 financing statement, certified by the public recording office to be a true
and complete copy of the recorded original thereof. The Seller shall promptly
cause the UCC-1s referred to in Exhibit I, 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 Trustee 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 the related Loan Sale Agreement and 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).
All original documents relating to the Mortgage Loans or the Marriott
Desert Springs Parent Loan which are not delivered to the Custodian are and
shall be held by the Seller, the Trustee or the Master Servicer, as the case may
be, in trust for the benefit of the Certificateholders. In the event that any
such original document is required pursuant to the terms of this Section to be a
part of a Mortgage File, such document shall be delivered promptly to the
Custodian.
The Americold Pool Loan is secured by Mortgaged Properties which also serve
as security for another loan made by GSMC (the "GSMC Additional Loan"). The GSMC
Additional Loan may be included in a trust fund created in connection with the
issuance of a separate series of commercial mortgage pass-through certificates.
Each of the Americold Pool Loan and the GSMC Additional Loan is a pari passu
loan, and each is entitled to payments made by the related Borrower and other
amounts received in respect of the related Mortgaged Properties pro rata on the
basis of amounts owing under each such loan.
The Master Servicer shall service the Americold Pool Loan and the Special
Servicer shall, to the extent necessary, specially service the Americold Pool
Loan in accordance with the terms hereof and the Co-Lender Agreement. In
addition, the Master Service shall service the GSMC Additional Loan and, to the
extent necessary, specially service the GSMC Additional Loan in accordance with
the terms hereof and a servicing agreement to be entered into between GSMC and
GMACCM.
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
and the Marriott Desert Springs Parent Loan 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
and the Marriott Desert Springs Parent Loan, 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 (xv), 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 or the Marriott Desert Springs
Parent Loan, as applicable. 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 or the Marriott Desert Springs Parent Loan, as
applicable, 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 (or
the Marriott Desert Springs Parent Loan), with particularity, the nature of the
defective or missing document. The Seller shall, or shall cause the applicable
Responsible Party to, deliver an executed, recorded or undamaged document, as
applicable, within 90 days of receipt of such notice 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 Seller shall, or shall cause the
applicable Responsible Party to, repurchase the related Mortgage Loan 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 and the Marriott Desert Springs Parent Loan 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.
(a) The Seller hereby represents and warrants that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(ii) The Seller 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, but not limited to, the power and authority to sell,
assign and transfer the Mortgage Loans and the Marriott Desert
Springs Parent Loan in accordance with this Agreement;
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and assuming the due authorization,
execution and delivery of this Agreement by each other party
hereto, this Agreement and all of the obligations of the Seller
hereunder are the legal, valid and binding obligations of the
Seller, 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 the Seller will not conflict
with any provision of its certificate of incorporation or
bylaws, or any law or regulation to which the Seller 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 the Seller
is a party or by which it is bound, or any order or decree
applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller's assets or
property, which would materially and adversely affect the
ability of the Seller to carry out the transactions contemplated
by this Agreement. The Seller has obtained any consent,
approval, authorization or order of any court or governmental
agency or body required for the execution, delivery and
performance by the Seller of this Agreement;
(v) There is no action, suit or proceeding pending against the
Seller in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Seller to carry out its obligations
under this Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage Loan and
the Marriott Desert Springs Parent Loan, will have a valid and
perfected security interest of first priority in each of the
Mortgage Loans and the Marriott Desert Springs Parent Loan and
any proceeds thereof.
(b) 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.
(c) 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 the Loan Sale Agreement or the Responsible Party
Agreement, as the case may be, with respect to any Mortgage Loan or the Marriott
Desert Springs Parent Loan, as the case may be, 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 and the Seller, and such Responsible Party shall, to the extent such
Responsible Party is obligated to cure or repurchase the related Mortgage Loan
or the Marriott Desert Springs Parent Loan, as the case may be, under the terms
of the Loan Sale Agreement or the Responsible Party Agreement, as the case may
be, either cure such breach or repurchase said Mortgage Loan or the Marriott
Desert Springs Parent Loan, as the case may be, at the Repurchase Price within
90 days of the receipt of notice of the breach; it being understood and agreed
that none of the Custodian, the Master Servicer, the Special Servicer, and the
Trustee has an obligation to conduct any investigation with respect to such
matters (except, in the case of the Mortgage Files, to the extent provided in
Section 2.01); provided, however, that in the event that such breach or
non-conformity is capable of being cured but not within such 90 day period and
the applicable Responsible Party has commenced and is diligently proceeding with
the cure of such breach or non-conformity within such 90 day period (other than
a breach that would cause a related Mortgage Loan to fail to qualify as a
Qualified Mortgage), the applicable Responsible Party shall have an additional
90 days to complete such cure; provided, further, that with respect to such
additional 90 day period such Responsible Party shall have delivered an
officer's certificate to the Trustee and the Master Servicer setting forth the
reason such breach is not capable of being cured within the initial 90 day
period and what actions such Responsible Party is pursuing in connection with
the cure thereof and stating that such Responsible Party anticipates that such
breach will be cured within the additional 90 day period.
(d) Upon receipt by the Master Servicer from the applicable Responsible
Party of the Repurchase Price for the repurchased Mortgage Loan or the Marriott
Desert Springs Parent Loan, as the case may be, the Master Servicer shall
deposit such amount in the Collection Account or the Class M Collection Account,
as applicable, 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 or the Class M Collection Account, as applicable,
pursuant to this Section 2.03(d), release or cause to be released to the
applicable Responsible Party the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as shall be prepared by the Master
Servicer to vest in the applicable Responsible Party any Mortgage Loan or the
Marriott Desert Springs Parent Loan, as the case may be, released pursuant
hereto, and any rights of the applicable Responsible Party in, to and under the
Loan Sale Agreement or Responsible Party Agreement, as the case may be, as it
relates to such Mortgage Loan or the Marriott Desert Springs Parent Loan, as the
case may be, that were initially transferred to the Trust Fund under Section
2.01, and the Trustee and the Master Servicer shall have no further
responsibility with regard to such Mortgage File.
(e) In the event that the applicable Responsible Party incurs any expense
in connection with curing a breach of a representation or warranty pursuant to
Section 2.03(c) which also constitutes a default under the related Mortgage Loan
or the Marriott Desert Springs Parent Loan, as the case may be, such Responsible
Party shall have a right, subrogated to that of the Trustee, as successor to the
mortgagee, to recover the amount of such expenses from the related Borrower. The
Master Servicer shall use reasonable efforts in recovering, or assisting the
applicable Responsible Party in recovering, from the related Borrower the amount
of any such expenses.
SECTION 2.04. Representations, Warranties and Covenants of the Master
Servicer and Special Servicer.
(a) GMACCM, in its capacity as Master Servicer and Special Servicer
hereunder, hereby represents, warrants and covenants that as of the Closing Date
or as of such date specifically provided herein:
(i) The Master Servicer and the Special Servicer is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of California; the Master Servicer and the
Special Servicer is, and throughout the term of this Agreement
shall remain, to the extent necessary duly authorized and
qualified to transact in the jurisdiction where any Mortgaged
Property is located any and all business contemplated by this
Agreement; the Master Servicer and the Special Servicer,
possesses and shall continue to possess all requisite authority,
power, licenses, permits, franchise, and approvals to conduct
its business and to execute, deliver, and comply with its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement and the Master
Servicer's and the Special Servicer's performance of and
compliance with the terms hereof in the manner contemplated by
this Agreement will not violate the Articles of Incorporation or
By-Laws of the Master Servicer or the Special Servicer,
respectively, or any other instrument governing its operations,
or any laws, regulations, orders or decrees of any governmental
authority applicable to the Master Servicer or the Special
Servicer, respectively, and will not constitute a default (or
any event which, with notice or lapse of time or both, would
constitute a default) under any contract, agreement, or other
instrument to which the Master Servicer or the Special Servicer,
respectively, is a party or which may be applicable to any of
its assets;
(iii) The Agreement constitutes a valid, legal, and binding obligation
of the Master Servicer and the Special Servicer, enforceable
against it in accordance with its terms, subject to bankruptcy
laws and other similar laws of general application affecting
rights of creditors and subject to the application of the rules
of equity, including those respecting the availability of
specific performance;
(iv) The Agreement has been duly executed and delivered by the Master
Servicer and the Special Servicer;
(v) All consents, approvals, authorizations, orders or filings of or
with any court or governmental agency or body, if any, required
for the execution, delivery and performance of this Agreement by
the Master Servicer and the Special Servicer, have been obtained
or made; and
(vi) There is no pending action, suit or proceeding, arbitration or
governmental investigation against the Master Servicer and the
Special Servicer, the outcome of which could reasonably be
expected to materially affect the Master Servicer's or Special
Servicer's, respectively, performance under this Agreement.
(b) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Seller and
the Master Servicer or Special Servicer, as the case may be. Upon discovery by
the Seller, the Master Servicer, the Special Servicer or a Responsible Officer
of the Trustee (or upon written notice thereof from any Certificateholder) of a
breach of any of the representations and warranties set forth in this Section
which materially and adversely affects the interests of the Certificateholders,
the Master Servicer, the Special Servicer or the Trustee in any Mortgage Loan or
the Marriott Desert Springs Parent Loan, the party discovering such breach shall
give prompt written notice to the other parties hereto.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans, the
Marriott Desert Springs Parent Loan 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, (B) in exchange for the Default Interest, the Class Q Certificates
and (C) in exchange for the Marriott Desert Springs Parent Loan, the Class M and
Class MX Certificates, in authorized denominations, registered in the names set
forth in such order and duly authenticated by the Trustee evidencing ownership
of the Upper-Tier REMIC and the undivided interests in the Grantor Trust set
forth in Section 2.06(b).
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class XX-0, Xxxxx XX-0, Class LB, Class LC, Class LD, Class LE,
Class LF and Class LG 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 and Class G 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 M and Class MX Certificates represent undivided beneficial
interests in the Marriott Desert Springs Parent Loan, the Class M Collection
Account and the Class M 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 Class Q Certificates and the
Class M and Class MX Certificates 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 other than the
Class M and Class MX 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 other than the Class M and Class MX Certificateholders,
including, without limitation, with respect to each Mortgage Loan, to prepare,
execute and deliver, on behalf of the Certificateholders (other than the Class M
and Class MX 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 or the definition
of Extended Monthly Payment 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 or the Marriott Desert Springs Parent Loan on a date other than a Due Date
to the principal balance of such Mortgage Loan or the Marriott Desert Springs
Parent Loan as of the Due Date immediately following the date of receipt of such
partial Principal Prepayment. Unless otherwise provided in the related Loan
Documents, the Master Servicer shall apply any amounts received on U.S. Treasury
obligations (which shall not be redeemed by the Master Servicer prior to the
maturity thereof) in respect of a Mortgage Loan being defeased pursuant to its
terms to the principal balance of and interest on such Mortgage Loan as of the
Due Date immediately following the receipt of such amounts.
(c) Each of the Master Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided that (i) any such agreement shall be
consistent with the provisions of this Agreement, (ii) no sub-servicer retained
by the Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Master Servicer or the Special Servicer, as applicable, which approval shall
be given or withheld in accordance with the procedures set forth in Sections
3.09, 3.10 3.26, 3.27, or the definition of Extended Monthly Payment, and (iii)
such agreement shall be consistent with the Servicing Standard. Any such
sub-servicing agreement may permit the sub-servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c). Any sub-servicing agreement entered into by the Master Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee, if the Trustee has assumed the duties of the Master
Servicer or the Special Servicer, or by any successor Master Servicer or Special
Servicer, as applicable, without cost or obligation to the assuming or
terminating party or the Trust Fund, upon the assumption by such party of the
obligations of the Master Servicer or the Special Servicer, as applicable,
pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Master Servicer or the Special Servicer, as the case may be, and
such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Master Servicer assumes the obligations
of the Master Servicer, or if the Trustee or any successor Special Servicer
assumes the obligations of the Special Servicer, in each case in accordance with
Section 7.02, the Trustee or such successor, as applicable, to the extent
necessary to permit the Trustee or such successor, as applicable, to carry out
the provisions of Section 7.02, shall, without act or deed on the part of the
Trustee or such successor, as applicable, succeed to all of the rights and
obligations of the Master Servicer or the Special Servicer, as applicable, under
any sub-servicing agreement entered into by the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 3.01(c), subject to the right of
termination by the Trustee set forth in Section 3.01(c). In such event, the
Trustee or the successor Master Servicer or the successor Special Servicer, as
applicable, shall be deemed to have assumed all of the Master Servicer's or the
Special Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or the
Special Servicer, as applicable, prior to such deemed assumption) and to have
replaced the Master Servicer or the Special Servicer, as applicable, as a party
to such sub-servicing agreement to the same extent as if such sub-servicing
agreement had been assigned to the Trustee or such successor Master Servicer or
successor Special Servicer, as applicable, except that the Master Servicer or
Special Servicer, as applicable, shall not thereby be relieved of any liability
or obligations under such sub-servicing agreement that accrued prior to the
succession of the Trustee or the successor Master Servicer or successor Special
Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer or successor
Special Servicer, as applicable, assumes the servicing obligations of the Master
Servicer or the Special Servicer, as applicable, upon request of the Trustee, or
such successor Master Servicer or Special Servicer, as applicable, the Master
Servicer or Special Servicer shall at its own expense deliver to the Trustee or
such successor Master Servicer or Special Servicer, as applicable, all documents
and records relating to any sub-servicing agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held by it,
if any, and will otherwise use its best efforts to effect the orderly and
efficient transfer of any sub-servicing agreement to the Trustee or the
successor Master Servicer or Special Servicer, as applicable.
SECTION 3.02. Liability of the Master Servicer and Special Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
Special Servicer and any Person acting as sub-servicer (or its agents or
subcontractors) or any reference to actions taken through any Person acting as
sub-servicer or otherwise, the Master Servicer or Special Servicer, as
applicable, shall remain obligated and primarily liable for the servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement (and with respect to the Americold Pool Loan, the Co-Lender Agreement)
without diminution of such obligation or liability by virtue of such
sub-servicing agreements or arrangements or by virtue of indemnification from
any Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Master Servicer or
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans. Each of the Master Servicer and the Special Servicer shall be
entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Master Servicer or Special Servicer, as applicable, by
such sub-servicer, and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification, but no such agreement for indemnification
shall be deemed to limit or modify this Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer or the Special Servicer, as applicable, shall use
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and shall
follow the Servicing Standard with respect to such collection procedures. The
Master Servicer shall use its reasonable efforts to collect income statements,
rent rolls and other reporting information from Borrowers as required by the
related Loan Documents and the terms hereof. Consistent with the foregoing, the
Master Servicer or Special Servicer, as applicable, may in its discretion waive
any late payment charge in connection with any delinquent Monthly Payment with
respect to any Mortgage Loan. In addition, the Master Servicer shall be entitled
to take such actions with respect to the collection of payments on the Mortgage
Loans as are permitted or required under Section 3.26 hereof.
(b) In the event that the Master Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Master Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
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 pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires or permits it
to be held in an account that is not an Eligible Account) and shall be entitled,
"GMAC Commercial Mortgage Corporation, as Master Servicer, in trust for LaSalle
National Bank, as Trustee in trust for Holders of GS Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates, Series 1998-XX XX
and Various Borrowers." Withdrawals from an Escrow Account may be made by the
Master Servicer only:
(i) to effect timely payments of items constituting Escrow Payments
for the related Loan Documents and in accordance with the terms
of the related Mortgage Loan;
(ii) to transfer funds to the Collection Account to reimburse the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as applicable, for any Advance (with interest thereon at
the Advance Rate) relating to Escrow Payments, but only from
amounts received with respect to the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan
and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement;
(v) to pay from time to time to the related Borrower (a) any
interest or investment income earned on funds deposited in the
Escrow Account if such income is required to be paid to the
related Borrower under law or by the terms of the Mortgage Loan,
or otherwise to the Master Servicer and (b) any other funds
required to be released to the related Borrowers pursuant to the
related Loan Documents; and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Class Q Distribution Account; Excess Interest
Distribution Account and Class M 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 Prepayment Premiums;
(iv) any amounts required to be deposited pursuant to Section 3.07(b)
in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) all Net REO Proceeds withdrawn from an REO Account pursuant to
Section 3.17(b) and all Net Insurance Proceeds and Net
Liquidation Proceeds;
(vi) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses, to the extent not permitted to
be retained by the Master Servicer as provided herein; and
(vii) any other amounts required by the provisions of this Agreement
to be deposited into the Collection Account by the Master
Servicer or Special Servicer, including, without limitation,
proceeds of any repurchase of a Mortgage Loan pursuant to
Sections 2.03(c) hereof.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Master
Servicer and, to the extent permitted by applicable law, the Master Servicer
shall be entitled to retain any such charges and fees received with respect to
the Mortgage Loans. In the event that the Master Servicer deposits in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall give written notice
to the Trustee of the location and account number of the Collection Account and
shall notify the Trustee in writing of any subsequent change thereof.
(b) The Trustee shall establish and maintain (i) the Lower-Tier
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests; and (ii) the Upper-Tier Distribution Account in the name of the
Trustee, in trust for the benefit of the Certificateholders. The Lower-Tier
Distribution Account and Upper-Tier Distribution Account shall be established
and maintained as Eligible Accounts or as sub-accounts of a single Eligible
Account. With respect to each Distribution Date, on or before such date the
Trustee shall make the withdrawals from the Lower-Tier Distribution Account, as
set forth in Section 4.01 hereof, shall make the deposits into the Upper-Tier
Distribution Account, as set forth in Section 4.01 hereof, and shall cause the
amount of Available Funds (including P&I Advances) and Prepayment Premiums 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. In addition, 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 (i) the amount of the aggregate Default Interest received during
the preceding Collection Period, minus (ii) any portions thereof withdrawn from
the Collection Account pursuant to clause (iii) of Section 3.06 or otherwise
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 2.06(b). The Excess Interest Distribution Account shall be established
and maintained as an Eligible Account. On or before the Master Servicer
Remittance Date related to the applicable Distribution Date, the Master Servicer
shall remit to the Trustee for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the applicable
Collection Period.
Following the distribution of Excess Interest to Certificateholders on the
first Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Excess Interest, the Trustee
shall terminate the Excess Interest Distribution Account.
(e) The Master Servicer shall establish and maintain the Class M Collection
Account in the Trustee's name, for the benefit of the Holders of the Class M and
Class MX Certificates. The Class M Collection Account shall be established and
maintained as an Eligible Account. The Master Servicer shall deposit or cause to
be deposited in the Class M Collection Account, within two Business Days
following receipt thereof, the MDSPL Debt Service Amount and any other
collections received on or with respect to the Marriott Desert Springs Parent
Loan. 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 M Distribution Account all amounts on deposit in the Class M
Collection Account, minus any portions thereof permitted to be withdrawn from
the Class M Collection Account pursuant to the terms hereof.
The Trustee shall establish and maintain the Class M Distribution Account
in the name of the Trustee in trust for the benefit of the Holders of the Class
M and Class MX Certificates. The Class M Distribution Account shall be
established and maintained as an Eligible Account.
Following the distribution to the Class M and Class MX Certificateholders
on the first Distribution Date after which the Marriott Desert Springs Parent
Loan is no longer outstanding, the Master Servicer shall terminate the Class M
Collection Account and the Trustee shall terminate the Class M Distribution
Account.
(f) Funds in the Collection Account and the Class M Collection Account may
be invested in Permitted Investments in accordance with the provisions of
Section 3.07.
SECTION 3.06. Permitted Withdrawals from the Collection Account and the
Class M 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 Special Servicer,
the Trustee or the Fiscal Agent for Advances and any related
Advance Interest Amounts (provided that the Trustee and the
Fiscal Agent shall have priority with respect to such payment or
reimbursement, and, provided further, that in the event the
Special Servicer is required pursuant to the terms of Sections
3.22(d) to make Advances, the Special Servicer shall have
priority over the Master Servicer with respect to the 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 pay on or before each Master Servicer Remittance Date to the
Master Servicer and the Special Servicer, as applicable, as
compensation, the aggregate unpaid Servicing Fee and Special
Servicing Compensation (if any), respectively, in respect of the
immediately preceding Interest Accrual Period, to be paid, in
the case of the Servicing Fee, from interest received on the
related Mortgage Loan, and to pay from time to time to the
Master Servicer in accordance with Section 3.07(b) any interest
or investment income earned on funds deposited in the Collection
Account;
(v) to pay on or before each Distribution Date to the Seller, the
applicable Responsible Party or any other applicable Person as
the case may be, with respect to each Mortgage Loan or REO
Property that has previously been purchased or repurchased by it
pursuant to Section 2.03(c), Section 3.18 or Section 9.01, all
amounts received thereon during the related Collection Period
and subsequent to the date as of which the amount required to
effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other
clause of this Section 3.06, to reimburse or pay the Master
Servicer, the Trustee, the Special Servicer, the Seller or the
Fiscal Agent, as applicable, for unpaid Servicing Fees, Special
Servicing Compensation and other unpaid items incurred by such
Person pursuant to the second sentence of Section 3.07(c),
Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section
3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section
8.05(d) or Section 10.07, or any other provision of this
Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case only
to the extent expressly reimbursable under such Section, it
being acknowledged that this clause (vi) shall not be deemed to
modify the substance of any such Section, including the
provisions of such Section that set forth the extent to which
one of the foregoing Persons is or is not entitled to payment or
reimbursement;
(vii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined
by the Trustee to be necessary to pay any applicable federal,
state or local taxes imposed on the Upper-Tier REMIC or the
Lower-Tier REMIC under the circumstances and to the extent
described in Section 4.05;
(viii) to withdraw any amount deposited into the Collection Account
that was not required to be deposited therein; and
(ix) 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 Master Servicer shall make withdrawals from the Class M Collection
Account only as described below (the order set forth below not constituting an
order of priority for such withdrawals):
(a) to remit to the Trustee for deposit in the Class M Distribution
Account, all amounts remaining in the Class M Collection Account
after withdrawals pursuant to clauses (b), (c), (d) and (e)
hereof;
(b) to pay on or before each Master Servicer Remittance Date to the
Master Servicer, as compensation, the aggregate unpaid Servicing
Fee in respect of the immediately preceding Interest Accrual
Period, to be paid from interest received on the Marriott Desert
Springs Parent Loan;
(c) to pay on or before each Distribution Date to the Seller or any
other applicable Person as the case may be, with respect to a
purchase or repurchase by it of the Marriott Desert Springs
Parent Loan pursuant to Section 2.03(c) 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;
(d) 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 or the Seller, as applicable, for unpaid
Servicing Fees and other unpaid items incurred by such Person
pursuant to any provision of this Agreement pursuant to which
such Person is entitled to reimbursement or payment from the
Trust Fund in connection with the Marriott Desert Springs Parent
Loan, in each case only to the extent expressly reimbursable
under such Section, it being acknowledged that this clause (d)
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;
(e) to withdraw any amount deposited into the Class M Collection
Account that was not required to be deposited therein; and
(f) to clear and terminate the Class M Collection Account pursuant
to Section 9.01.
The Master Servicer shall pay to the Trustee, the Fiscal Agent or the
Special Servicer from the Collection Account and the Class M Collection Account
amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special
Servicer therefrom as set forth above, promptly upon receipt of a certificate of
a Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Master Servicer may conclusively rely on any such
certificate and shall have no duty to recalculate the amounts stated therein.
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 and the Master Servicer shall in all cases have a right prior
to the Class M and Class MX Certificateholders to any funds on deposit in the
Class M Collection Account from time to time for the reimbursement or payment of
the Servicing Fees (including investment income) or Trustee Fees in respect of
the Marriott Desert Springs Parent Loan and their respective expenses hereunder
to the extent such fees and expenses are to be reimbursed or paid from amounts
on deposit in the Class M Collection Account pursuant to this Agreement. 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 M 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) and Section
3.06(a)), 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. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing)
and by telephone at telephone No. (000) 000-0000 (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, the Class M Collection Account and any Borrower Accounts (subject to
the second succeeding sentence) and any REO Account (each, for purposes of this
Section 3.07, an "Investment Account"), to invest the funds in such Investment
Account in one or more Permitted Investments that bear interest or are sold at a
discount, and that mature, unless payable on demand, no later than the Business
Day preceding the date on which such funds are required to be withdrawn from
such Investment Account pursuant to this Agreement. Any direction by the Master
Servicer or the Special Servicer, to invest funds on deposit in an Investment
Account shall be in writing and shall certify that the requested investment is a
Permitted Investment which matures at or prior to the time required hereby or is
payable on demand. In the case of any Escrow Account, Lock-Box Account, or
Reserve Account (the "Borrower Accounts"), the Master Servicer shall act upon
the written request of the related Borrower or Manager to the extent the Master
Servicer is required to do so under the terms of the respective Mortgage Loan or
related documents, provided that in the absence of appropriate written
instructions from the related Borrower or Manager meeting the requirements of
this Section 3.07, the Master Servicer shall have no obligation to, but will be
entitled to, direct the investment of funds in such accounts in Permitted
Investments. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Master Servicer, or
the Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Master Servicer),
together with any document of transfer, if any, necessary to transfer title to
such investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Master Servicer or the Special Servicer, any Borrower or Manager or any losses
resulting therefrom, whether from Permitted Investments or otherwise. The Master
Servicer shall have no responsibility or liability with respect to the
investment direction of any Borrower or Manager or any losses resulting
therefrom, whether from Permitted Investments or otherwise. In the event amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (or the Special Servicer),
shall: (x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn on such
date; and (y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer (or the Special Servicer) that such
Permitted Investment would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Master Servicer, except with
respect to the investment of funds deposited in (i) any Borrower Account, which
shall be for the benefit of the related Borrower to the extent required under
the Mortgage Loan or applicable law or (ii) any REO Account, which shall be for
the benefit of the Special Servicer, and, if held in the Collection Account or
REO Account shall be subject to withdrawal by the Master Servicer or the Special
Servicer, as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable. The Master Servicer (or with respect to any REO Account, the Special
Servicer) shall deposit from its own funds into any applicable Investment
Account, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss (except with respect to
losses incurred as a result of the related Borrower or Manager exercising its
power under the related Loan Documents to direct such investment in such
Borrower Account); provided, however, that the Master Servicer or Special
Servicer, as applicable, may reduce the amount of such payment to the extent it
forgoes any investment income in such Investment Account otherwise payable to
it. The Master Servicer shall also deposit from its own funds in any Borrower
Account the amount of any loss incurred in respect of Permitted Investments,
except to the extent that amounts are invested for the benefit of the Borrower
under the terms of the Mortgage Loan or applicable law.
All amounts on deposit in the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account, the Class Q Distribution Account and the Class
M 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 (provided
that the Class M Certificateholders shall only have such ability with respect to
the Class M Distribution Account) shall, take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings. In the event the Trustee takes any such
action, the Trust Fund shall pay or reimburse the Trustee for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in connection therewith. In the event that the Trustee does not take any
such action, the Master Servicer may, but is not obligated to, take such action
at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage.
(a) The Master Servicer on behalf of the Trustee, as mortgagee, shall use
reasonable best efforts to cause the related Borrower to maintain, to the extent
required by each Mortgage Loan (other than REO Mortgage Loans), and if the
Borrower does not so maintain, shall itself maintain (subject to the provisions
of this Agreement concerning Nonrecoverable Advances to the extent the Trustee
as mortgagee has an insurable interest and to the extent available at
commercially reasonable rates), (i) fire and hazard insurance (and hurricane
insurance, if applicable) with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the lesser of (a) one hundred
percent (100%) of the then "full replacement cost" of the improvements and
equipment, (excluding foundations, footings and excavation costs), without
deduction for physical depreciation, and (b) the outstanding principal balance
of the related Mortgage Loan or such greater amount as is necessary to prevent
any reduction in such policy by reason of the application of co-insurance
provisions and to prevent the Trustee thereunder from being deemed to be a
co-insurer and provided such policy shall include a "replacement cost" rider,
(ii) insurance providing coverage against 18 months (or such longer period or
with such extended period endorsement as provided in the related Mortgage or
other Loan Document) of rent interruptions and (iii) such other insurance as is
required in the related Mortgage Loan. The Special Servicer shall maintain fire
and hazard insurance with extended coverage on each REO Property (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) in an amount
which is at least equal to one hundred percent (100%) of the then "full
replacement cost" of the improvements and equipment (excluding foundations,
footings and excavation costs), without deduction for physical depreciation. If
the Special Servicer does not maintain the insurance described in the preceding
sentence or the required flood insurance described below, the Master Servicer
shall, as soon as practicable after receipt of notice of such failure, maintain
such insurance, and if the Master Servicer does not maintain such insurance, the
insurance required in the first sentence of this Section 3.08(a) or the required
flood insurance described below (if the related Borrower fails to maintain such
insurance), the Trustee shall, as soon as practicable after receipt of notice of
such failure, maintain such insurance and if the Trustee does not maintain such
insurance, the Fiscal Agent shall do so, provided that, in each such case, such
obligation will be subject to the provisions of this Agreement concerning
Nonrecoverable Advances and to the availability of such insurance at
commercially reasonable rates. The Special Servicer shall maintain, with respect
to each REO Property (i) public liability insurance providing such coverage
against such risks as the Special Servicer determines, consistent with the
related Loan Documents and the Servicing Standard, to be in the best interests
of the Trust Fund, (ii) insurance providing coverage against 18 months (or such
longer period of time as is consistent with the Loan Documents and the Servicing
Standard) of rent interruptions and (iii) such other insurance as was required
pursuant to the terms of the related Mortgage Loan. All insurance for an REO
Property shall be from a Qualified Insurer. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Loan Documents) shall be deposited into the Collection Account
pursuant to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any
cost incurred by the Master Servicer or the Special Servicer in maintaining any
such insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Master Servicer other
than pursuant to the terms of the related Loan Documents and pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property (other than an REO
Property) is located in a federally designated special flood hazard area, the
Master Servicer will use its reasonable best efforts to cause the related
Borrower to maintain, to the extent required by each Mortgage Loan, and if the
related Borrower does not so maintain, shall itself obtain (subject to the
provisions of this Agreement concerning Nonrecoverable Advances) and maintain
flood insurance in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance required by the terms of the
related Mortgage Loan and as is available for the related property under the
national flood insurance program (assuming that the area in which such property
is located is participating in such program). If a Mortgaged Property is related
to a Mortgage Loan pursuant to which earthquake insurance was in place at the
time of origination, is required to be maintained pursuant to the terms of the
Mortgage Loan, the Master Servicer shall use its reasonable best efforts to
cause the related Borrower to maintain, and if the related Borrower does not so
maintain will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances and for so long as such insurance continues
to be available at commercially reasonable rates) and maintain earthquake
insurance in respect thereof, in the amount required by the Mortgage Loan or, if
not specified, in-place at origination. If an REO Property (i) is located in a
federally designated special flood hazard area or (ii) is related to a Mortgage
Loan pursuant to which earthquake insurance was in place at the time of
origination and continues to be available at commercially reasonable rates, the
Special Servicer will obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) and maintain flood insurance and/or
earthquake insurance in respect thereof providing the same coverage as described
in the preceding sentences or, with respect to earthquake insurance, in the
amount required by the Mortgage Loan or, if not specified, in-place at
origination. If at any time during the term of this Agreement a recovery under a
flood or fire and hazard insurance policy in respect of an REO Property is not
available but would have been available if such insurance were maintained
thereon in accordance with the standards applied to Mortgaged Properties
described herein, the Special Servicer shall (subject to the provisions hereof
relating to Nonrecoverable Advances) either (i) immediately deposit into the
Collection Account from its own funds the amount that would have been recovered
or (ii) apply to the restoration and repair of the property from its own funds
the amount that would have been recovered, if such application would be
consistent with the Servicing Standard; provided, however, that the Special
Servicer shall not be responsible for any shortfall in insurance proceeds
resulting from an insurer's refusal or inability to pay a claim. In the case of
any insurance otherwise required to be maintained by the Master Servicer or the
Special Servicer, as applicable, that is not being so maintained because the
Master Servicer or the Special Servicer, as applicable, has determined that it
is not available at commercially reasonable rates, the Master Servicer or the
Special Servicer, as applicable, shall deliver an Officers' Certificate to the
Trustee, the Seller and each Rating Agency which details the steps that were
taken in seeking such insurance and the factors which led to the determination
that such insurance was not so available. Out-of-pocket expenses incurred by the
Master Servicer or Special Servicer in maintaining insurance policies pursuant
to this Section 3.08 shall be paid by the Master Servicer or Special Servicer as
a Property Advance and shall be reimbursable to the Master Servicer or Special
Servicer with interest at the Advance Rate. The Master Servicer (or the Special
Servicer, with respect to the Specially Serviced Mortgage Loans) agrees to
prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under each related insurance policy maintained
pursuant to this Section 3.08(a) in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee or the
Master Servicer or the Special Servicer, on behalf of the Trustee as the
mortgagee, as loss payee, and, unless otherwise required under the related Loan
Documents, shall be issued by Qualified Insurers.
(b) (I) If the Master Servicer or the Special Servicer, as applicable,
obtains and maintains a blanket insurance policy insuring against fire and
hazard losses on all of the Mortgaged Properties (other than REO Properties) as
to which the related Borrower has not maintained insurance required by the
related Mortgage Loan or on all of the REO Properties, as the case may be, it
shall conclusively be deemed to have satisfied its respective obligations
concerning the maintenance of insurance coverage set forth in Section 3.08(a).
Any such blanket insurance policy shall be maintained with a Qualified Insurer.
A blanket insurance policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer, as applicable, shall, in the event that
(i) there shall not have been maintained on the related Mortgaged Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause to the extent that any such deductible exceeds
the deductible limitation that pertained to the related Mortgage Loan, or, in
the absence of any such deductible limitation, the deductible limitation which
is consistent with the Servicing Standard. In connection with its activities as
Master Servicer or the Special Servicer hereunder, as applicable, the Master
Servicer and the Special Servicer, respectively, agree to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy which it maintains in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or permit recovery thereunder.
(II) If the Master Servicer or the Special Servicer, as applicable, causes
any Mortgaged Property or REO Property to be covered by a master force placed
insurance policy and such policy shall be issued by a Qualified Insurer and
provide no less coverage in scope and amount for such Mortgaged Property or REO
Property than the insurance required to be maintained pursuant to Section
3.08(a), then the Master Servicer or Special Servicer shall conclusively be
deemed to have satisfied its respective obligations to maintain insurance
pursuant to Section 3.08(a). Such policy may contain a deductible clause, in
which case the Master Servicer or the Special Servicer, as applicable, shall, in
the event that (i) there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.08(a), and (ii) there shall have been one or more losses which would
have been covered by such a policy had it been maintained, immediately deposit
into the Collection Account from its own funds the amount not otherwise payable
under such policy because of such deductible to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Master Servicer and the Special Servicer shall each maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of FNMA or FHLMC, whichever is greater, with the Trustee named as
certificateholder or loss payee, as applicable thereunder. The Master Servicer
and the Special Servicer each shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as applicable. In
addition, the Master Servicer and the Special Servicer shall each keep in force
during the term of this Agreement a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its obligations to service the Mortgage Loans and the Marriott
Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan on behalf of such
sub-servicer, a fidelity bond and an errors and omissions insurance policy which
satisfy the requirements for the fidelity bond and the errors and omissions
policy to be maintained by the Master Servicer pursuant to this Section 3.08(c).
All fidelity bonds and policies of errors and omissions insurance obtained under
this Section 3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property
or related Borrower, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Master Servicer or Special Servicer, as applicable, on behalf of the Trust Fund
shall not be required to enforce such due-on-sale clause and in connection
therewith shall not be required to (x) accelerate payments thereon or (y)
withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan if (x) such provision is not exercisable
under applicable law or such exercise is reasonably likely to result in
meritorious legal action by the related Borrower or (y) the Master Servicer or
Special Servicer, as applicable, determines, in accordance with the Servicing
Standard, that granting such consent would be likely to result in a greater
recovery, on a present value basis (discounting at the related Mortgage Rate),
than would enforcement of such clause. If the Master Servicer or Special
Servicer, as applicable, determines that granting of such consent would likely
result in a greater recovery, the Master Servicer or Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Master Servicer's or Special Servicer's, as applicable, regular commercial
mortgage origination or servicing standards and criteria (as evidenced in
writing by the Master Servicer or Special Servicer) and the terms of the related
Mortgage and (b) the Master Servicer or Special Servicer has received written
confirmation from each Rating Agency that such assumption or substitution would
not, in and of itself, cause a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates. In connection with each such
assumption or substitution entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Master Servicer. The Master
Servicer or Special Servicer, as applicable, shall notify the Trustee that any
such assumption or substitution agreement has been completed by forwarding to
the Trustee (with a copy to the Master Servicer, if applicable,) the original
copy of such agreement, which copies shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
(b) Subject to Section 3.26(b), if any Mortgage Loan contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of
any lien or other encumbrance on the related Mortgaged Property,
or
(ii) requires the consent of the related mortgagee to the creation of
any such lien or other encumbrance on the related Mortgaged
Property,
then the Master Servicer or Special Servicer, as applicable, on behalf of the
Trust Fund, shall not be required to enforce such due-on-encumbrance clause and
in connection therewith will not be required to (i) accelerate the payments on
the related Mortgage Loan or (ii) withhold its consent to such lien or
encumbrance if in either case the Master Servicer or Special Servicer, as
applicable, (x) determines, in accordance with the Servicing Standard, that such
enforcement would not be in the best interests of the Trust Fund and (y)
receives prior written confirmation from each Rating Agency that granting such
consent would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Master Servicer nor the Special
Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.27.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance:
(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, 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 obtain an Opinion of Counsel (which
shall be an expense of the related Borrower) 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) 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 required by the related Loan Documents, prior to
permitting release of any Mortgaged Properties through
defeasance, the Master Servicer shall (at the Borrower's
expense) obtain written confirmation from each Rating Agency
that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates.
(v) If the Mortgage Loan permits the related Borrower or the lender
or its designee to cause an accommodation borrower to assume
such defeased obligations, the Master Servicer shall establish
at the Borrower's cost and expense (and shall use its reasonable
best efforts to cause the related Borrower to consent to such
assumption) a special purpose bankruptcy-remote entity to assume
such obligations, the establishment of which will not, as
evidenced in a writing of the Rating Agencies delivered to the
Trustee, in and of itself, result in the downgrade,
qualification or withdrawals of the ratings then assigned to the
Certificates.
SECTION 3.10. Realization Upon Defaulted Mortgage Loans.
(a) Within 60 days after the occurrence of an Appraisal Reduction Event,
the Special Servicer shall obtain an Updated Appraisal of the related Mortgaged
Property or REO Property, as the case may be, the costs of which shall be a
Property Advance to be advanced by the Master Servicer; provided, however, that
the Special Servicer shall not be required to obtain an Updated Appraisal of any
Mortgaged Property with respect to which there exists an appraisal which is less
than twelve months old. The Master Servicer or Special Servicer, as applicable,
shall obtain annual letter updates to the Updated Appraisal or new Updated
Appraisals, provided, that in the event that the Master Servicer or Special
Servicer, as applicable, becomes aware pursuant to the financial and property
reports, if any, collected from the related Borrower that net operating income
with respect to any Mortgaged Property (calculated as provided in the related
Loan Documents) has dropped by more than 10% for any fiscal year or the debt
service coverage ratio of any Mortgaged Property (calculated as provided in the
related Loan Documents) has fallen below 1.20x (based on such fiscal year's
financial statements), the Master Servicer or Special Servicer, as applicable,
shall obtain a new Updated Appraisal.
Following a default in the payment of any principal balance and accrued
interest remaining unpaid on the maturity date of a Mortgage Loan, the Special
Servicer may elect to grant up to three consecutive one-year extensions of the
Specially Serviced Mortgage Loan; provided that the Special Servicer may only
extend such Mortgage Loan if (i) immediately prior to the default on the
maturity date (or the first or second anniversary thereof in the case of the
second or third extension, respectively), the related Borrower had made twelve
consecutive Monthly Payments (or Extended Monthly Payments (as defined herein)
in the case of the second or third extension) on or prior to their Due Dates,
(ii) the Special Servicer determines that (a) extension of such Mortgage Loan is
consistent with the Servicing Standard and (b) extension of such Mortgage Loan
is likely to result in a recovery which on a net present value basis would be
greater than the recovery that would result from a foreclosure, (iii) such
extension requires that all cash flow on all related Mortgaged Properties in
excess of amounts required to operate and maintain such Mortgaged Properties be
applied to payments of principal and interest on such Mortgage Loan, (iv) the
Special Servicer terminates the related Manager unless the Special Servicer
determines that retaining such Manager is conducive to maintaining the value of
such Mortgaged Properties and (v) such extension requires the related Borrower
to make Extended Monthly Payments. The Special Servicer's determination to
extend shall be made in the Special Servicer's good faith judgment, and may, but
is not required to be, based on an Updated Appraisal or a letter update thereof.
The Special Servicer will not agree to any extension of a Mortgage Loan
beyond the date which is two years prior to the Rated Final Distribution Date.
If the related Borrower fails to make an Extended Monthly Payment during the
initial extension period, no further extensions will be granted. In no event
will the Special Servicer be permitted to extend any Mortgage Loan at a rate
lower than the Mortgage Rate.
(b) In connection with any foreclosure, enforcement of the Loan Documents
or other acquisition, the Special Servicer shall pay the out-of-pocket costs and
expenses in any such proceedings as a Property Advance unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence to the extent permitted by Section 3.06(ii) and Section
3.06(vi).
If the Special Servicer elects to proceed with a non-judicial foreclosure
in accordance with the laws of the state where the Mortgaged Property is
located, the Special Servicer shall not be required to pursue a deficiency
judgment against the related Borrower or any other liable party if the laws of
the state do not permit such a deficiency judgment after a non-judicial
foreclosure or if the Special Servicer determines, in its best judgment, 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, except with respect to the Marriott Desert Springs Parent Loan,
unless the Master Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Trust Fund) to the effect that
the holding of such partnership interest or other equity interest by the Trust
Fund will not cause the imposition of a tax on the Lower-Tier REMIC or
Upper-Tier REMIC under the REMIC Provisions or cause the Lower-Tier REMIC or
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership or membership
interest in any Borrower pledged pursuant to a pledge agreement and thereby be
the beneficial owner of a Mortgaged Property, and shall not otherwise acquire
possession of, or take any other action with respect to, any Mortgaged Property
if, as a result of any such action, the Trustee, for the Trust Fund or the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an updated environmental
assessment report prepared by an Independent Person who regularly conducts
environmental audits, that:
(A) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an
environmental consultant, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary
to bring such Mortgaged Property in compliance therewith; and
(B) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
currently effective federal, state or local law or regulation,
or that, if any such Hazardous Materials are present for which
such action could be required, after consultation with an
environmental consultant, it would be in the best economic
interest of the Trust Fund to take such actions with respect to
the affected Mortgaged Property. In the event that the
environmental assessment first obtained by the Special Servicer
with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable
environmental laws or that Hazardous Materials may be present
but does not definitively establish such fact, the Special
Servicer shall cause such further environmental tests to be
conducted by an Independent Person who regularly conducts such
tests as the Special Servicer shall deem prudent to protect the
interests of Certificateholders. Any such tests shall be deemed
part of the environmental assessment obtained by the Special
Servicer for purposes of this Section 3.10.
(f) The environmental assessment contemplated by Section 3.10(e) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Master Servicer shall advance the cost of preparation of such
environmental assessments unless the Master Servicer determines, in its good
faith judgment, that such Advance would be a Nonrecoverable Advance. The Master
Servicer shall be entitled to reimbursement of Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence in the manner set forth in
Section 3.06.
(g) If the Special Servicer determines pursuant to Section 3.10(e)(A) 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)(B) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer and delivered to the Trustee, and only
if the Trustee does not receive, within 30 days of such notification,
instructions from the Holders of greater than 50% of the aggregate Voting Rights
of such Classes directing the Special Servicer not to take such action. None of
the Trustee, the Master Servicer or the Special Servicer shall be obligated to
take any action or not take any action pursuant to this Section 3.10(g) at the
direction of the Certificateholders unless the Certificateholders agree to
indemnify the Trustee, the Master Servicer and the Special Servicer with respect
to such action or inaction. The Special Servicer shall advance the cost of any
such compliance, containment, clean-up or remediation unless the Special
Servicer determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. The Special Servicer shall be entitled to
reimbursement of Advances (with interest at the Advance Rate) made pursuant to
the preceding sentence in the manner set forth in Section 3.06.
(h) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(i) The costs of any appraisal or annual letter update obtained pursuant to
this Section 3.10 shall be paid by the Master Servicer as an Advance and shall
be reimbursable from the Collection Account pursuant to Section 3.06.
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan or the Marriott Desert
Springs Parent 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 or
the Class M Distribution Account, as applicable, 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 or the realization upon the Marriott Desert Springs Pledged
Collateral, receipt by the Trustee of a certificate of a Servicing Officer
stating that such Mortgage Loan or the Marriott Desert Springs Parent Loan, as
the case may be, 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, the Lower-Tier Distribution Account, the Class M Collection
Account and/or the Class M Distribution Account, as applicable, have been so
deposited, or that such Mortgage Loan has become an REO Property or the Master
Servicer has foreclosed upon the Marriott Desert Springs Pledged Collateral, 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 (or the Master Servicer in the case
of the Marriott Desert Springs Parent Loan) 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 the Marriott Desert Springs Parent Borrower on
the Marriott Desert Springs Parent Loan, as the case may be, 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 the Marriott Desert Springs
Parent 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) (or, with respect to the Marriott Desert Springs Parent Loan,
from amounts on deposit in the Class M Collection Account as set forth in
Section 3.06(d)). The Master Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement. In
addition, the Master Servicer shall be entitled to receive, as additional
servicing compensation, to the extent permitted by applicable law and the
related Mortgage Loans or the Marriott Desert Springs Parent Loan, as the case
may be, any late payment charges, Assumption Fees, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges, or similar items (but not including any Net Default Interest
or Prepayment Premiums, in each case to the extent received and not required to
be deposited or retained in the Collection Account pursuant to Section 3.05 (or,
with respect to the Marriott Desert Springs Parent Loan, to the extent deposited
in the Class M Collection Account and not otherwise required to offset any
out-of-pocket expenses incurred by the Master Servicer with respect to the
Marriott Desert Springs Parent Loan); 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 or the Marriott Desert Springs Parent Loan, as applicable, 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 or the Marriott Desert Springs Parent Loan, as applicable, 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 the Class M 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 shall be reduced by the
aggregate amount of any Prepayment Interest Shortfalls for the related
Collection Period.
As compensation for its activities hereunder, on each Distribution Date the
Trustee shall be entitled with respect to each Mortgage Loan and the Marriott
Desert Springs Parent 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. Except as otherwise
provided herein, the Trustee shall pay all expenses incurred by it, the Fiscal
Agent, the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent in connection with their activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Fee, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.06(iv). The Special Servicer's
rights to the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement. In addition, the Special
Servicer shall be entitled to receive, as additional servicing compensation, (i)
to the extent permitted by applicable law and the related Specially Serviced
Mortgaged Loans, any Assumption Fees, loan modification or forbearance fees,
late payment charges, extension fees, loan service transaction fees or similar
items, and (ii) any interest or other income earned on deposits in the REO
Accounts.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) In addition to the Special Servicing Fees provided for in this
Agreement, and not in lieu thereof, the Special Servicer shall be entitled to
the following fees and compensation:
(i) the Special Servicing Rehabilitation Fee; and
(ii) the Liquidation Fee payable out of the Liquidation Proceeds
prior to the deposit of the Net Liquidation Proceeds in the
Collection Account. However, no Liquidation Fee will be payable
in connection with, or out of, Liquidation Proceeds resulting
from the purchase of any Specially Serviced Mortgage Loan or REO
Property (i) by any Responsible Party, or (ii) by the Master
Servicer, the Seller or the Certificateholders pursuant to
Section 2.03 or Section 9.01.
(d) The Master Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vi).
(e) No provision of this Agreement or of the Certificates shall require the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Master Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Master Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund
hereunder, then the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall not be required to take any action in response to such
request or inquiry unless the Borrower or such Certificateholder or such other
Person, as applicable, makes arrangements for the payment of the Master
Servicer's, the Special Servicer's or Trustee's expenses associated with such
counsel (including, without limitation, posting an advance payment for such
expenses) satisfactory to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in its sole discretion. Unless such arrangements
have been made, the Master Servicer, the Special Servicer or the Trustee, as the
case may be, shall have no liability to any Person for the failure to respond to
such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Master Servicer shall deliver to the Trustee, the Special Servicer
and the Fiscal Agent, no later than the fifth Business Day prior to each
Distribution Date a preliminary report containing the information provided on
the Master Servicer Remittance Report and by no later than the second Business
Day prior to each Distribution Date, the Master Servicer Remittance Report with
respect to the related Distribution Date (which shall include, without
limitation, the amount of Available Funds for such related Collection Period)
including a written statement of anticipated P&I Advances for the related
Distribution Date. The Master Servicer's responsibilities under this Section
3.13(a) with respect to REO Mortgage Loans shall be subject to the satisfaction
of the Special Servicer's obligations under Section 3.24.
(b) Not later than fifteen 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 Collection 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 Collection 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) Subject to Section 8.01(b) hereof, the Trustee shall be entitled to
rely conclusively on and shall not be responsible for the content or accuracy of
any information provided to it by the Master Servicer or the Special Servicer
pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, with a copy to the Rating Agencies and the Seller, on or before April
30th of each year, beginning in 1999, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof, (iii) that it has maintained an effective internal control system over
the servicing of mortgage loans including the Mortgage Loans, and (iv) the
Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding qualification, or challenging the status, of the Trust Fund as
a REMIC from the Internal Revenue Service or any other governmental agency or
body or, if it has received any such notice, specifying the details thereof. A
copy of such Officer's Certificate may be obtained by Certificateholders upon
written request to the Trustee pursuant to Section 8.12 hereof.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before April 30th of each year, beginning in 1999, the Master
Servicer at its expense shall cause a firm of nationally recognized Independent
public accountants (which may also render other services to the Master Servicer)
and that is a member of the American Institute of Certified Public Accountants
to furnish a statement to the Trustee and to the Seller to the effect that (i)
it has obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial and multifamily mortgage loans), identified
in the Uniform Single Attestation Program for Mortgage Bankers established by
the Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accounts rendered on the basis of examinations conducted in accordance with the
same standards (rendered within one year of such report) with respect to those
sub-servicers.
SECTION 3.16. Access to Certain Documentation.
The Master Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer or Special Servicer. Nothing in this Section 3.16 shall detract from
the obligation of the Master Servicer and Special Servicer to observe any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Master Servicer and Special Servicer to
provide access as provided in this Section 3.16 as a result of such obligation
shall not constitute a breach of this Section 3.16.
SECTION 3.17. Title and Management of REO Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Master Servicer), or a separate trustee or co-trustee, on behalf of
the Trust Fund. The Special Servicer, on behalf of the Trust Fund, shall dispose
of any REO Property prior to the close of the third calendar year beginning
after the Trust Fund acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the
Lower-Tier REMIC has applied for an extension of such period pursuant to
Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special
Servicer shall sell such REO Property within the applicable extension period or
(ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and Trustee, to the effect that the holding by the Trust Fund of such
REO Property for an additional specified period will not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (determined without regard to the exception applicable
for purposes of Section 860D(a) of the Code) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund, shall dispose of any REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such REO Property is required to be disposed
of pursuant to the provisions of the immediately preceding sentence in a manner
provided under Section 3.18 hereof. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the
Servicing Standard and the terms of this Agreement, all on such terms and for
such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
only agree to the payment of management fees that are consistent with general
market standards or to terms that are more favorable. Consistent with the
foregoing, the Special Servicer shall cause or permit to be earned with respect
to such REO Property any "net income from foreclosure property," within the
meaning of Section 860G(c) of the Code, which is subject to tax under the REMIC
Provisions only if it has determined, and has so advised the Trustee in writing,
that the earning of such income on a net after-tax basis could reasonably be
expected to result in a greater recovery on behalf of Certificateholders than an
alternative method of operation or rental of such REO Property that would not be
subject to such a tax. The Special Servicer shall segregate and hold all
revenues received by it with respect to any REO Property separate and apart from
its own funds and general assets and shall establish and maintain with respect
to any REO Property a segregated custodial account (each, an "REO Account"),
each of which shall be an Eligible Account and shall be entitled "GMAC
Commercial Mortgage Corporation, as Special Servicer, in trust for LaSalle
National Bank, as Trustee, in trust for Holders of GS Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates, Series 1998-XX
XX, 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 (or, pursuant to Section 3.22(e), the Special 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 (or, pursuant to
Section 3.22(e), the Special Servicer) that an Advance, if made, would be a
Nonrecoverable Advance. In addition, with respect to the One Commerce Square
Loan, the Master Servicer shall be entitled to rely, conclusively, on any
determination by the Trustee 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 (or,
pursuant to Section 3.22(e), the Special 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,
unless the Rating Agencies have confirmed, in writing, that such acceptance will
not, in itself, result in the qualification, downgrade or withdrawal of the then
current ratings assigned to the Certificates. Notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not the Special Servicer or an Affiliate of the
Special Servicer.
In the event that the Special Servicer determines with respect to any REO
Property that the offers being made with respect thereto are not in the best
interests of the Certificateholders and that the end of the disposition period
referred to in Section 3.17(a) with respect to such REO Property is approaching,
the Special Servicer shall seek an extension of such period in the manner
described in Section 3.17(a); provided, however, that the Special Servicer shall
use its best efforts, consistent with the Servicing Standard, to sell each
Specially Serviced Mortgage Loan and any REO Property prior to the Rated Final
Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser or other expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a fair
price for any Specially Serviced Mortgage Loan or any REO Property, the Special
Servicer (if the highest offeror is not an Interested Person) or the Trustee
shall take into account, and any appraiser or other expert in real estate
matters shall be instructed to take into account, as applicable, among other
factors, any Updated Appraisal previously obtained, the period and amount of any
delinquency on the affected Specially Serviced Mortgage Loan, the physical
(including environmental) condition of the related Mortgaged Property or such
REO Property, the state of the local economy and the Trust Fund's obligation to
dispose of any REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Seller, the Master Servicer, the Special Servicer
or the Trust Fund (except that any contract of sale and assignment and
conveyance documents may contain customary warranties of title, so long as the
only recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Master
Servicer, the Seller, the Fiscal Agent and the Trustee pursuant to the terms of
this Agreement, no such Person who so performed shall have any liability to the
Trust Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer, if the offeror is not an Interested Person (or
the Trustee, if an Interested Person is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code.
(e) The proceeds of any sale pursuant to this Section 3.18 after deduction
of the expenses of such sale incurred in connection therewith shall be promptly,
and in any event within one Business Day following receipt thereof, deposited in
the Collection Account in accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Master Servicer; Inspections;
Successor Manager.
(a) The Master Servicer (or, with respect to Specially Serviced Mortgage
Loans and REO Properties, the Special Servicer) shall inspect or cause to be
inspected each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (i) with an Allocated Loan Amount of (a) $5,000,000 or more
at least once every 12 months and (b) less than $5,000,000 at least once every
24 months, in each case commencing in May 1999 (or at such lesser frequency as
each Rating Agency shall have confirmed in writing to the Master Servicer will
not result in a downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of the Certificates) and (ii) if any Mortgage Loan
(a) becomes a Specially Serviced Mortgage Loan, (b) has a debt service coverage
ratio (calculated as provided in the related Loan Documents) of less than 1.0x
for the immediately preceding twelve-month period or (c) is delinquent for 60
days, the related Mortgaged Property shall be inspected by the Master Servicer
(or the Special Servicer with respect to Specially Serviced Mortgage Loans) as
soon as practicable and thereafter at least every 12 months for so long as such
condition exists. The cost of any such inspection shall be borne by the Master
Servicer unless the related Mortgage Loan is a Specially Serviced Mortgage Loan,
in which case any out-of-pocket costs incurred with respect to such inspection
shall be treated as a Property Advance and borne by the Trust Fund.
(b) With respect to each Mortgage Loan, the Master Servicer and the Special
Servicer (with respect to Specially Serviced Mortgage Loans) shall enforce the
Trustee's rights with respect to the Manager under the related Loan Documents
and Management Agreement. In the event the Master Servicer or the Special
Servicer (with respect to Specially Serviced Mortgage Loans) is entitled to
terminate or cause the related Borrower to terminate the Manager, the Master
Servicer or the Special Servicer, as the case may be, shall promptly give notice
of its right to terminate the Manager to the Trustee (who shall copy the
Certificateholders and the Rating Agencies), the related Originator, the Master
Servicer or Special Servicer, as applicable, and the Seller. After receipt of
such notice, the most subordinate Class of Certificates then outstanding shall
have the right to recommend termination of the Manager, and if so, to recommend
a Successor Manager (meeting the requirements set forth below).
Certificateholders representing Voting Rights of greater than 50% of such
subordinate Class of Certificates will have ten Business Days from the receipt
of such notice to respond to such notice. Upon receipt of a recommendation to
terminate the Manager and appoint a Successor Manager, the Master Servicer or
the Special Servicer, as the case may be, shall give notice of such
recommendation to the Trustee (who shall copy the Certificateholders), and the
Master Servicer or Special Servicer, as applicable, shall effect such
recommendation unless: (i) within five Business Days of the receipt of notice of
such recommendation, Certificateholders representing Voting Rights of greater
than 50% of any Class of Certificates then outstanding which was assigned a
rating by any Rating Agency on the Closing Date reject such proposed Successor
Manager in which case the Master Servicer or the Special Servicer, as the case
may be, shall procure a Successor Manager as set forth in the following
sentence; or (ii) the Master Servicer or the Special Servicer, as the case may
be, determines that effecting such recommendation to terminate is not consistent
with the Servicing Standard, and therefore elects not to effect such
recommendation. If the Master Servicer or the Special Servicer, as the case may
be, does not receive a required response (or if the response received is
inconsistent) and the Master Servicer or Special Servicer, as the case may be,
determines it is consistent with the Servicing Standard to terminate the Manager
or in the event the Manager is otherwise terminated or resigns under the related
Mortgage or Management Agreement, the Master Servicer or the Special Servicer,
as the case may be, shall use its best efforts to retain a Successor Manager (or
the recommended Successor Manager, if any) on terms substantially similar to the
Management Agreement or, failing that, on terms as favorable to the Trust Fund
as can reasonably be obtained. A "Successor Manager" shall be reasonably
acceptable to the Master Servicer or the Special Servicer, as the case may be,
and a professional management corporation or business entity which (i) manages,
and is experienced in managing, other comparable commercial properties, (ii)
will not result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates by each Rating Agency, as confirmed in
writing by each Rating Agency, and (iii) otherwise satisfies any criteria set
forth in the Mortgage and related Loan Documents.
SECTION 3.20. Reports to the Securities and Exchange Commission; Available
Information.
(a) The Trustee shall prepare, sign, and electronically file on behalf of
the Seller, and at the expense of the Seller, any and all Exchange Act Reports
as may be required with respect to the Certificates pursuant to this Agreement;
provided, however, that the Seller shall prepare, sign and file with the
Commission the initial Form 8-K relating to the Trust Fund. In the event the
Seller notifies the Trustee, the Master Servicer and the Special Servicer in
writing as to any change in the Exchange Act reporting requirements applicable
to the Certificates, the Trustee, the Special Servicer and the Master Servicer
shall conform the reporting obligations as set forth herein to any such changes
as notified by the Seller. The Master Servicer and the Special Servicer agree to
provide such information to the Trustee and such entity as is designated by the
Seller pursuant to Section 3.20(f) in a timely fashion as may be requested by
the Trustee in connection with such Exchange Act Reports, so that such Exchange
Act Reports may be timely filed by the Trustee. Manually-signed copies of each
Exchange Act 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.
On a monthly basis, the Trustee will file on behalf of the Trust Fund
within 15 days after the Distribution Date a Form 8-K that would include the
following: (i) the Monthly Distribution Statement, and (ii) certain information
received from the Borrowers under the Loan Documents to the extent received by
the Trustee in electronic format as follows: (a) the most recent monthly
operating statement received from each Borrower including a statement or
specific notation of capital expenditures, leasing commissions, and tenant
improvements; and (b) to the extent received since the filing of the immediately
preceding Form 8-K filed pursuant to this paragraph with respect to each
Mortgage Loan: (1) an officer's certificate of the Borrower, (2) occupancy
reports, (3) tenant sales per square foot and rent per square foot by
merchandise category, (4) all tenant notices, and (5) tenant change reports or
listing of tenants that declared bankruptcy or had lease expirations that did
not renew.
On a quarterly basis, the Trustee will file, to the extent the Trustee
receives the information set forth below in electronic format, within 45 days
after the end of the relevant Borrower's fiscal quarter a Financial Report for
those Borrowers which represent 10% or more of the aggregate Stated Principal
Balance of the Mortgage Loans (on the date hereof, the URS Pool Loan, the
Xxxxxxxxxx Pool B Loan, the Xxxxxxxxxx Pool A Loan, the Green Acres Loan and the
Americold Pool Loan). The quarterly Financial Report with respect to (i) those
Mortgage Loans that represent 20% or more of the aggregate Stated Principal
Balance of the Mortgage Loans shall consist of unaudited financial statements
with respect to the Mortgaged Properties securing such Mortgage Loans, and (ii)
those Mortgage Loans that represent 10% or more but less than 20% of the
aggregate Stated Principal Balance of the Mortgage Loans (on the date hereof,
the URS Pool Loan, the Xxxxxxxxxx Pool B Loan, the Xxxxxxxxxx Pool A Loan, the
Green Acres Loan and the Americold Pool Loan) shall consist of summarized
quarterly financial information (substantially in the form set forth in the
Seller's Prospectus Supplement dated May 14, 1998 relating to the Certificates)
as described in Rule 1.02(bb) of Regulation S-X with respect to the Mortgaged
Properties securing such Mortgage Loan. In addition, to the extent received
since the filing of the immediately preceding Financial Report filed pursuant to
this paragraph with respect to the other Mortgage Loans, the Trustee shall
promptly file the quarterly financial statements for each Borrower received
pursuant to the Loan Documents.
On an annual basis, the Trustee will file, to the extent the Trustee
receives the information set forth below in electronic format, within 90 days
after the end of the relevant Borrower's fiscal year end a Financial Report for
those Borrowers which represent 10% or more of the aggregate Stated Principal
Balance of the Mortgage Loans (on the date hereof, the URS Pool Loan, the
Xxxxxxxxxx Pool B Loan, the Xxxxxxxxxx Pool A Loan, the Green Acres Loan and the
Americold Pool Loan). The annual Financial Report with respect to (i) those
Mortgage Loans that represent 20% or more of the aggregate Stated Principal
Balance of the Mortgage Loans shall consist of audited financial statements with
respect to the Mortgaged Properties securing such Mortgage Loans, and (ii) those
Mortgage Loans that represent 10% or more but less than 20% of the aggregate
Stated Principal Balance of the Mortgage Loans (on the date hereof, the URS Pool
Loan, the Xxxxxxxxxx Pool B Loan, the Xxxxxxxxxx Pool A Loan, the Green Acres
Loan and the Americold Pool Loan) shall consist of summarized annual financial
information (substantially in the form set forth in the Seller's Prospectus
Supplement dated May 14, 1998 relating to the Certificates) as described in Rule
1.02(bb) of Regulation S-X with respect to the Mortgaged Properties securing
such Mortgage Loan. In addition, to the extent received since the filing of the
immediately preceding Financial Report filed pursuant to this paragraph with
respect to the other Mortgage Loans, the Trustee shall promptly file the annual
audited financial statements for each Borrower received pursuant to the Loan
Documents.
The Master Servicer, each Special Servicer and the Trustee hereby agree to
cooperate with the Borrowers and their accountants in obtaining any consents of
accountants that are required to be filed with any financial statements being
filed on a Form 10-K or Form 8-K.
If information for any Financial Report is incomplete by the date on which
required to be filed, the Trustee shall prepare and execute a Form 12b-25 and
shall deliver a manually signed version of such form to the Seller as provided
above.
None of the Master Servicer, the Special Servicer and the Trustee shall (i)
file a Form ID with respect to the Seller or (ii) cause the Trust Fund to stop
filing reports, statements and information with the Commission pursuant to this
Section unless directed to do so by the Seller or the continued reporting is
prohibited under the Exchange Act or any regulations thereunder. Upon the
written request of the Seller, the Trustee shall file a Form 15 relating to the
Trust Fund with the Commission and send a copy thereof to the Seller. To the
extent that the Certificates are held of record by less than 300 persons within
the meaning of Section 15(d) of the Exchange Act, the Trustee shall, upon the
written request of the Seller, file on or before January 29, 1999, or within 15
days following the end of such later fiscal year in which the Certificates are
held of record by less than 300 persons within the meaning of Section 15(d) of
the Exchange Act, a Form 15 in accordance with the provisions of Rule 12h-3
under the Exchange Act, suspending the reporting obligations set forth herein
and in Section 3.20(b).
(b) The Master Servicer shall promptly prepare and provide to the Trustee a
report (each, a "Special Event Report") reporting (i) any notice from a Borrower
or insurance company, or any knowledge otherwise obtained, regarding an upcoming
voluntary or involuntary prepayment (including that resulting from a casualty or
condemnation) or defeasance of all or part of the related Mortgage Loan
(provided that a request by a Borrower or other Person for a quotation of the
amount necessary to satisfy all obligations with respect to a Mortgage Loan
shall not, in and of itself, be deemed to be such notice); (ii) any imminent or
actual monetary default or other default on a Mortgage Loan the results of which
the Master Servicer, after consultation with the Special Servicer, reasonably
believes is likely to result in the acceleration of the indebtedness due under
such Mortgage Loan; (iii) the results of any property inspection of which the
Master Servicer has knowledge and which has revealed any material damage or
deterioration or the presence of any environmental condition with respect to any
Mortgaged Property; (iv) any notice from a Borrower, or any knowledge otherwise
obtained, regarding any litigation involving such Borrower or any related
Mortgaged Property which the Master Servicer reasonably believes is likely to
have an adverse effect on the Mortgaged Property or the ability of such Borrower
to pay the amounts due under the related Mortgage Loan; (v) any notice received
from a Borrower, Manager or tenant of a Mortgaged Property, or any knowledge
otherwise obtained, regarding the material default of such tenant under the
terms of its lease or early termination by either the tenant or the Borrower of
such lease, the bankruptcy of such tenant or its direct or indirect parent, the
loss of a license or permit relating to the Mortgaged Property or other material
adverse tenant activity; (vi) any amendment, modification or waiver of a
material provision of a Mortgage Loan of which the Master Servicer has
knowledge; (vii) any event of which the Master Servicer has actual knowledge
(other than an event covered by clause (i)) which would result in the release of
any part of the Mortgaged Property; (viii) with respect to the Crystal City Pool
Loan, any notice received from a tenant affecting 10,000 or more rentable square
feet alleging a default under its lease, threatening nonpayment of rent,
requesting a termination or modification of such lease, exercising any option of
the tenant under its lease, or involving any other material correspondence, (ix)
with respect to the One Commerce Square Loan, any notice received from a tenant
affecting 25,000 or more rentable square feet threatening nonpayment of rent,
requesting a termination or modification of a lease, exercising or not
exercising any option provided for in such tenant's lease, or involving any
other material correspondence, (x) with respect to the Showcase Loan, any notice
received from a tenant alleging a default under its lease, threatening
nonpayment of rent, requesting a termination or modification of such lease,
exercising any option of the tenant under its lease, or involving any other
material correspondence, (xi) with respect to the Xxxxxxxxxx Pool A Loan, any
notice received from a franchisor that the related Borrower has not complied
with any of its obligations under such franchise agreement or altering in any
material respect the rules, standards and requirements of such franchisor, (xii)
with respect to the Xxxxxxxxxx Pool B Loan, any notice received from a
franchisor that the related Borrower has not complied with any of its
obligations under such franchise agreement or altering in any material respect
the rules, standards and requirements of such franchisor, (xiii) with respect to
the Pier 39 Loan, any notice received from a tenant affecting 7,500 or more
rentable square feet alleging a default under its lease, threatening nonpayment
of rent, requesting a termination or modification of such lease, exercising any
option of the tenant under its lease, or involving any other material
correspondence, (xiv) with respect to each of the Americold Pool Loan and the
URS Pool Loan, any notice of default received by a party to the respective
master lease, property management agreement, operating agreement or any other
agreement requiring the related Borrower to pay, or entitling it to receive,
more than $2,000,000 per annum and not cancellable without a penalty of $500,000
or more, relating to the ownership, development, use, operation, leasing,
maintenance or repair of the related Mortgaged Property, and (xv) with respect
to the Green Acres Loan, any notice of default received by a party to the
property management agreement or any other material agreement relating to the
ownership, development, use, operation, leasing, maintenance or repair of the
related Mortgaged Property, or any reciprocal easement and/or operating
agreements, covenants, conditions and restrictions, and similar agreements
affecting the related Mortgaged Property and binding upon and/or benefiting the
related Borrower and other third parties.
With respect to any Specially Serviced Mortgage Loan or any REO Property,
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 other known event with respect to a Mortgage Loan or REO
Property that the Master Servicer or the Special Servicer, respectively,
determines 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.
(c) The Master Servicer shall collect on a monthly basis all information
required pursuant to the Mortgage Loans. The Master Servicer shall from time to
time contact the Borrowers regarding the delivery of financial information
required by the Loan Documents commencing at least 15 days prior to the date on
which each Borrower is obligated to provide the Master Servicer with quarterly
and annual financial statements or reports so that such statements and reports
will be delivered to the Master Servicer in a timely fashion. The Master
Servicer will cause such information to be provided for the Trustee to enable
the Trustee to comply with the Exchange Act reporting requirements in this
Section 3.20. Promptly following the end of each calendar quarter and the end of
each calendar year, the Master Servicer shall prepare a Summary Report in the
form of Exhibit H for each Mortgage Loan based on information provided to the
Master Servicer by the Borrowers without modification, interpretation or
analysis (except that the Master Servicer will use its best efforts to isolate
management fees and funded reserves from Borrower reported expenses, if
necessary). The Master Servicer shall deliver a copy of each Summary Report to
the Trustee. None of the Master Servicer, the Special Servicer and the Trustee
shall be responsible for the completeness or accuracy of such information
provided by the Borrowers (except that the Master Servicer will use its best
efforts to correct patent errors).
(d) The Master Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed to the
extent the Master Servicer deems such action to be necessary or appropriate),
also make available any additional information relating to the Mortgage Loans,
the Mortgaged Properties or the Borrowers, for review by the Seller, the Rating
Agencies, the Certificateholders and any other Persons to whom the Master
Servicer believes such disclosure is appropriate, in each case except to the
extent doing so is prohibited by applicable law or by any related Loan Documents
related to a Mortgage Loan. The Master Servicer may, but is not required to,
make information which is otherwise available to the public available on the
Internet.
(e) The Trustee shall deliver a copy of each Summary Report and Annual
Compliance Report to each Rating Agency and, upon request, to each
Certificateholder and Beneficial Owner (provided that each Certificateholder and
Beneficial Owner may only make one request per month and will be required to pay
any expenses incurred by the Trustee in connection with the provision of such
information). The Trustee shall also deliver a copy of each Special Event Report
to each Rating Agency, Certificateholder and, if known, Beneficial Owner within
one Business Day of receipt. The Trustee shall so deliver the foregoing
information and reports and shall file such Summary Reports and Annual
Compliance Reports annually on Form 10-K and shall file such Special Event
Reports on Form 8-K promptly upon the occurrence of the applicable event, in
each case unless the Trust Fund is no longer filing Exchange Act Reports. The
Trustee shall also make available at its offices primarily responsible for
administration of the Trust Fund, 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 Rating Agencies, any
Certificateholder, any Person identified to the Trustee by a Certificateholder
as a prospective transferee of a Certificate and any other Persons to whom the
Trustee believes such disclosure is appropriate, the following items: (i) this
Agreement, (ii) all Monthly Distribution Statements, (iii) all Annual Compliance
Reports, (iv) all Summary Reports and (v) all Special Event Reports.
The Master Servicer and the Special Servicer shall make available at its
offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies) for
review by the Seller, the Trustee, the Rating Agencies, any Certificateholder,
any Person identified to the Master Servicer or the Special Servicer, as
applicable, by a Certificateholder as a prospective transferee of a Certificate
and any other Persons to whom the Master Servicer or the Special Servicer, as
applicable, believes such disclosure to be appropriate the following items: (i)
all financial statements, occupancy information, rent rolls and similar
information received by the Master Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Master Servicer or the Special Servicer, as applicable, in
connection with the property inspections pursuant to Section 3.19, (iii) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Master Servicer or the Special Servicer, as applicable, and
(iv) any and all officer's certificates and other evidence delivered to the
Trustee and the Seller to support the Master Servicer's determination that any
Advance was, or if made would be, a Nonrecoverable Advance. The Master Servicer
may require that such party execute a reasonable confidentiality agreement
customary in the industry (and approved by the Seller) with respect to such
information.
Copies of any and all of the foregoing items shall be available from the
Master Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request at the requesting party's expense.
(f) The Seller shall designate, and pay the expenses of, a financial
printer or other entity (which may be the Trustee) to prepare the materials
required to be filed pursuant to this Section 3.20 for filing via the XXXXX
system, and the Master Servicer and Special Servicer shall each cooperate fully
with such entity and the Master Servicer and the Special Servicer shall provide
the information required hereunder, to the extent made available by the related
Borrowers, in a timely manner in order to allow the Trustee to file such
materials at the times required hereunder. In the event the Trustee does not
receive in electronic format Borrower information it receives in hard copy
format within two Business Days after it receives the information in hard copy,
the Trustee shall promptly notify the Seller by telephone or by facsimile
transmission.
(g) Notwithstanding any other provision of this Section 3.20, at least
three Business Days prior to the date upon which any materials are required to
be filed with the Commission pursuant to the terms hereof, the Trustee shall
provide a copy of such filing, in hard copy form (or such electronic format
acceptable to the Seller), to the Seller (with a copy to the Underwriter). The
Seller shall review such filing and make any necessary corrections to such
filing or direct the Trustee not to make such filing prior to the date such
materials are required to be filed pursuant to the terms hereof.
SECTION 3.21. Lock-Box Accounts, Escrow Accounts and Reserve Accounts.
The Master Servicer shall administer each Lock-Box Account, Escrow Account
and Reserve Account in accordance with the related Mortgage or Loan Agreement or
Lock-Box Agreement, if any, and administer any letters of credit pursuant to the
related letter of credit agreement and the Loan Documents.
SECTION 3.22. Property Advances.
(a) The Master Servicer (or, to the extent provided in Section 3.22(b), the
Trustee or the Fiscal Agent or, to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof.
For purposes of distributions to Certificateholders and compensation to the
Master Servicer, Special Servicer or Trustee, Property Advances shall not be
considered to increase the principal balance of any Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so provide.
(b) The Master Servicer shall notify the Trustee and the Fiscal Agent, and
the Special Servicer shall notify the Master Servicer, the Trustee and the
Fiscal Agent, in writing promptly upon, and in any event within one Business Day
after, becoming aware that it will be unable to make any Property Advance
required to be made pursuant to the terms hereof, and in connection therewith,
shall set forth in such notice the amount of such Property Advance, the Person
to whom it will be paid, and the circumstances and purpose of such Property
Advance, and shall set forth therein information and instructions for the
payment of such Property Advance, and, on the date specified in such notice for
the payment of such Property Advance, or, if the date for payment has passed or
if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Master Servicer, and if the Master Servicer so
fails, the Trustee), subject to the provisions of Section 3.22(c), shall pay the
amount of such Property Advance in accordance with such information and
instructions. If the Trustee fails to make any Property Advance required to be
made under this Section 3.22, the Fiscal Agent, subject to the provisions of
Section 3.22(c), shall make such Advance on the same day the Trustee was
required to make such Property Advance and, thereby, the Trustee shall not be in
default under this Agreement.
(c) None of the Master Servicer, the Trustee, the Fiscal Agent or the
Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Master Servicer, the Trustee, the Fiscal
Agent or the Special Servicer, as applicable, determines that such Advance will
be a Nonrecoverable Advance. The Trustee and the Fiscal Agent (or the Master
Servicer with respect to a Property Advance required to be made by the Special
Servicer) shall be entitled to rely, conclusively, on any determination by the
Master Servicer or Special Servicer, as applicable, that a Property Advance, if
made, would be a Nonrecoverable Advance. The Trustee, the Fiscal Agent and the
Special Servicer, in determining whether or not a Property Advance previously
made is, or a proposed Property Advance, if made, would be, a Nonrecoverable
Advance shall be subject to the standards applicable to the Master Servicer
hereunder.
(d) The Master Servicer, the Special Servicer, the Trustee and/or the
Fiscal Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Master Servicer and Special Servicer
hereby covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.23. Appointment of Special Servicer.
(a) The Master Servicer is hereby appointed as the initial Special Servicer
to service each of the Mortgage Loans.
(b) Certificateholders representing greater than 50% of the Percentage
Interests of the most subordinate Class of Certificates outstanding 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 Certificateholders as aforesaid
with respect to only one or more Mortgage Loans and remain the Special Servicer
with respect to the remainder of the Mortgage Loans; 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.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Master Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the initial
Special Servicer specified in Section 3.23(a) above shall not be liable for any
actions or any inaction of such successor Special Servicer. Any termination fee
payable to the terminated Special Servicer (and it is acknowledged that there is
no such fee payable in the event of a termination of the Master Servicer as
Special Servicer following the occurrence of an event of default hereunder)
shall be paid by the Certificateholders so terminating the Special Servicer and
shall not in any event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee and each Rating Agency, as evidenced in
writing and the Trustee has received written confirmation from each Rating
Agency that such appointment would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then current ratings on any Certificates.
(e) Any successor Special Servicer shall be deemed to make the
representations and warranties provided for in Section 2.04(a) mutatis mutandis
as of the date of its succession.
SECTION 3.24. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Master Servicer shall immediately give notice thereof to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (but excluding the original documents
constituting the Mortgage File) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its duties hereunder with respect thereto without acting through a
sub-servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Master Servicer and administrator of such Mortgage Loan until the Special
Servicer has commenced the servicing of such Mortgage Loan, which shall occur
upon the receipt by the Special Servicer of the information, documents and
records referred to in the preceding sentence. With respect to each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan, the Master Servicer shall
instruct the related Borrower to continue to remit all payments in respect of
such Mortgage Loan to the Master Servicer. If GMAC Commercial Mortgage
Corporation ceases to be the Master Servicer or the Special Servicer, the
successor Master Servicer or Special Servicer, as applicable, may agree that,
notwithstanding the preceding sentence, with respect to each Mortgage Loan that
became a Specially Serviced Mortgage Loan, the Master Servicer shall instruct
the related Borrower to remit all payments in respect of such Mortgage Loan to
the Special Servicer, provided that the payee in respect of such payments shall
remain the Master Servicer. The Special Servicer shall remit to the Master
Servicer any such payments received by it pursuant to the preceding sentence
within one Business Day of receipt. The Master Servicer shall forward any
notices it would otherwise send to the Borrower of a Specially Serviced Mortgage
Loan to the Special Servicer who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Master Servicer and, upon giving such notice, such Mortgage Loan shall cease to
be a Specially Serviced Mortgage Loan in accordance with the first proviso of
the definition of Specially Serviced Mortgage Loans, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Master Servicer to service and administer such Mortgage Loan as a Mortgage
Loan that is not a Specially Serviced Mortgage Loan shall resume. In addition,
if the related Borrower has been instructed, pursuant to the preceding
paragraph, to make payments to the Special Servicer, upon such determination,
the Special Servicer shall instruct the related Borrower to remit all payments
in respect of such Specially Serviced Mortgage Loan directly to the Master
Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
(c) Not later than the Business Day preceding each date on which the Master
Servicer is required to furnish a report under Section 3.13(a) to the Trustee,
the Special Servicer shall deliver to the Master Servicer a written statement
describing, on a Mortgage Loan by Mortgage Loan basis, (i) the amount of all
payments on account of interest received on each Specially Serviced Mortgage
Loan, the amount of all payments on account of principal, including Principal
Prepayments, on each Specially Serviced Mortgage Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan, and the amount of net income or net loss, as
determined from 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
rental income that does not constitute Rents from Real Property with respect to
the REO Property relating to each applicable Specially Serviced Mortgage Loan,
in each case in accordance with Section 3.17 and (ii) such additional
information relating to the Specially Serviced Mortgage Loans as the Master
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement.
(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 other than the Crystal City Pool Loan, 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.
(a) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, then the Master Servicer or the Special Servicer, as the case may be,
may only consent to either such action, or grant a waiver with respect thereto,
if the Master Servicer or the Special Servicer determines that such consent or
waiver is likely to result in a greater recovery on a present value basis
(discounted at the related Mortgage Rate) than would not consenting to such
action and the Master Servicer or the Special Servicer first obtains written
confirmation from each Rating Agency that such consent or grant of a waiver
would not, in and of itself, result in a downgrade, qualification or withdrawal
of any of the then current ratings assigned to the Certificates. Any such
consent or waiver shall also satisfy the criteria set forth in Section 3.09 (b),
to the extent applicable.
(b) 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. To the
extent such fees exceed the Rating Agency Monitoring Fee, the Seller shall
reimburse the Master Servicer for such shortfall and to the extent that such
fees are less than the Rating Agency Monitoring Fee, the Master Servicer shall
remit such excess to the Seller. In the event that Rating Agency confirmation is
required in connection with any exercise of rights by the Master Servicer or the
Special Servicer, as applicable, under any Mortgage Loan, the Master Servicer or
Special Servicer, as the case may be, shall use its reasonable best efforts to
cause the related Borrower to pay any fee required by the applicable Rating
Agency for such confirmation. If the related Borrower does not pay such fee, and
the Mortgage Loan is a Specially Serviced Mortgage Loan, such fee shall be paid
by the Master Servicer or Special Servicer, as the case may be, as an Advance
and shall be borne by the Trust Fund. If the Borrower does not pay such fee, and
the Mortgage Loan is not a Specially Serviced Mortgage Loan, the Seller shall
pay such fee.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) The Master Servicer or the Special Servicer, as applicable, shall be
permitted, in its discretion, to waive all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Borrower has requested the right
to prepay the Mortgage Loan in full together with all payments required by the
Mortgage Loan in connection with such prepayment except for all or a portion of
accrued Excess Interest, provided that the Master Servicer or the Special
Servicer, as applicable, determines (taking into account the value and revenues
of the related Mortgaged Property and the ability of the Borrower to pay the
Mortgage Loan (including such Excess Interest)) that (1) in the absence of the
waiver of such Excess Interest, there is a reasonable likelihood that the
Mortgage Loan will not be paid in full on the related Maturity Date and (2) the
waiver of the right to such accrued Excess Interest is reasonably likely to
produce a larger (and not equivalent) payment in the aggregate to
Certificateholders on a present value basis than a refusal to waive the right to
such Excess Interest. The Master Servicer shall have no liability to the Trust
Fund, the Certificateholders or any other person so long as such determination
is based on such criteria. In no event shall such waiver of such Excess Interest
be effective prior to the date of actual prepayment in full (other than such
waived Excess Interest), and such waiver shall in no event be effective if such
prepayment is not made.
(h) 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.
(i) For any Mortgage Loan and with respect to which, under the terms of the
related Loan Documents, the mortgagee may, in its discretion, apply Insurance
Proceeds, condemnation awards or escrowed funds to the prepayment of such loan
prior to the expiration of the related Lock-out Period, the Master Servicer or
Special Servicer, as applicable, may only require such a prepayment if the
Master Servicer or Special Servicer, as applicable, has determined in accordance
with the Servicing Standard that such prepayment is in the best interests of the
Certificateholders.
SECTION 3.27. Modifications.
(a) During the term of a Mortgage Loan, the Special Servicer, may,
consistent with the Servicing Standard, agree to modify a Specially Serviced
Mortgage Loan to reduce the amount of principal (but, except as provided in this
Section 3.27, not interest) payable monthly on such Mortgage Loan, provided that
(a) a material default in respect of payment on such Mortgage Loan has occurred
or, in the Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and such
modification is reasonably likely to produce a greater recovery to
Certificateholders, on a net present value basis, than would liquidation; (b)
the Special Servicer terminates the related manager (unless the Special Servicer
determines that retaining such manager is conducive to maintaining the value of
the related Mortgaged Properties); and (c) the Special Servicer may only agree
to reductions of monthly payments of principal constituting deferrals and not
forgiveness of principal and lasting a period of no more than twelve consecutive
months and, in the aggregate, to no more than three reductions of twelve months
or less each; provided, however, Certificateholders representing greater than
66-2/3% of all Voting Rights may direct the Special Servicer not to agree to any
such modification. The Special Servicer shall promptly provide a copy of such
proposed modification to the Master Servicer, the Rating Agencies and the
Trustee. The Trustee shall, within two Business Days, notify, in writing, all of
the Certificateholders that have Voting Rights of such proposed modification.
For purposes of determining whether Certificateholders representing 66-2/3% of
all Voting Rights have directed the Special Servicer not to agree to such
modification, each Certificateholder shall have 15 days following the date of
the Trustee's notice to respond to such notice, and any Certificateholder that
has not responded within such time period shall be deemed to have consented to
such modification.
Additionally, the Special Servicer may, consistent with the Servicing
Standard, agree to any modification, waiver or amendment of any term or forgive
or defer interest on and principal of, and/or add collateral for, any Mortgage
Loan with the consent of Certificateholders representing 100% of the Percentage
Interests of the most subordinate Class of Certificates then outstanding (the
"Directing Class"), subject, however, to each of the following limitations,
conditions and restrictions: (a) a material default in respect of such Mortgage
Loan has occurred or, in the Special Servicer's reasonable and good faith
judgment, a default in respect of payment on such Mortgage Loan is reasonably
foreseeable, and such modification, waiver, amendment or other action is
reasonably likely to produce a greater recovery to Certificateholders, on a net
present value basis, than would liquidation; (b) no reduction in the scheduled
monthly payment of interest on any Mortgage Loan as a result of such
modification, waiver or amendment may result in an Interest Shortfall (as
computed by the Trustee) to any Class other than the Directing Class, determined
as of the date of such modification, waiver or amendment; (c) any reduction in
the scheduled monthly payment of principal and/or interest on any Mortgage Loan
must require that all cash flow on all related Mortgaged Properties in excess of
amounts required to operate and maintain such Mortgaged Properties be applied to
payments of principal and interest on such Mortgage Loan; (d) the Special
Servicer may only agree to reductions of principal and/or interest lasting a
period of no more than twelve consecutive months and, in the aggregate, to no
more than three periods of twelve months or less each; (e) the Special Servicer
may not reduce any Prepayment Premium or Lock-out Period; (f) the Special
Servicer may not at any time forgive principal of a Mortgage Loan to the extent
that the amount forgiven, together with all amounts of principal previously
forgiven pursuant to this paragraph would be in excess of (i) the Certificate
Principal Amount of the Directing Class less the sum of (ii) the aggregate
amount of Appraisal Reduction Amounts then outstanding and (iii) the aggregate
amount of Interest Shortfalls (as computed by the Trustee) then outstanding
(other than with respect to the Directing Class with respect to Interest
Shortfalls); and (g) the Special Servicer shall not permit any Borrower to add
any real property collateral unless the Special Servicer has first determined in
accordance with the Servicing Standard, based upon an environmental assessment
prepared by an Independent Person who regularly conducts environmental
assessments, at the expense of the Borrower, that such additional real property
collateral is in compliance with applicable environmental laws and regulations
and that there are no circumstances or conditions present with respect to such
new collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
and/or regulations. Notwithstanding the foregoing, the Trustee shall promptly
upon request provide the Special Servicer with such information as is in its
possession and as is reasonably necessary to enable the Special Servicer to make
the determinations required by clauses (b) and (f) above. If the
Certificateholders representing 100% of the Percentage Interests of the second
most subordinate Class of Certificates then outstanding consent to such
modification, waiver or amendment, the Directing Class for purposes of the
determinations made in clauses (b) and (f) shall include the second most
subordinate Class of Certificates and the amount by which principal can be
reduced shall not be in excess of 80% of the aggregate principal balance of both
such Classes less the items specified in clause (f)(ii) and (f)(iii). A
modification pursuant to this paragraph is not subject to the veto of
Certificateholders set forth in the preceding paragraph of this Section.
(b) Notwithstanding Section 3.27(a), the Master Servicer or the Special
Servicer, as applicable, shall be permitted to modify, waive or amend any term
of a Mortgage Loan that is not in default or as to which default is not
reasonably foreseeable, but only if such modification, waiver or amendment (a)
would not be "significant" as such term is defined in Code Section 1001 and
Treasury Regulations Section 1.860G-2(b)(3), as determined by the Master
Servicer or Special Servicer (and the Master Servicer or Special Servicer may
rely on an Opinion of Counsel in making such determination), (b) would be in
accordance with the Servicing Standard and (c) would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
Notwithstanding anything herein to the contrary, during the first 90 days after
the Closing Date, the Master Servicer or the Special Servicer, as applicable,
shall permit any Mortgage Loan to be amended or modified solely for the purposes
of adding guarantors (limited or otherwise) of some or all of the obligations
under such Mortgage Loan, so long as each Rating Agency shall have confirmed in
writing that such amendment or modification will not result in a qualification,
withdrawal or downgrading of the then current ratings assigned to the
Certificates. 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.
(c) The Master Servicer or Special Servicer, as applicable, shall provide
copies of any modifications, waivers or amendments pursuant to this Section 3.27
to each Rating Agency and to the Seller.
SECTION 3.28. Servicing of the Marriott Desert Springs Parent Loan.
(a) The Master Servicer shall service the Marriott Desert Springs Parent
Loan in accordance with the terms of this Section 3.28 and as otherwise provided
herein. Except as provided below, the Master Servicer shall service the Marriott
Desert Springs Parent Loan in the best interests of and for the benefit of the
Class M and the Class MX Certificateholders (as determined by the Master
Servicer in the exercise of its good faith and reasonable judgment) and in
accordance with applicable law, the specific terms of the Marriott Desert
Springs Parent Loan 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 loan servicing on behalf of
third parties or on behalf of itself, whichever is higher, with respect to loans
comparable to the Marriott Desert Springs Parent Loan, and in each event with a
view to the timely collection of all scheduled payments of principal and
interest under the Marriott Desert Springs Parent Loan, but in any case without
regard to:
(i) any known relationship that the Master Servicer, or any
Affiliate of the Master Servicer may have with the Marriott
Desert Springs Parent Borrower or any other parties to this
Agreement;
(ii) the ownership of any Certificate by the Master Servicer or any
Affiliate of the Master Servicer; and
(iii) the Master Servicer's obligation to incur servicing expenses
with respect to the Marriott Desert Springs Parent Loan.
Subject to the above-referenced servicing standard, the Master Servicer
shall enforce the rights of the lender under the Loan Documents for the Marriott
Desert Springs Parent Loan and shall have full power and authority, acting 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 such servicing standard
and, in its reasonable judgment, in the best interests of the Class M and the
Class MX Certificateholders. On each Due Date, the Master Servicer shall, to the
extent permitted by the Loan Documents with respect to the Marriott Desert
Springs Loan and the Marriott Desert Springs Parent Loan and the related
Lock-Box Agreement, withdraw an amount equal to the MDSPL Debt Service Amount
from the Marriott Desert Springs Loan Lock-Box and deposit such amount into the
Class M Collection Account. In addition, the Master Servicer shall deposit
promptly, but in any event, within two Business Days of receipt, all other
collections on the Marriott Desert Springs Parent Loan into the Class M
Collection Account, unless the Master Servicer is otherwise permitted to retain
any portion thereof pursuant to the terms of this Agreement. In the event of any
default by the Borrower under the Marriott Desert Springs Parent Loan, the
Master Servicer (except as otherwise provided in this Section 3.28(a)) shall
take such actions as are necessary to realize on the Marriott Desert Springs
Pledged Collateral pursuant to this Agreement, the terms of the Marriott Desert
Springs Parent Loan, the related Loan Documents and applicable law. Any Holder
of a Class M Certificate is permitted to bid at any foreclosure or other sale of
the Marriott Desert Springs Pledged Collateral conducted in accordance with
applicable law, and, to the extent permitted by applicable law, shall be
entitled to a credit in an amount equal to the outstanding balance due on such
Certificate. At no time shall the Marriott Desert Springs Parent Loan be
considered a Specially Serviced Mortgage Loan.
Notwithstanding the foregoing, and subject to the second and third
succeeding paragraphs, following a default by the Borrower under the Marriott
Desert Springs Parent Loan, the Master Servicer shall take such actions as may
be directed by 100% of the Holders of the Class M Certificates.
Notwithstanding the foregoing, neither the Master Servicer nor the Trustee
shall (i) make any advances for delinquent payments with respect to the Marriott
Desert Springs Parent Loan, (ii) be entitled to reimbursement with respect to
ordinary and recurring costs and expenses incurred by it in connection with the
servicing and/or administration of its duties hereunder with respect to the
Marriott Desert Springs Parent Loan, (iii) be entitled to reimbursement with
respect to extraordinary expenses incurred by it in connection with the
servicing and/or administration of its duties with respect to the Marriott
Desert Springs Parent Loan except from collections on (including liquidation
proceeds, late payments and other collections) the Marriott Desert Springs
Parent Loan; provided, however, that the Master Servicer will not be required to
expend its own funds in connection with the expenses set forth in this clause
(iii) to the extent the Master Servicer determines, in its good faith,
reasonable judgment, that such expenses (including interest thereon at the
Advance Rate) would not ultimately be recoverable from collections (including
liquidation proceeds) on the Marriott Desert Springs Parent Loan (provided that
the Master Servicer certifies to its determination not to expend such funds to
the Trustee in an Officer's Certificate of a Servicing Officer), or (iv) with
respect to the Master Servicer, take any action in servicing the Marriott Desert
Springs Parent Loan which would in any way conflict with the best interests of
the Certificateholders (other than the Class M and the Class MX
Certificateholders).
In the event of any conflict between the interests of the Holders of
Certificates other than the Class M and/or the Class MX Certificates and the
interests of the Class M and Class MX Certificateholders, the Master Servicer
shall take such action as it determines is in the best interest of the Holders
of Certificates other than the Class M and Class MX Certificates; provided that
such actions shall not affect in any way the payment priorities provided for
under the Loan Documents relating to the Marriott Desert Springs Parent Loan and
the Marriott Desert Springs Loan.
In the event that the Master Servicer or the Trustee determines, in the
good faith business judgment of the Master Servicer or the Trustee, as the case
may be, that taking certain actions for which the Master Servicer would
otherwise be entitled to reimbursement as provided in clause (iii) in the second
preceding paragraph would require the Master Servicer or the Trustee to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties with respect to the Marriott Desert Springs
Parent Loan, and the Master Servicer or the Trustee, as the case may be, is
unsure that repayment of such funds would be ultimately recoverable from late
payments, liquidation proceeds and other collections on or in respect of the
Marriott Desert Springs Parent Loan, the Master Servicer or Trustee, as the case
may be, shall not be obligated to expend such funds, unless and until it is
directed to do so by 100% of the Holders of the Class M Certificates. Within two
Business Days of making such determination, the Trustee shall notify the Class M
and the Class MX Certificateholders in writing, or the Master Servicer shall
notify the Trustee (who shall copy the Class M and the Class MX
Certificateholders) in writing, of such proposed action specifying the related
costs and expenses and certifying as to the basis for such determination. For
purposes of determining whether Certificateholders representing 100% of the
Percentage Interests in the Class M Certificates have directed the Master
Servicer or the Trustee to incur such expenses, each Class M Certificateholder
shall have 15 days after delivery of such notice to respond to such notice, and
any Class M Certificateholder that has not responded within such time period
shall be deemed not to have consented to such expenditure. If Holders of 100% of
the Percentage Interests in the Class M Certificates shall direct the Master
Servicer or Trustee to expend such funds and take such actions, the Class M
Certificateholders shall be deemed to have agreed to, and shall be required to
indemnify the Master Servicer or the Trustee, as the case may be, with respect
to reasonable out-of-pocket costs and expenses (with interest thereon at the
Advance Rate) incurred by the Master Servicer or the Trustee, as the case may
be, in taking the related actions.
(b) 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 Marriott Desert Springs
Parent Loan and the performance of its duties hereunder.
(c) The Master Servicer shall cause the Marriott Desert Springs Parent
Borrower to maintain, to the extent required by the related Loan Documents, and
if the Marriott Desert Springs Parent Borrower does not so maintain, shall
itself maintain (subject to the provisions of Section 3.28(a) concerning payment
of expenses to the extent the Trustee as lender has an insurable interest and to
the extent available at commercially reasonable rates), such insurance and in
such amounts as is required in the related Loan Documents. Any amounts collected
by the Master Servicer under any such policies shall be deposited into the Class
M Distribution Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating distributions to
Class M and Class MX Certificateholders, be added to the unpaid principal
balance of the Marriott Desert Springs Parent Loan, notwithstanding that the
terms of the Marriott Desert Springs Parent Loan so permit. The Master Servicer
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 3.28(c) 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, on behalf of the Trustee as the lender, as loss payee.
If the Master Servicer utilizes a master force placed insurance policy to
execute its obligations in the preceding paragraph and such policy shall be
issued by a Qualified Insurer and provide no less coverage in scope and amount
for the Marriott Desert Springs Parent Loan than the insurance required to be
maintained pursuant to the second preceding paragraph, then the Master Servicer
shall conclusively be deemed to have satisfied its respective obligations to
maintain insurance pursuant to this Section 3.28(c). Such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
(i) there shall not have been maintained a policy otherwise complying with the
provisions of the preceding paragraph, 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 Class M Distribution 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 contained in the related Loan Documents, or, in the absence of any
such deductible limitation, the deductible limitation which is consistent with
the Servicing Standard.
(d) In the event that title to the Marriott Desert Springs Pledged
Collateral is acquired from the Marriott Desert Springs Parent Borrower for the
benefit of the Class M and the Class MX Certificateholders upon foreclosure or
other exercise of creditor's rights as permitted by applicable law, and the
Marriott Desert Springs Parent Loan is no longer outstanding, the portion of the
Grantor Trust representing the Marriott Desert Springs Parent Loan, the Class M
Collection Account and the Class M Distribution Account, and all amounts
therein, shall be terminated. In event of such termination the Trustee and the
Master Servicer shall take such actions as may be necessary or appropriate to
cause the Marriott Desert Springs Pledged Collateral or any amounts received
upon foreclosure or other permitted sale of such collateral to be transferred,
assigned and conveyed to the Holder or Holders of Class M Certificates. Upon
such transfer, none of the Trustee, the Master Servicer nor the Class MX
Certificateholders shall have any further rights with respect to the Marriott
Desert Springs Parent Loan, the Marriott Desert Springs Pledged Collateral or
any amounts received upon foreclosure or other permitted sale of such
collateral, provided, however, that no such transfer shall be made until and
unless the Trustee has received evidence reasonably satisfactory to it (with a
copy to the Holder or Holders of the Class MX Certificates) that the Holder or
Holders of the Class M Certificates are obligated to distribute net proceeds
(after expenses of sale and after reimbursement to the Class M
Certificateholders of any advances previously made by such Holders with respect
to the Marriott Desert Springs Parent Loan) from the sale of, or from other
amounts received on or with respect to, the Marriott Desert Springs Pledged
Collateral in the following order of priority: first, to the Holders of the
Class M Certificates, an amount equal to the unpaid principal balance of the
Marriott Desert Springs Parent Loan; second, to the Holders of the Class M and
Class MX Certificates, an amount equal to all accrued and unpaid interest on the
Class M and Class MX Certificates from the date to which interest was last paid
on such Certificates to the earlier of the 60th day after such date or the date
(the "Foreclosure Date") on which the Marriott Desert Springs Pledged Collateral
was acquired from the Marriott Desert Springs Parent Borrower upon foreclosure
or other exercise of creditor's rights as permitted by applicable law, allocated
pro rata to such Classes based on their respective amounts of such accrued and
unpaid interest; third, an amount equal to all remaining accrued and unpaid
interest, if any, on the Class M Certificates to the Foreclosure Date; fourth,
an amount equal to all remaining accrued and unpaid interest, if any, on the
Class MX Certificates to the Foreclosure Date; and fifth, to the Class M
Certificates, all remaining funds.
(e) The Master Servicer shall file information returns regarding the
abandonment or foreclosure of Marriott Desert Springs Pledged Collateral with
the IRS at the time and in the manner required by the Code.
(f) During the term of the Marriott Desert Springs Parent Loan, the Master
Servicer, may, consistent with the Servicing Standard, agree to modify the
Marriott Desert Springs Parent Loan to reduce the amount of principal and/or
interest payable monthly on the Marriott Desert Springs Parent Loan, provided
that (a) a material default in respect of payment on the Marriott Desert Springs
Parent Loan has occurred or, in the Master Servicer's reasonable and good faith
judgment, a default in respect of payment on the Marriott Desert Springs Parent
Loan is reasonably foreseeable, and such modification is reasonably likely to
produce a greater recovery on or with respect to the Marriott Desert Springs
Parent Loan, on a net present value basis, than would liquidation; and (b) the
Master Servicer may only agree to reductions of principal lasting a period of no
more than twelve consecutive months and, in the aggregate, to no more than three
reductions of twelve months or less each; provided, however, Class M
Certificateholders representing greater than 66-2/3% of the Percentage Interests
in the Class M Certificates may direct the Master Servicer not to agree to any
modification of the Marriott Desert Springs Parent Loan; provided further,
however, that in the event that any reduction of the MDSPL Interest Rate and/or
in the principal balance of the Marriott Desert Springs Parent Loan results in
the product of (i) the modified Class MX Pass-Through Rate and (ii) the modified
Notional Amount of the Class MX Certificates being less than the product of (1)
1.953958%, or 1.778958% if the Servicing Fee Rate for the Marriott Desert
Springs Parent Loan has increased to 0.399% per annum, and (2) the unmodified
Notional Amount of the Class MX Certificates, the Class MX Certificateholders
will have the option to purchase the Class M Certificates at a price (the "Class
M Option Price") equal to the Certificate Principal Amount thereof, plus accrued
and unpaid interest thereon through the date of such purchase plus all related
unreimbursed Advances made pursuant to this Section with respect to the Marriott
Desert Springs Parent Loan. The Class MX Certificateholder may exercise the
options referred to herein by providing written notice to the Class M
Certificateholders within ten Business Days of receiving notification from the
Trustee of an executed modification. The Master Servicer shall promptly provide
a copy of such proposed modification to the Rating Agencies and the Trustee. The
Trustee shall, within two Business Days, notify, in writing, all of the Class M
and the Class MX Certificateholders of such proposed modification. For purposes
of determining whether Certificateholders representing 66-2/3% of the Percentage
Interests in the Class M Certificates have directed the Master Servicer not to
agree to such modification, each Class M Certificateholder shall have 15 days
after delivery of such notice to respond to such notice, and any Class M
Certificateholder that has not responded within such time period shall be deemed
to have consented to such modification. The Master Servicer shall provide
written notice to the Trustee, and the Trustee shall provide written notice to
the Class M and Class MX Certificateholders, of such final executed
modification.
The Master Servicer shall be permitted to modify, waive or amend any term
of the Marriott Desert Springs Parent Loan although it is not in default or as
to which default is not reasonably foreseeable but only if such modification,
waiver or amendment (a) would not be "significant" as such term is defined in
Code Section 1001, as determined by the Master Servicer (and the Master Servicer
may rely on an Opinion of Counsel in making such determination), (b) would be in
accordance with the Servicing Standard set forth in Section 3.28(a), and (c)
would not adversely affect in any material respect the interest of any Class M
Certificateholder not consenting thereto. The consent thereto of the majority of
Percentage Interests of the Class M Certificates or the 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 Class M 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 Class M
Certificateholder not consenting thereto.
(g) The Master Servicer shall provide copies of any modifications, waivers
or amendments pursuant to this Section 3.28 to each Rating Agency and to the
Seller.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) (i) On each Master Servicer Remittance Date, to the extent of Available
Funds, amounts held in the Collection Account shall be withdrawn by the Master
Servicer and remitted to the Trustee for deposit 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 shall be
distributed on the Lower-Tier Regular Interests to the Upper-Tier REMIC, in
accordance with the provisions set forth herein. Thereafter, such amounts shall
be considered to be held in the Upper-Tier Distribution Account until
distributed to the Certificateholders.
(ii) Principal amounts, rates of interest and timing of distributions on
each Lower-Tier Regular Interest will be identical to such amounts, rates, and
timing on the corresponding Related Certificates, except that, solely for this
purpose, all calculations of interest with respect to the Related Lower-Tier
Regular Interests shall be made as though the Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F and Class G 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 Prepayment Premium 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 Prepayment Premium, so long as any one or
more of the Class XX-0, Xxxxx XX-0, Class LB, Class LC, Class LD, Class LE,
Class LF or Class LG 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.
(b) On each Distribution Date prior to the Cross-over Date, Holders of each
Class of Certificates (other than the Class M, Class MX, 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 in the following order:
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 less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(v) Fifth, to the Class B Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class;
(vi) Sixth, to the Class C Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such
Class;
(vii) Seventh, to the Class C Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to
the Principal Distribution Amount less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(viii) Eighth, to the Class C Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class;
(ix) Ninth, to the Class D Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such
Class;
(x) Tenth, to the Class D Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to
the Principal Distribution Amount less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(xi) Eleventh, to the Class D Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class;
(xii) Twelfth, to the Class E Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount of such
Class;
(xiii) Thirteenth, to the Class E Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to
the Principal Distribution Amount less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(xiv) Fourteenth, to the Class E Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class;
(xv) Fifteenth, to the Class F Certificates, in respect of interest,
up to an amount equal to the Interest Distribution Amount of
such Class;
(xvi) Sixteenth, to the Class F Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to
the Principal Distribution Amount less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(xvii) Seventeenth, to the Class F Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class;
(xviii) Eighteenth, to the Class G Certificates in respect of interest,
up to an amount equal to the Interest Distribution Amount of
such Class;
(xix) Nineteenth, to the Class G Certificates, in reduction of the
Certificate Principal Amount thereof, up to an amount equal to
the Principal Distribution Amount less the portion of the
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Principal Amount thereof is
reduced to zero;
(xx) Twentieth, to the Class G Certificates, an amount equal to the
aggregate of unreimbursed Realized Losses previously allocated
to such Class, plus interest thereon at the Pass-Through Rate
for such Class compounded monthly from the date the related
Realized Loss was allocated to such Class; and
(xxi) Twenty-first, to the Class LR Certificates, any amounts
remaining in the Lower-Tier Distribution Account, and to the
Class R Certificates, any amounts remaining in the Upper-Tier
Distribution Account.
On each Distribution Date occurring on and after the Cross-over Date, in
place of the allocation of principal payments described in priority Second
above, remaining Available Funds at such level will be distributed first up to
an amount equal to the Principal Distribution Amount for such Distribution
Amount to the Class A-1 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-first above.
All references to "pro rata" in the preceding clauses with respect to
interest and Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distributions of
principal other than in reimbursement of Realized Losses shall mean pro rata
based on Certificate Principal Amount, and with respect to distributions in
reimbursement of Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) On any Distribution Date, any Prepayment Premiums collected during the
related Collection 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, Class E, Class F and Class G 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 Prepayment Premiums collected on such Principal
Prepayment during the Collection Period. Any Prepayment Premiums collected
during such Collection Period remaining after such distributions will be
distributed to the holders of the Class X Certificates.
(d) On each Distribution Date the Trustee shall withdraw the amount of any
Net Default Interest received in the related Collection Period from the Class Q
Distribution Account 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 other than the Marriott Desert Springs Loan 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, on their initial Certificate Principal Amounts,
and any Excess Interest received with respect to the Marriott Desert Springs
Loan during the related Collection Period shall be distributed to the holders of
the 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) On each Distribution Date the Trustee shall withdraw from the Class M
Distribution Account (to the extent funds are available therefor) an amount
equal to (i) the Interest Distribution Amount with respect to the Class M and
Class MX Certificates and (ii) any amounts allocable to interest received in
excess of the MDSPL Interest Rate as a result of a default on the Marriott
Desert Springs Parent Loan, and shall distribute such funds to the holders of
the Class M and the Class MX Certificates, pro rata based on the ratio of their
respective Pass-Through Rates to the sum of such Pass-Through Rates. On each
Distribution Date, after the distributions in the preceding sentence, the
Trustee shall distribute to the Class M Certificateholders any amounts remaining
on deposit in the Class M Distribution Account allocable to principal and all
other amounts then remaining in the Class M Distribution Account (including any
prepayment premiums or yield maintenance charges received by the Master Servicer
with respect to the Marriott Desert Springs Parent Loan during the related
Collection Period) (to the extent not otherwise permitted to be retained by the
Master Servicer pursuant to the terms hereof). The Certificate Principal Amount
of the Class M Certificates will be reduced by amounts actually distributed
thereon that are attributable to principal and by any Realized Losses with
respect to the Marriott Desert Springs Parent Loan. Notwithstanding the
foregoing, if the Underwriter has not delivered the Addendum setting forth the
Class M Pass-Through Rate by the first Distribution Date, the Trustee shall
withdraw from the Class M Distribution Account on such Distribution Date all
funds in such account, net of the Servicing Fee, and distribute such funds to
the Underwriter as the Holder of the Class M and Class MX Certificates.
(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 G
Certificates; second, to the Class F Certificates, third, to the Class E
Certificates; fourth, to the Class D Certificates; fifth; to the Class C
Certificates; sixth, 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 servicing
compensation other than the Servicing Fee, interest on Advances not covered by
Default Interest, Additional Trust Fund Expenses, a reduction of the interest
rate of a Mortgage Loan by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or other unanticipated
or default-related expenses (not constituting Realized Losses) will be allocated
to interest due on each Class of Certificates in the same order as Realized
Losses are applied to the Certificate Principal Amounts thereof. Excess
Prepayment Interest Shortfalls will be allocated to each Class of Certificates,
pro rata, based upon the amount of interest which would have otherwise been
distributed to each Class of Certificates. The Notional Amount of the Class X
Certificates will be reduced to reflect reductions in the Certificate Principal
Amount of the Class A-1, Class A-2, Class B and Class C Certificates resulting
from allocations of Realized Losses.
(h) All amounts distributable, or reductions allocable on account of
Realized Losses, to a Class of Certificates pursuant to this Section 4.01 on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in each such Class based on their respective Percentage Interests.
Such distributions shall be made on each Distribution Date other than the
Termination Date to each Certificateholder of record on the related Record Date
(a) by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity located in the United States and
having appropriate facilities therefor, if such Certificateholder provides the
Trustee with wiring instructions no less than five Business Days prior to the
related Record Date, or otherwise (b) by check mailed to such Certificateholder.
The final distribution on each Certificate shall be made in like manner, but
only upon presentment and surrender of such Certificate at the office of the
Trustee or its agent (which may be the Paying Agent or the Certificate Registrar
acting as such agent) that is specified in the notice to Certificateholders of
such final distribution.
(i) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information previously
provided to it that the final distribution with respect to such
Class of Certificates will be made on such Distribution Date,
but only upon presentation and surrender of such Certificates at
the office of the Trustee therein specified, and
(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificate, or on the Related
Lower-Tier Regular Interests from and after such Distribution
Date;
provided, however, that the Class Q, Class R and Class LR Certificates shall
remain outstanding until there is no other Class of Certificates (other than the
Class M and Class MX 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 G, Class F, Class E,
Class D, Class C and Class B Certificates will be notionally reduced (solely for
purposes of determining the Voting Rights of the related Classes) on any
Distribution Date to the extent of any Appraisal Reduction Amounts allocated to
such Classes on such Distribution Date. To the extent that the aggregate of the
Appraisal Reduction Amounts for any Distribution Date exceeds such Certificate
Principal Amount, such excess will be applied, subject to any reversal described
below, to notionally reduce the Certificate Principal Amounts of the next most
subordinate Class of Certificates on the next Distribution Date. Any such
reductions will be applied in the following order of priority: first, to the
Class G Certificates; second, to the Class F Certificates; third, to the Class E
Certificates; fourth, to the Class D Certificates; fifth, to the Class C
Certificates; and finally, to the Class B Certificates (provided in each case
that no Certificate Principal Amount in respect of any such Class may be
notionally reduced below zero).
SECTION 4.02. Statements to Certificateholders; Available Information;
Information Furnished to Financial Market Publisher.
(a) On each Distribution Date, the Trustee shall, based on information
provided by the Master Servicer or provided by the Special Servicer to the
Master Servicer (with respect to a Specially Serviced Mortgage Loan, an REO
Property or the servicing responsibilities of the Special Servicer set forth
herein including the Special Servicer's obligation to make Advances) and subject
to receipt thereof, prepare and forward by mail to each Holder of a Certificate,
with copies to the Seller, the Paying Agent, the Master Servicer, the Special
Servicer, the Rating Agencies and up to three market reporting services
designated by the Seller, a statement as to such distribution (a "Monthly
Distribution Statement") setting forth the information set forth on Exhibit J
hereto, and including among other things, for each Class, as applicable:
(i) the Principal Distribution Amount 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 Collection Period, the amount of the P&I Advance made
with respect to such Distribution Date, the aggregate amount of
Property Advances theretofore made that remain unreimbursed and
the aggregate amount of P&I Advances theretofore made that
remain unreimbursed;
(viii) With respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance and
appraised value (based on an Updated Appraisal, if required
under Section 3.10(a)) of such Mortgage Loan as of the date it
became an REO Mortgage Loan;
(ix) (A) For any REO Property sold during the related Collection
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
Collection Period and credited to the Collection Account, in
each case identifying such REO Property by name and (C) the
appraised value as determined by the most recent Updated
Appraisal (or annual letter update thereof) of any REO Property,
if required under Section 3.10(a);
(x) The amount of the Servicing Fee, Trustee Fee and Special
Servicing Compensation paid with respect to such Distribution
Date;
(xi) (A) The amount of Prepayment Premiums, if any, received during
the related Collection Period, (B) the amount of Default
Interest received during the related Collection Period and the
Net Default Interest for such Distribution Date and (C) the
amount of Excess Interest, if any, received during the related
Collection Period;
(xii) The outstanding principal balance and Repurchase Price of any
Mortgage Loan purchased or repurchased pursuant to Sections
2.03(c), 3.18 or 9.01(c);
(xiii) The amount of 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) A reference to any Special Event Report furnished to the Trustee
during the preceding calendar month, including without
limitation, any such report relating to anchor tenants;
(xix) Account reconciliations with respect to the immediately
preceding Distribution Date with respect to the Collection
Account and Class M Collection Account (giving effect to P&I
Advances, Property Advances, Servicing Fees, Trustee Fees,
additional servicing compensation, Prepayment Premiums, Default
Interest, Net Default Interest, and Excess Interest); and
(xx) other information reasonably requested by the Seller.
Notwithstanding the foregoing, the Trustee shall only be required to
provide the above-referenced information to the Class M and the Class MX
Certificateholders to the extent such information or similar information relates
to the Class M or the Class MX Certificates, the Marriott Desert Springs Parent
Loan, or the Mortgaged Property related to the Marriott Desert Springs Parent
Loan.
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.
(b) On or within two Business Days following each Distribution Date, the
Trustee shall make available to the Financial Market Publisher and the
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher and the Underwriter, the following information
regarding each Mortgage Loan and any other information reasonably requested by
the Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
In addition, on or within two Business Days following each Distribution
Date, the Trustee shall make (x) certain information contained in the Monthly
Distribution Statement available to Certificateholders through its ASAP System
by Certificateholders dialing telephone number (000) 000-0000 and requesting
statement No. 334, (y) certain information regarding the Mortgage Loans
available in electronic format through its dial-up bulletin board service, by
Certificateholders dialing telephone number (000) 000-0000, and (z) certain
information regarding the Mortgage Loans accessible at the Trustee's web site at
"xxx.xxxxxx.xxx".
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.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Certificateholder that is a non-U.S.
Person that has furnished or caused to be furnished (i) an effective Form W-8 or
Form W-9 or an acceptable substitute form or a successor form and who is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to the Trust Fund or the Seller, or (ii) an effective Form 4224 or an
acceptable substitute form or a successor form. In the event the Paying Agent or
its agent withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.05(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Seller agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Master Servicer or the Trustee and
necessary to make such filing); and (vi) maintain such records relating to each
of the Upper-Tier REMIC and the Lower-Tier REMIC as may be necessary to prepare
the foregoing returns, schedules, statements or information, such records, for
federal income tax purposes, to be maintained on a calendar year and on an
accrual basis. The Holder of the largest Percentage Interest in the Class R or
Class LR Certificates shall be the tax matters person of the Upper-Tier REMIC or
the Lower-Tier REMIC, respectively, pursuant to Treasury Regulations Section
1.860F-4(d). If more than one Holder should hold an equal Percentage Interest in
the Class R or Class LR Certificates larger than that held by any other Holder,
the first such Holder to have acquired such Class R or Class LR Certificates
shall be such tax matters person. The Trustee shall act as attorney-in-fact and
agent for the tax matters person of each of the Upper-Tier REMIC and Lower-Tier
REMIC, and each Holder of a Percentage Interest in the Class R or Class LR
Certificates, by acceptance hereof, is deemed to have consented to the Trustee's
appointment in such capacity and agrees to execute any documents required to
give effect thereto, and any fees and expenses incurred by the Trustee in
connection with any audit or administrative or judicial proceeding shall be paid
by the Trust Fund. The Trustee shall not intentionally take any action or
intentionally omit to take any action if, in taking or omitting to take such
action, the Trustee knows that such action or omission (as the case may be)
would cause the termination of the REMIC status of the Upper-Tier REMIC or the
Lower-Tier REMIC or the imposition of tax on the Upper-Tier REMIC or the
Lower-Tier REMIC (other than a tax on income expressly permitted or contemplated
to be received by the terms of this Agreement). Notwithstanding any provision of
this paragraph to the contrary, the Trustee shall not be required to take any
action that the Trustee in good faith believes to be inconsistent with any other
provision of this Agreement, nor shall the Trustee be deemed in violation of
this paragraph if it takes any action expressly required or authorized by any
other provision of this Agreement, and the Trustee shall have no responsibility
or liability with respect to any act or omission of the Seller or the Master
Servicer which does not enable the Trustee to comply with any of clauses (i)
through (vi) of the fifth preceding sentence or which results in any action
contemplated by clauses (i) through (iii) of the next succeeding sentence. In
this regard the Trustee shall (i) exercise reasonable care not to allow the
occurrence of any "prohibited transactions" within the meaning of Code Section
860F(a), unless the party seeking such action shall have delivered to the
Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (a) result in a taxable gain, (b) otherwise subject the Upper-Tier
REMIC or Lower-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (c) cause any of
the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow any of the Trust REMICs to receive income
from the performance of services or from assets not permitted under the REMIC
Provisions to be held by a REMIC (provided, however, that the receipt of any
income expressly permitted or contemplated by the terms of this Agreement shall
not be deemed to violate this clause) and (iii) not permit the creation of any
"interests," within the meaning of the REMIC Provisions, in the Upper-Tier REMIC
other than the Regular Certificates and the Class R Certificates or in the
Lower-Tier REMIC other than the Lower-Tier Regular Interests and the Class LR
Certificates. None of the Master Servicer, the Special Servicer or the Seller
shall be responsible or liable for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Seller, the Master Servicer and the Special
Servicer shall cooperate in a timely manner with the Trustee in supplying any
information within the Seller's, the Master Servicer's or the Special Servicer's
control (other than any confidential information) that is reasonably necessary
to enable the Trustee to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans in the aggregate will prepay
in accordance with the Prepayment Assumption; (ii) none of the Master Servicer,
the Seller and the Class LR Certificateholders will exercise the right described
in Section 9.01 of this Agreement to cause early termination of the Trust Fund;
and (iii) no Mortgage Loan is repurchased by the applicable Responsible Party or
the Seller pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from the Collection Account in determining
the amount of Available Funds sufficient funds to pay or provide for the payment
of, and to actually pay, such tax as is legally owed by the Upper-Tier REMIC or
Lower-Tier REMIC (but such authorization shall not prevent the Trustee from
contesting, at the expense of the Trust Fund, any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Trustee is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income from any "prohibited transaction" under Code Section
860F(a) or (ii) the amount of any contribution to the Upper-Tier REMIC or
Lower-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such tax
(and return the balance thereof, if any, to the Lower-Tier Distribution Account
or the Upper-Tier Distribution Account, as the case may be). To the extent that
any such tax is paid to the Internal Revenue Service, the Trustee shall retain
an equal amount from future amounts otherwise distributable to the Holders of
the Class R or the Class LR Certificates, as the case may be, and shall
distribute such retained amounts to the Holders of Regular Certificates or to
the Trustee in respect of the Lower-Tier Regular Interests, as applicable, until
they are fully reimbursed and then to the Holders of the Class R Certificates or
the Class LR Certificates, as applicable. Neither the Master Servicer, the
Special Servicer nor the Trustee shall be responsible for any taxes imposed on
the Upper-Tier REMIC or Lower-Tier REMIC except to the extent such tax is
attributable to a breach of a representation or warranty of the Master Servicer,
the Special Servicer or the Trustee or an act or omission of the Master
Servicer, the Special Servicer or the Trustee in contravention of this Agreement
in both cases, provided, further, that such breach, act or omission could result
in liability under Section 6.03, in the case of the Master Servicer or Special
Servicer, as applicable, or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Master Servicer or the Special Servicer shall not be responsible for
Trustee's breaches, acts or omissions, and the Trustee shall not be responsible
for the breaches, acts or omissions of the Master Servicer or the Special
Servicer.
SECTION 4.06.Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (a) if such Mortgage Loan has been extended (other than
pursuant to Section 3.27) in accordance with the terms and conditions otherwise
set forth in this Agreement, the lesser of (1) the Extended Monthly Payment and
(2) 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 Prepayment Premiums received by
the Master Servicer in the Collection 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)); provided, however, that in the event
that the Master Servicer is acting as the Special Servicer
hereunder with respect to the One Commerce Square Loan, and the
Master Servicer acquires any Affiliate Loan related to such
Mortgage Loan, and subsequently forecloses on the collateral for
any such Affiliate Loan, any P&I Advance to be made thereafter
on the One Commerce Square Loan by the Master Servicer must be
approved by the Trustee, exercising its good faith
determination, as being a P&I Advance that is not a
Nonrecoverable Advance prior to the Master Servicer making such
P&I Advance. The Master Servicer shall, on or before 9:00 A.M.
(New York City time) on the related Master Servicer Remittance
Date, provide notice to the Trustee of any such proposed P&I
Advance on the One Commerce Square Loan, and the Trustee shall,
by 10:00 A.M. (New York City time) on such Master Servicer
Remittance Date, provide the Master Servicer with its written
approval or nonapproval of such P&I Advance. In the event the
Trustee has not provided written approval with respect to such
P&I Advance by 10:00 A.M. (New York City time) on such Master
Servicer Remittance Date, the P&I Advance will be deemed to be a
Nonrecoverable Advance and the Master Servicer shall have no
obligation to make such P&I Advance.
(c) The Master Servicer shall not be required or permitted to make an
advance for Excess Interest, Default Interest or Prepayment Premiums. 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.
(d) Any amount advanced by the Master Servicer pursuant to Section
4.06(b)(iii) shall constitute a P&I Advance for all purposes of this Agreement
and the Master Servicer shall be entitled to reimbursement (with interest at the
Advance Rate) thereof to the full extent as otherwise set forth in this
Agreement.
(e) 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.
(f) 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 or Extended Monthly
Payment on any date on which a P&I Advance is otherwise required to be made by
this Section 4.06 if the Master Servicer, the Trustee or Fiscal Agent, as
applicable, determines that such advance will be a Nonrecoverable Advance. The
Master Servicer shall be required to provide notice to the Trustee and the
Fiscal Agent on or prior to the Master Servicer Remittance Date of any such
non-recoverability determination made on or prior to such date. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Master Servicer that a P&I Advance, if made, would be a Nonrecoverable
Advance; provided, however, that if the Master Servicer has failed to make a P&I
Advance for reasons other than a determination by the Master Servicer that such
Advance would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as
applicable, shall make such advance within the time periods required by Section
4.06(e) unless the Trustee or the Fiscal Agent, in good faith, makes a
determination prior to the times specified in Section 4.06(e) that such advance
would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not an Advance previously made is, or a proposed Advance,
if made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Master Servicer hereunder.
(g) The Master Servicer, the Trustee or the Fiscal Agent, as applicable,
shall be entitled to the reimbursement of P&I Advances it makes to the extent
permitted pursuant to Section 3.06(ii) of this Agreement together with any
related Advance Interest Amount in respect of such P&I Advances to the extent
permitted pursuant to Section 3.06(iii) 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 Marriott Desert Springs Parent Loan, proceeds therefrom,
the Class M Collection Account and the Class M Distribution Account shall
constitute, and that the affairs of the Trust Fund (exclusive of the Trust
REMICs) shall be conducted so as to qualify such portion as, a "grantor trust"
under the Code, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall furnish or
cause to be furnished to Certificateholders and shall file or cause to be filed
with the Internal Revenue Service together with Form 1041 or such other form as
may be applicable, (i) to the Holders of the Class Q Certificates, income with
respect to their allocable share of Default Interest and the amount of any
interest paid on unreimbursed Advances to the Master Servicer, the Trustee and
the Fiscal Agent, as applicable, therefrom pursuant to Section 3.06(iii) at the
time or times and in the manner required by the Code, (ii) to the Holders of the
Classes of Regular Certificates entitled thereto as set forth in Section
2.06(b), income with respect to their allocable share of Excess Interest at the
time or times and in the manner required by the Code, and (iii) to the Holders
of the Class M and Class MX Certificates, income with respect to their allocable
shares of the interest portion of any payments received on or with respect to
the Marriott Desert Springs Parent Loan and their allocable shares of any other
income with respect to the Marriott Desert Springs Parent Loan, and their
allocable shares of the Servicing Fee, the Trustee Fee or other expenses
incurred by the Trust Fund with respect to the Marriott Desert Springs Parent
Loan, such allocable shares to be based on the ratio of their respective
Pass-Through Rates to the MDSPL Interest Rate, at the time or times and in the
manner required by the Code.
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 M Certificates, the Class MX
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 M, Class MX, 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 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 M and Class MX 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 and Class G
Certificates (the "Rule 144A Global Certificates") in definitive, fully
registered form without interest coupons, (ii) Regulation S global Class F and
Class G Certificates (the "Regulation S Global Certificates") in definitive,
fully registered form without interest coupons, or (iii) individual Class M and
Class MX Certificates in definitive, fully registered form without interest
coupons, or (iv) one or more, if any, Individual Certificates, in each case
substantially in the form of Exhibits X-0, X-0, X-00 and 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
Minimum Amount or Notional
Class Denomination Amount)
----- ------------ -------
A-1 $ 10,000.00 $278,000,000
A-2 $ 10,000.00 $694,315,000
B $ 10,000.00 $91,595,000
C $ 10,000.00 $84,549,000
D $ 10,000.00 $98,641,000
E $ 10,000.00 $70,458,000
F $ 250,000.00 $63,411,000
G $ 250,000.00 $28,183,997
M $ 100,000.00 $19,663,552
MX $ 100,000.00 $19,663,552
X $1,000,000.00 $1,148,459,000
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 M, Class MX, 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 Q, Class M, Class MX, 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 (except with respect to the
transfer of the Class M or Class MX Certificates by the
Underwriter to its initial purchaser) (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 Q, Class M, Class MX, 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 Q, Class M, Class MX, 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 Q, Class M, Class MX, 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 Xxxxx
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.
(m) The Class M Certificates shall not be held by more than one Person and
shall only be held by a Permitted Class M Transferee, unless each Rating Agency
confirms in writing that the fact that more than one Person holds the Class M
Certificates will not result in a downgrade, qualification or withdrawal of the
then current rating or ratings then assigned to any outstanding Class of
Certificates. The Underwriter agrees, by receiving and holding its Class M and
Class MX Certificates, that it (i) may not transfer or sell the Class M or Class
MX Certificates until such time as it has delivered the Addendum to the Trustee
and (ii) shall deliver the Addendum to the Trustee within 30 days of the Closing
Date. Each Holder of a Class M Certificate agrees, by receiving and holding its
Class M Certificate, that such Certificate may be purchased by the Class MX
Certificateholders, under the circumstances set forth in Section 3.28(f), at the
Class M Option Price.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Master Servicer harmless, then, in the absence
of actual knowledge by a Responsible Officer of the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Master Servicer, to
execute and deliver to the Master Servicer and the Trustee an instrument in
which such Paying Agent shall agree with the Master Servicer and the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums have been paid to the Certificateholders or disposed of
as otherwise provided herein. The initial Paying Agent shall be the Trustee.
Except for LaSalle National Bank, as the initial Paying Agent, the Paying Agent
shall at all times be an entity having a long-term unsecured debt rating of at
least "A" by Fitch and "Aa2" by Xxxxx'x, or shall be otherwise acceptable to
each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Seller or the Master
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Seller and the Master Servicer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Seller or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
SECTION 5.07. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Seller and must be a corporation organized and doing business under the laws of
the United States of America or any state, having a principal office and place
of business in a state and city acceptable to the Seller, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee and the Seller. The Trustee
may at any time terminate the agency of the Authenticating Agent by giving
written notice of termination to the Authenticating Agent and the Seller. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Seller, and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 5.07.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any compensation
paid to the Authenticating Agent shall be an unreimbursable expense of the
Trustee.
SECTION 5.08. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch and "Baa2" from Xxxxx'x, unless the
Trustee shall have received prior written confirmation from each Rating Agency
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.
Subject to the following paragraph, the Master 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 or the Marriott Desert Springs Parent Loan and to perform its
respective duties under this Agreement.
The Master 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 hereunder, and shall be deemed to have assumed all of the
liabilities of the Master Servicer hereunder, if each of the Rating Agencies has
confirmed in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then current ratings assigned by such Rating Agency to any
Class of Certificates.
SECTION 6.03. Limitation on Liability of the Seller, the Master Servicer
and Others.
Subject to Section 6.01, neither the Seller, the Master Servicer, the
Special Servicer nor any of the directors, officers, employees or agents of the
Seller or the Master Servicer or the Special Servicer shall be under any
liability to the Trust Fund or the Certificateholders for any action taken, or
for refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Seller or the Master Servicer or the Special Servicer or
any such Person against liability which would be imposed by reason of (i) any
breach of warranty or representation, or other specific liability provided
herein, with respect to such respective party or (ii) any willful misconduct,
bad faith, fraud or negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder with respect to such
respective party. The Seller, the Master Servicer, the Special Servicer and any
director, officer, employee or agent of the Seller, the Master Servicer or the
Special Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any appropriate Person respecting
any matters arising hereunder. The Seller, the Master Servicer, the Special
Servicer and any director, officer, employee or agent of the Seller or the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with, or relating to, this Agreement or the Certificates, other than any loss,
liability or expense (including legal fees and expenses) (i) incurred by reason
of willful misconduct, bad faith, fraud or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations or duties
hereunder, in each case by the Person being indemnified; (ii) imposed by any
taxing authority if such loss, liability or expense is not specifically
reimbursable pursuant to the terms of this Agreement or (iii) with respect to
any such party, resulting from the breach by such party of any of its
representations or warranties contained herein. Neither the Seller nor the
Master Servicer nor the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and in its opinion does not expose it to
any expense or liability; provided, however, that the Seller or the Master
Servicer or the Special Servicer may in its discretion undertake any such action
related to its obligations hereunder which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Seller, the Master
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
from the Collection Account as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Master Servicer or Special
Servicer .
(a) Each of the Master Servicer and each Special Servicer may assign its
respective rights and delegate its respective duties and obligations under this
Agreement, provided that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be satisfactory to the Trustee and to the
Seller, (b) shall be an established mortgage finance institution, bank or
mortgage servicing institution, organized and doing business under the laws of
any state of the United States or the District of Columbia, authorized under
such laws to perform the duties of a servicer of mortgage loans or a Person
resulting from a merger, consolidation or succession that is permitted under
Section 6.02, and (c) shall execute and deliver to the Trustee an agreement, in
form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
or the Special Servicer, as the case may be, under this Agreement from and after
the date of such agreement; (ii) as confirmed by a letter from each Rating
Agency delivered to the Trustee, each Rating Agency's rating or ratings of the
Regular Certificates and the Class M 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; and (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. 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 Realized Losses.
SECTION 6.05. Rights of the Seller and the Trustee in Respect of the Master
Servicer and Special Servicer.
The Master Servicer and the Special Servicer shall afford the Seller, the
Trustee and the Rating Agencies, upon reasonable notice, during normal business
hours access to all records maintained by it in respect of its rights and
obligations hereunder and access to its officers responsible for such
obligations. Upon request, the Master Servicer and the Special Servicer shall
furnish to the Seller, the Master Servicer, the Special Servicer and the Trustee
its most recent publicly available annual financial statements and such other
information in its possession regarding its business, affairs, property and
condition, financial or otherwise as is reasonably relevant to the performance
of the obligations hereunder of the Master Servicer and the Special Servicer.
The Seller may, but is not obligated to, enforce the obligations of the Master
Servicer or the Special Servicer hereunder which are in default and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of such Person hereunder or exercise its rights hereunder, provided
that the Master Servicer and the Special Servicer shall not be relieved of any
of its obligations hereunder by virtue of such performance by the Seller or its
designee. In the event the Seller or its designee undertakes any such action it
will be reimbursed by the Trust Fund from the Collection Account as provided in
Section 3.06 and Section 6.03(a) hereof to the extent not recoverable from the
Master Servicer or Special Servicer, as applicable. Neither the Seller nor the
Trustee and neither the Master Servicer, with respect to the Special Servicer,
nor the Special Servicer, with respect to the Master Servicer, shall have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and neither such Person is obligated to monitor
or supervise the performance of the Master Servicer or the Special Servicer
under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
SECTION 6.06. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder (or with
respect to a Global Certificate, Beneficial Owner) of any Certificate with the
same rights it would have if it were not the Master Servicer or the Special
Servicer or an Affiliate thereof, except as otherwise expressly provided herein.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder or
Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that (i) is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's good faith judgment, violate the
Servicing Standard, and (ii) if taken, might nonetheless, in the Master
Servicer's or the Special Servicer's good faith judgment, be considered by other
Persons to violate the Servicing Standard, the Master Servicer or the Special
Servicer may seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (i) states that it is delivered
pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and
(iii) describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate)
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have consented in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice, such action shall
be deemed to comply with the Servicing Standard. The Trustee shall be entitled
to reimbursement from the Master Servicer or the Special Servicer, as
applicable, of the reasonable expenses of the Trustee incurred pursuant to this
paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, except in
the case of unusual circumstances.
Notwithstanding the foregoing, neither the Master Servicer or the Special
Servicer may become a Holder or Beneficial Owner of any Class M or Class MX
Certificate.
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,
Upper-Tier Distribution Account, Excess Interest Distribution
Account, Interest Reserve Account, Class Q Distribution Account
or the Class M 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 is not remedied by 11:00 a.m., New York
City time, on the related Distribution Date; 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) confirmation in writing by any Rating Agency that not
terminating the Master Servicer would, in and of itself, cause
the then-current rating assigned to any Class of Certificates to
be qualified, withdrawn, or downgraded; or
(iv) 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
(v) 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
(vi) 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
(vii) 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;
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 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 by the Holders of Certificates evidencing Percentage
Interests of at least 25% of any Class affected thereby; or
(iii) confirmation in writing by any Rating Agency that failure to
remove the Special Servicer would, in and of itself, cause a
downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates; or
(iv) 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
(v) 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
(vi) 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;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee shall, by notice in
writing to the Master Servicer or the Special Servicer, as the case may be (the
"Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights the Master Servicer or Special Servicer may have hereunder as a
Certificateholder and any rights or obligations that accrued prior to the date
of such termination (including the right to receive all amounts accrued or owing
to it under this Agreement, plus interest at the Advance Rate on such amounts
until received to the extent such amounts bear interest as provided in this
Agreement, with respect to periods prior to the date of such termination and the
right to the benefits of Section 6.03 notwithstanding any such termination). On
or after the receipt by the Terminated Party of such written notice, all of its
authority and power under this Agreement, whether with respect to the
Certificates (except that the Terminated Party shall retain its rights as a
Certificateholder in the event and to the extent that it is a Certificateholder)
or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Terminated Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agrees that, in the event it is terminated pursuant to
this Section 7.01, to promptly (and in any event no later than ten Business Days
subsequent to such notice) provide, at its own expense, the Trustee with all
documents and records requested by the Trustee to enable the Trustee to assume
its functions hereunder, and to cooperate with the Trustee and the successor to
its responsibilities hereunder in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Master Servicer or successor Special Servicer or the
Trustee, as applicable, for administration by it of all cash amounts which shall
at the time be or should have been credited by the Master Servicer or the
Special Servicer to the Collection Account, any REO Account or Lock-Box Account
shall thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Trustee or such successor Master Servicer or Special
Servicer (which may include the Trustee), as applicable, all documents and
records reasonably requested by it, such documents and records to be provided in
such form as the Trustee or such successor Master Servicer or Special Servicer
shall reasonably request (including electromagnetic form), to enable it to
assume the Master Servicer's or Special Servicer's function hereunder. All
reasonable costs and expenses of the Trustee or the successor Master Servicer or
successor Special Servicer incurred in connection with transferring the Mortgage
Files to the successor Master Servicer or Special Servicer and amending this
Agreement to reflect such succession as successor Master Servicer or successor
Special Servicer pursuant to this Section 7.01 shall be paid by the predecessor
Master Servicer or the Special Servicer, as applicable, upon presentation of
reasonable documentation of such costs and expenses. If the predecessor Master
Servicer or Special Servicer (as the case may be) has not reimbursed the Trustee
or the successor Master Servicer or Special Servicer for such expenses within 90
days after the presentation of reasonable documentation, such expense shall be
reimbursed by the Trust Fund; provided that the Terminated Party shall not
thereby be relieved of its liability for such expenses.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer receives
a notice of termination pursuant to Section 7.01, the Trustee shall be its
successor in all respects in its capacity as Master Servicer or Special Servicer
under this Agreement and the transactions set forth or provided for herein and,
except as provided herein, shall be subject to all the responsibilities, duties,
limitations on liability and liabilities relating thereto and arising thereafter
placed on the Master Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that (i) the Trustee shall have no responsibilities,
duties, liabilities or obligations with respect to any act or omission of the
Master Servicer or Special Servicer and (ii) any failure to perform, or delay in
performing, such duties or responsibilities caused by the Terminated Party's
failure to provide, or delay in providing, records, tapes, disks, information or
monies shall not be considered a default by such successor hereunder. The
Trustee, as successor Master Servicer or successor Special Servicer, shall be
indemnified to the full extent provided the Master Servicer or Special Servicer,
as applicable, under this Agreement prior to the Master Servicer's or the
Special Servicer's termination. The appointment of a successor Master Servicer
or successor Special Servicer shall not affect any liability of the predecessor
Master Servicer or Special Servicer which may have arisen prior to its
termination as Master Servicer or Special Servicer. The Trustee shall not be
liable for any of the representations and warranties of the Master Servicer or
Special Servicer herein or in any related document or agreement, for any acts or
omissions of the predecessor Master Servicer or predecessor Special Servicer or
for any losses incurred in respect of any Permitted Investment by the Master
Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee as
successor Master Servicer or successor Special Servicer shall be entitled to the
Servicing Fee or Special Servicing Compensation, as applicable, and all funds
relating to the Mortgage Loans that accrue after the date of the Trustee's
succession to which the Master Servicer or Special Servicer would have been
entitled if the Master Servicer or Special Servicer, as applicable, had
continued to act hereunder. In the event any Advances made by the Master
Servicer, the Special Servicer and the Trustee or the Fiscal Agent shall at any
time be outstanding, or any amounts of interest thereon shall be accrued and
unpaid, all amounts available to repay Advances and interest hereunder shall be
applied entirely to the Advances made by the Trustee or the Fiscal Agent (and
the accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act, or if the
Holders of Certificates entitled to at least 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if neither the Trustee nor the Fiscal
Agent is rated by each Rating Agency in one of its two highest long-term debt
rating categories 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).
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal,
(ii) and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation to institute,
conduct or defend any litigation hereunder or in relation hereto
at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or
thereby; (B) the right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the
performance of any such act; and (C) provided, that subject to
the foregoing clause (A), nothing contained herein shall relieve
the Trustee of the obligations, upon the occurrence of an Event
of Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has actual knowledge, to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the
meaning of the Act shall be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by the Trustee to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates
entitled to at least 25% (or such other percentage as is
specified herein) of the Percentage Interests of any affected
Class; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such
investigation shall be paid by the Master Servicer or the
Special Servicer, as applicable, if an Event of Default shall
have occurred and be continuing relating to the Master Servicer,
or the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys but shall not be relieved of its obligations
hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause any of the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
any of the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Seller pursuant to this Agreement or the eligibility of any Mortgage Loan
for purposes of this Agreement.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent, the Master Servicer, or the
Special Servicer, and the Trustee, the Fiscal Agent, the Master Servicer and
Special Servicer assume no responsibility for their correctness. The Trustee,
the Fiscal Agent, the Master Servicer and Special Servicer make no
representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan or
related document. Neither the Trustee nor the Fiscal Agent shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage, any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Fiscal Agent shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; the existence of any Mortgage Loan or the
contents of the related Mortgage File on any computer or other record thereof
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02); the validity of the assignment of
any Mortgage Loan to the Trust Fund or of any intervening assignment; the
completeness of any Mortgage File (except for its review thereof pursuant to
Section 2.02); the performance or enforcement of any Mortgage Loan (other than
if the Trustee shall assume the duties of the Master Servicer or the Special
Servicer pursuant to Section 7.02); the compliance by the Seller, the Master
Servicer or the Special Servicer with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee's receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or any loss resulting therefrom
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02), it being understood that the Trustee
shall remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Seller, the Master
Servicer or the Special Servicer (other than if the Trustee shall assume the
duties of the Master Servicer or Special Servicer pursuant to Section 7.02) or
any sub-Master Servicer or any Borrower; any action of the Master Servicer or
Special Servicer (other than if the Trustee shall assume the duties of the
Master Servicer or the Special Servicer pursuant to Section 7.02) or any
sub-Master Servicer taken in the name of the Trustee, except to the extent such
action is taken at the express written direction of the Trustee; the failure of
the Master Servicer or the Special Servicer or any sub-Master Servicer to act or
perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Master Servicer or the Special Servicer (other than if the Trustee shall
assume the duties of the Master Servicer or the Special Servicer pursuant to
Section 7.02) unless the taking of such action is not permitted by the express
terms of this Agreement; provided, however, that the foregoing shall not relieve
the Trustee of its obligation to perform its duties as specifically set forth in
this Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable
for the use or application by the Seller, the Master Servicer or the Special
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Seller, the Master Servicer
or the Special Servicer in respect of the assignment of the Mortgage Loans or
deposited in or withdrawn from the Collection Account, Lower-Tier Distribution
Account, Upper-Tier Distribution Account, Class Q Distribution Account, Excess
Interest Distribution Account, Class M Collection Account, Class M 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; provided, however, that the Trustee may not be a Holder or
Beneficial Owner of the Class M or the Class MX Certificates.
SECTION 8.05. Payment of Trustee Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses" as described in clause (d) below, except any such
expense, disbursement or advance as may arise from its negligence or bad faith;
provided, however, that, subject to the last paragraph of Section 8.01, neither
the Trustee nor the Fiscal Agent shall refuse to perform any of its duties
hereunder solely as a result of the failure to be paid the Trustee Fee and the
Trustee's expenses or any sums due to the Fiscal Agent.
The Master Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable out-of-pocket expenses incurred or made
by the Trustee in connection with any transfer of the servicing responsibilities
of the Master Servicer or the Special Servicer, respectively, hereunder,
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, in accordance with any of the provisions of
this Agreement (and including the reasonable fees and expenses and disbursements
of its counsel and all other persons not regularly in its employ), except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of the Trustee.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Seller, the Master Servicer and the Special Servicer (each, an "Indemnifying
Party") shall indemnify the Trustee and the Fiscal Agent and their respective
Affiliates and each of the directors, officers, employees and agents of the
Trustee, the Fiscal Agent and their respective Affiliates (each, an "Indemnified
Party"), and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Master Servicer,
any agent of the Master Servicer or sub-Master Servicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement, or are
unanticipated expenses (as defined below), other than (i) those resulting from
the negligence, fraud, bad faith or willful misconduct of the Indemnified Party
and (ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses" shall include any
fees, expenses and disbursement of any separate trustee or co-trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date, and the losses, liabilities,
damages, claims or incremental expenses (including reasonable attorneys' fees)
incurred or advanced by an Indemnified Party in connection with (i) a default
under any Mortgage Loan and (ii) any litigation arising out of this Agreement,
including, without limitation, under Section 2.03, Section 3.10, the third
paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Indemnified Parties under this Section 8.05(d) shall be
senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Master Servicer, the Special Servicer, the Paying Agent, the
Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Agreement, having a combined capital and
surplus of at least $50,000,000 and a rating on its unsecured long-term debt of
at least "BBB" by Fitch and "Baa2" by Xxxxx'x (or at any time when there is no
Fiscal Agent appointed and acting hereunder or any such Fiscal Agent so
appointed has a rating on its long-term unsecured debt that is lower than "AA"
by Fitch, "Aa2" by Xxxxx'x the rating on the unsecured long term debt of the
Trustee must be at least "AA" by Fitch, and "Aa2" by Xxxxx'x, or meet different
standards provided that each Rating Agency shall have confirmed in writing that
such different standards would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates) and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Master Servicer (except during
any period when the Trustee has assumed the duties of the Master Servicer
pursuant to Section 7.02); provided that, notwithstanding that the long-term
unsecured debt of LaSalle National Bank and ABN AMRO Bank N.V. are not rated by
Fitch, LaSalle National Bank shall not fail to qualify as Trustee solely by
virtue of the lack of such ratings until such time as Fitch shall notify the
Trustee, the Master Servicer and the Special Servicer in writing that LaSalle
National Bank is no longer exempt from the foregoing rating requirements imposed
by this sentence. If a corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In the event that the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of a REMIC (other than a tax corresponding
to a tax imposed under the REMIC Provisions) the Trustee shall elect either to
(i) resign immediately in the manner and with the effect specified in Section
8.07, (ii) pay such tax from its own funds and continue as Trustee or (iii)
administer the Trust Fund from a state and local jurisdiction that does not
impose such a tax. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Seller, the Master Servicer and
each Rating Agency. Upon such notice of resignation, the Fiscal Agent shall also
be deemed to have been removed and, accordingly, the Master Servicer shall
promptly appoint a successor Trustee, the appointment of which would not, as
evidenced in writing, 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.
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 any Rating Agency 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 at least 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 in the event of the resignation or
removal of the Trustee, upon determination that it may no longer perform such
obligations and duties under applicable law, upon written confirmation from the
Rating Agencies 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 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
each Rating Agency, 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.
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 Xxxxxx X. Xxxxxxx, 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 Seller may effect an early termination of the Trust Fund, upon not
less than 30 days' prior notice given to 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 and the Marriott Desert Springs Parent Loan then included in the
Trust Fund, and all property acquired in respect of any Mortgage Loan or the
Marriott Desert Springs Parent 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 and the Marriott Desert Springs Parent 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 or the Marriott Desert Springs
Parent Loan (including for this purpose any Mortgage
Loan or the Marriott Desert Springs Parent Loan as to
which title to the related Mortgaged Property or the
Marriott Desert Springs Pledged Collateral has been
acquired) at the Mortgage Rate (plus the Excess Rate, to
the extent applicable) or the MDSPL Interest Rate, as
applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date;
(D) the aggregate amount of unreimbursed Property Advances,
and unpaid Servicing Fees, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses, in
each case to the extent permitted hereby with interest
on all unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the
Marriott Desert Springs Parent Loan, and all other property
acquired in respect of any Mortgage Loan or the Marriott Desert
Springs Parent Loan in the Trust Fund, 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 or the MDSPL
Interest Rate.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to this Agreement
or by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne
by the party exercising its purchase rights hereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to this subsection (c).
Any Mortgage Loan purchased under the circumstances described in this
subsection (c) will be purchased subject to a continuing right of (i) the
holders of the Class Q Certificates to receive from the purchaser(s), from time
to time, payments corresponding to Default Interest with respect to such
Mortgage Loan and (ii) the holders of the Classes of Certificates entitled to
receive the Excess Interest with respect to such Mortgage Loan, as specified in
Section 2.06(b), to receive from the purchaser(s), from time to time, payments
corresponding to Excess Interest with respect to such Mortgage Loan.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests, notwithstanding that such distribution may be insufficient to
distribute in full an amount equal to the remaining Certificate Principal Amount
of each such Certificate, Lower-Tier Regular Interest, together with amounts
required to be distributed on such Distribution Date pursuant to Section 4.01 or
(ii) if no such Regular Certificates are then outstanding, to the Holders of the
Class LR Certificates of any amount remaining in the Collection Account or the
Lower-Tier Distribution Account, and to the Holders of the Class R Certificates
of any amount remaining in the Upper-Tier Distribution Account, in either case,
following the later to occur of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (b) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund and (iii) to the holders of the Class Q Certificates, of any
amount remaining in the Class Q Distribution Account to the holders of
Certificates entitled to receive Excess Interest, as provided in Section
2.06(b), of any amount remaining in the Excess Interest Distribution Account and
to the holders of the Class M and the Class MX Certificates, of any amount
remaining in the Class M 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
of Class M, Class MX, 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
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services Group, GS Mortgage Securities Corporation II,
Series 1998-XX XX
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities
Trust Services Group, GS Mortgage Securities Corporation II,
Series 1998-XX XX
If to the Seller, to:
GS Mortgage Securities Corporation II
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
With a copy to: Xxx Xxxxxxx
If to the Master Servicer or the Special Servicer, to:
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Servicing Manager
With a copy to:
General Counsel
If to the Underwriter, to:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx and J. Xxxxxxxx Xxxxxx
With a copy to: Xxx Xxxxxxx
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 10.06 Notice to the Seller and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Seller and each Rating Agency with respect to each of the following of which
a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Master Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(c);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Lower-Tier Distribution Account or the Upper-Tier Distribution
Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master
Servicer;
(viii) any change in the lien priority of a Mortgage Loan;
(ix) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property; and
(x) any material damage to a Mortgaged Property.
(b) The Master Servicer (or the Trustee with respect to item (iv) below)
shall promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15;
(iii) upon request, a copy of each operating and other financial
statements, rent rolls, occupancy reports, and sales reports to
the extent such information is required to be delivered under a
Mortgage Loan, in each case to the extent collected pursuant to
Section 3.03;
(iv) each report to Certificateholders described in Section 4.02 and
Section 3.20 and any Special Event Report prepared pursuant to
Section 3.20(b);
(v) upon request, each inspection report prepared in connection with
any inspection conducted pursuant to Section 3.19(a); and
(vi) upon request, any financial reports (including, audited annual
financials, balance sheets and profit/loss statements and
quarterly unaudited financial statements or similar information)
received by the Master Servicer with respect to the Marriott
Desert Springs Parent Borrower.
(c) The Master Servicer shall furnish each Rating Agency with such
information with respect to the Trust Fund, any Mortgaged Property, a Borrower
and a non-performing or Specially Serviced Mortgage Loan as such Rating Agency
shall reasonably request and which the Master Servicer can reasonably obtain.
The Rating Agencies shall not be charged any fee or expense in connection
therewith.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Xxxxx'x Investor Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director
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 three 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 received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of all the
holders of all Certificates representing all Percentage
Interests of the Class or Classes affected thereby;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under this Agreement, without the consent of the
Holders of all Certificates representing all of the Percentage
Interest of the Class or Classes affected hereby;
(iii) alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to make a P&I Advance or Property Advance, as applicable,
without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all
Certificates representing all Percentage Interests of the Class
or Classes affected thereby.
In the event that neither the Seller nor any successor thereto, if any, is
in existence, any amendment under this Section 10.07 shall be effective with the
consent of the Trustee, the Fiscal Agent, and the Master Servicer, in writing,
and to the extent required by this Section, the Certificateholders. Promptly
after the execution of any amendment, the Master Servicer shall forward to the
Trustee and the Trustee shall furnish written notification of the substance of
such amendment to each Certificateholder and each Rating Agency. It shall not be
necessary for the consent of Certificateholders under this Section 10.07 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The method of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe; provided, however, that such method shall always be
by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Master Servicer and/or the Trustee, the Master Servicer and the Trustee
shall have received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i) or (ii) of the first sentence of this Section,
then at the expense of the Trust Fund), to the effect that such amendment will
not cause any of the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding, will not cause a tax
to be imposed on the Trust Fund under the REMIC Provisions (other than a tax at
the highest marginal corporate tax rate on net income from foreclosure property)
and will not cause the Grantor Trust to fail to qualify as a grantor trust.
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Master
Servicer may request and shall be entitled to rely conclusively upon an Opinion
of Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in clause (i), (ii), (iii)
or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans and the Marriott Desert Springs Parent
Loan) 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, Lower-Tier Distribution Account, Upper-Tier Distribution
Account, Class Q Distribution Account, Excess Interest Distribution Account, the
Class M Collection Account and Class M 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.
IN WITNESS WHEREOF, the Seller, the Master Servicer, the Special Servicer,
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: /s/Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
GMAC COMMERCIAL MORTGAGE
CORPORATION,
as Master Servicer and as Special Servicer
By: /s/Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
LASALLE NATIONAL BANK,
as Trustee, Custodian, Certificate
Registrar
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V.,
as Fiscal Agent of the Trustee
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
State of Illinois )
) ss.
County of Xxxx )
On the 21st day of May 1998, before me, Xxxxxxx X. Xxxxxx, a notary public
in and for said State, personally appeared Xxxxxxx X. Xxxxxxxxxx, known to me to
be a Senior Vice President of LaSalle National Bank, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
My Commission Expires: 12-01-2001
[Notarial Seal]
STATE OF PENNSYLVANIA )
) ss:
COUNTY OF XXXXXXXXXX )
On the 19th day of May, 1998, before me, Xxxxxxx X. Xxxxxxxx Notary Public
in and for said State, personally appeared Xxxxxxx Xxxxxxxxx, Senior Vice
President, 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 she executed the same in her authorized capacity, and
that by her signature on the instrument the corporation 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.
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
NOTARY PUBLIC
My Commission expires:
(stamp)
[Notarial Seal]
(seal)
This instrument prepared by:
-----------------------------------
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On the 21st day of May, 1998, before me, Xxxxxxx X. Xxxxxx, a notary public
in and for said State, personally appeared Xxxxx Xxxxx, Vice President, and
Xxxxxx X. Xxxxxx, Group Vice President, respectively, of ABN AMRO BANK N.V., one
of the entities that executed the within instrument and also known to me to be
the persons who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
NOTARY PUBLIC
[Notarial Seal]
My commission expires: December 1, 2001
ADDENDUM
The "Class M Pass-Through Rate" is a per annum rate equal to 7.881%,
subject to adjustment as provided for in the Pooling and Servicing Agreement,
dated as of May 11, 1998, among GS Mortgage Securities Corporation II, as
Seller, GMAC Commercial Mortgage Corporation, as Master Servicer and Special
Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent.
EXHIBIT A-1
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS A-1
Pass-Through Rate: 6.312000%
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class A-1 Certificates:
$278,000,000
CUSIP: 36227C AZ6 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CAZ64 $[----------------]
Common Code: 8750335
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 M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1 Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, as provided in the Pooling Agreement.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling Agreement. The "Interest Accrual Period" with respect to any
Distribution Date and with respect to Class 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-2
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS A-2
Pass-Through Rate: 6.562000%
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class A-2 Certificates:
$694,315,000
CUSIP: 36228C BA0 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CBA09 $[-----------------]
Common Code: 8750351
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 M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-2 Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-3
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, 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 STATED PRINCIPAL BALANCE OF
THE CLASS A-1, CLASS A-2, CLASS B AND CLASS C COMPONENTS AS SET FORTH IN THE
POOLING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL
AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL
AMOUNT SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CLASS X CERTIFICATE IS ISSUED ON MAY 21, 1998, AT AN ISSUE PRICE OF
3.20813% OF THE INITIAL NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON,
AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH
FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE
PROSPECTUS SUPPLEMENT DATED MAY 14, 1998 WITH RESPECT TO THE OFFERING OF THE
CLASS A-1, CLASS A-2, CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT OF THIS CERTIFICATE IS APPROXIMATELY
1.172507%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 7.30%; AND (III) THE AMOUNT OF OID FOR THE SHORT FIRST
ACCRUAL PERIOD (MAY 21, 1998 THROUGH JUNE 12, 1998), COMPUTED USING THE EXACT
METHOD, AS A PERCENTAGE OF THE INITIAL NOTIONAL AMOUNT HEREOF, IS APPROXIMATELY
0.01226914%.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS X
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Notional Amount of the Distribution Date: April 2028
Class X Certificates:
$1,148,459,000
CUSIP: 36228C BB8 Initial Notional
Amount of this Certificate:
$[-------------------]
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 M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
X Certificates for such Distribution Date, all as more fully described in the
Pooling Agreement. Holders of this Certificate may be entitled to Prepayment
Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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, 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-4
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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 XXXXX 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.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS B
Pass-Through Rate: As determined in accordance with the
Pooling Agreement:
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class B Certificates:
$91,595,000
CUSIP: 36228C BC6 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CBC60 $[-----------]
Common Code: 8750378
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 X-0, Xxxxx X-0, Class X, Class C, Class D, Class E,
Class F, Class G, Class M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed 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 the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-5
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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 XXXXX 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.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS C
Pass-Through Rate: As determined in accordance with the
Pooling Agreement:
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class C Certificates:
$84,549,000
CUSIP: 36228C BD4 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CBD48 $[--------------]
Common Code: 8750394
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 X-0, Xxxxx X-0, Class X, Class
B, Class D, Class E, Class F, Class G, Class M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class C Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-6
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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 XXXXX 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.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS D
Pass-Through Rate: As determined in accordance with the
Pooling Agreement
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class D Certificates:
$98,641,000
CUSIP: 36228C BE2 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CBE21 $[---------------]
Common Code: 8750432
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 X-0, Xxxxx X-0, Class X, Class B, Class C, Class E,
Class F, Class G, Class M, Class MX, Class Q, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class D Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower.
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-7
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, 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 XXXXX 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 MAY 21, 1998, AND BASED ON ITS ISSUE PRICE OF
97.7432% OF ITS INITIAL PRINCIPAL BALANCE, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS
8 DAYS OF INTEREST AT THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A) THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED MAY 14, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2,
CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 2.416568%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 7.41%; AND (III) THE AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL
PERIOD (MAY 21, 1998 THROUGH JUNE 12, 1998), COMPUTED USING THE EXACT METHOD, AS
A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE THEREOF, IS APPROXIMATELY
0.01326842%.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-XX XX, CLASS E
Pass-Through Rate: As determined in accordance with the
Pooling Agreement
First Distribution Date: Cut-Off Date: May 11, 1998
June 15, 0000
Xxxxxxxxx Initial Scheduled Final
Certificate Principal Amount of the Distribution Date: April 2028
Class E Certificates:
$70,458,000
CUSIP: 36228C BF9 Initial Certificate Principal
Amount of this Certificate:
ISIN: US36228CBF95 $[------------------]
Common Code: 8750459
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 X-0, Xxxxx X-0, Class X, Class B, Class C, Class D,
Class F, Class G, Class M, Class MX, Class Q, Class R and Class LR Certificates
(together with the Class E Certificates, the "Certificates"; the Holders of
Certificates issued under the Pooling Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class E Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed 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 the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate, as applicable.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
EXHIBIT A-8
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, CLASS F
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 000 XX XXXXXXXXXX X, XX (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 XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X,
CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES AS AND TO THE EXTENT SET
FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON MAY 21, 1998, AND BASED ON ITS ISSUE PRICE OF
92.52447% OF ITS INITIAL PRINCIPAL BALANCE, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS
8 DAYS OF INTEREST AT THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A) THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED MAY 14, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2,
CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 7.635318%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.16%; AND (III) THE AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL
PERIOD (MAY 21, 1998 THROUGH JUNE 12, 1998), COMPUTED USING THE EXACT METHOD, AS
A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE THEREOF, IS APPROXIMATELY
0.05433025%.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, CLASS F
Pass-Through Rate: As determined in accordance with the
Pooling Agreement.
First Distribution Date: June 15, 1998 Cut-off Date: May 11, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class F Certificates: April 2028
$63,411,000
ISIN: usu03911aa94
CUSIP: [for 144A: 36228C BG7]
[for Reg. S: U03911 AA9]
[for Reg. D: 36228C BH5]
Common Code: 8765561 Initial Notional
Balance of this Certificate:
$[----------------]
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 X-0, Xxxxx X-0, Class X, Class
B, Class C, Class D, Class E, Class G, Class M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class F Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 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 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues received in respect of
any REO Property; (v) any property acquired on behalf of the Trust Fund through
foreclosure on the Marriott Desert Springs Pledged Collateral; (vi) 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; (vii) any Assignments of Leases, Rents and Profits and
any security agreements; (viii) any indemnities or guarantees given as
additional security for any Mortgage Loans and the Marriott Desert Springs
Parent Loan; (ix) all assets deposited in the Collection Account, the Class M
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 Class M Distribution
Account and any REO Account including reinvestment income thereon; (x) any
environmental indemnity agreements relating to the Mortgaged Properties; (xi)
the rights and remedies under the Loan Sale Agreement and the Responsible Party
Agreement; and (xii) the proceeds of any of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Escrow Accounts, and any
Reserve Accounts, to the extent such interest belongs to the related Borrower).
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 to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Certificates
by each Rating Agency; (v) 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; 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.
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
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling Agreement, without the consent of all the Holders of all
Certificates representing all Percentage Interests of the Class or
Classes affected thereby;
(iii)alter the Servicing Standard or the obligations of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance 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 Seller may effect an early termination of the Trust Fund, upon not less
than 30 days' prior notice given to the Trustee and Master Servicer any time on
or after the Early Termination Notice Date (defined as any date as of which the
aggregate Stated Principal Balance of the Mortgage Loans is less than 1.0% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off
Date) specifying the Anticipated Termination Date, by purchasing on such date
all, but not less than all, of the Mortgage Loans and the Marriott Desert
Springs Parent Loan then included in the Trust Fund, and all property acquired
in respect of any Mortgage Loan or the Marriott Desert Springs Parent 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 and
the Marriott Desert Springs Parent 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 or the Marriott Desert Springs Parent Loan
(including for this purpose any Mortgage Loan or the Marriott
Desert Springs Parent Loan as to which title to the related
Mortgaged Property or the Marriott Desert Springs Pledged
Collateral has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) or the MDSPL Interest
Rate, as applicable, to the last day of the Interest Accrual
Period preceding such Distribution Date; and
(D) the aggregate amount of unreimbursed Property Advances, and
unpaid Servicing Fees, Special Servicing Compensation, Trustee
Fees and Trust Fund expenses, in each case to the extent
permitted under the Pooling Agreement with interest on all
unreimbursed Advances at the Advance Rate; and
(ii) the aggregate fair market value of the Mortgage Loans and the Marriott
Desert Springs Parent Loan, and all other property acquired in respect
of any Mortgage Loan or the Marriott Desert Springs Parent Loan in the
Trust Fund, 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 or the MDSPL
Interest Rate.
The Master Servicer or, if the Master Servicer does not, any Holder of a
Class LR Certificate representing greater than a 50% Percentage Interest in such
Class, may also effect such termination as provided above if it first notifies
the Seller, or the Seller and the Master Servicer, respectively, through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and neither the Seller nor the Master Servicer as the
case may be, terminates the Trust Fund as described above within such 30-day
period. All costs and expenses incurred by any and all parties to the Pooling
Agreement or by the Trust Fund in connection with the purchase of the Mortgage
Loans and other assets of the Trust Fund pursuant to Section 9.01(c) of the
Pooling Agreement shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to Section 9.01(c) of
the Pooling Agreement.
The respective obligations and responsibilities of the Master Servicer, the
Special Servicer, the Seller, the Trustee and the Fiscal Agent created by the
Pooling Agreement with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as set
forth in the Pooling Agreement) shall terminate immediately following the
occurrence of the last action required to be taken by the Trustee pursuant to
Article IX of the Pooling Agreement on the Termination Date; provided, however,
that in no event shall the trust created thereby continue beyond the expiration
of twenty-one years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, 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.
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
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
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
By:
EXHIBIT A-9
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, CLASS G
[If a Global Certificate is to be held by or for The Depository Trust Company,
then insert: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE
FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR
THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
[If Restricted Certificates issued to qualified institutional buyers within the
meaning of Rule 144A under the Securities Act and Institutional Accredited
Investors that are not qualified institutional buyers within the meaning of Rule
144A under the Securities Act, insert: THIS CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), WHOM THE HOLDER
HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 (IF AVAILABLE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 000 XX XXXXXXXXXX X, XX (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 XXXXX PLAN, WHICH IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) THAT IS SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR
(B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR SIMILAR LAW TO INCLUDE
ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PROSPECTIVE TRANSFEREE OF
THIS CERTIFICATE WILL BE REQUIRED TO DELIVER TO THE SELLER, THE CERTIFICATE
REGISTRAR AND THE TRUSTEE, (I) A REPRESENTATION LETTER, SUBSTANTIALLY IN THE
FORM OF AN EXHIBIT TO THE POOLING AGREEMENT REFERRED TO HEREIN, STATING THAT
SUCH PROSPECTIVE TRANSFEREE IS NOT A PERSON REFERRED TO IN CLAUSE (A) OR (B)
ABOVE, OR (II) AN OPINION OF COUNSEL WHICH ESTABLISHES TO THE SATISFACTION OF
THE SELLER, THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO TITLE I OF ERISA, SECTION 4975
OF THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA OR SECTION 4975 OF THE CODE OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER SIMILAR LAW, AND WILL NOT SUBJECT THE
MASTER SERVICER, THE SPECIAL SERVICER, THE SELLER, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE TRUST FUND, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE CERTIFICATE REGISTRAR OR THE SELLER. EACH TRANSFEREE OF A
BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
REFERRED TO IN CLAUSE (A) OR (B) ABOVE.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AGREEMENT REFERRED TO BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS X,
CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES AS AND TO THE EXTENT SET
FORTH IN THE POOLING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A PRO RATA
UNDIVIDED BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE CODE, AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON MAY 21, 1998, AND BASED ON ITS ISSUE PRICE OF
80.24322% OF ITS INITIAL PRINCIPAL BALANCE, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS
8 DAYS OF INTEREST AT THE PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A) THAT THIS
CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE
PREPAYMENT ASSUMPTION OF SCENARIO 1 (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT
DATED MAY 14, 1998 WITH RESPECT TO THE OFFERING OF THE CLASS A-1, CLASS A-2,
CLASS X, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES) USED TO PRICE THIS
CERTIFICATE, AND (B) THAT THE PASS-THROUGH RATE HEREON CHANGES IN ACCORDANCE
WITH SUCH PREPAYMENT ASSUMPTION: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 19.916568%; (II)
THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 10.00%; AND (III) THE AMOUNT OF OID FOR THE SHORT FIRST ACCRUAL
PERIOD (MAY 21, 1998 THROUGH JUNE 12, 1998), COMPUTED USING THE EXACT METHOD, AS
A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE THEREOF, IS APPROXIMATELY
0.13370745%.
GS MORTGAGE SECURITIES CORPORATION II
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-XX XX, CLASS G
Pass-Through Rate: As determined in
accordance with the Pooling Agreement.
First Distribution Date: June 15, 1998 Cut-off Date: May 11, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class G Certificates: April 2028
$28,183,997
CUSIP: [for 144A: 36228C BJ1] ISIN: USU03911AB77
[for Reg. S: U03911 AB7]
[for Reg. D: 36228C BK8]
Common Code: 8765570 Initial Notional
Balance of this Certificate:
$[----------------]
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 X-0, Xxxxx X-0, Class X, Class B, Class C, Class D,
Class E, Class F, Class M, Class MX, 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 May 11, 1998 (the "Pooling
Agreement"), by and among GS Mortgage Securities Corporation II, as Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer and Special Servicer,
LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To
the extent not defined herein, capitalized terms used herein shall have the
meanings assigned thereto in the Pooling Agreement.
This Certificate represents a pro rata undivided beneficial interest in a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal
Revenue Code of l986, 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 second Business Day following the 11th
day of each month, commencing on June 15, 1998 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to such Person's pro rata share (based on
the Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class G Certificates for such Distribution Date, all as more fully
described in the Pooling Agreement. Holders of this Certificate may be entitled
to Prepayment Premiums, 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 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 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 and the Marriott Desert Springs Parent Loan 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 and the Marriott Desert Springs Parent Loan due after the
Cut-Off Date; (iii) any REO Property; (iv) all revenues receiv