EXHIBIT 4.1
GS MORTGAGE SECURITIES CORPORATION II,
Depositor,
________________________________________,
Master Servicer,
___________________________________,
Special Servicer,
and
__________________________________,
Trustee
---------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of _________, _____
---------------------------------------------------------
Commercial Mortgage Pass-Through Certificates
Series 200_-___
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms...................................................4
Section 1.02 Certain
Calculations...........................................63
Section 1.03 Certain
Constructions..........................................65
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans...................................69
Section 2.02 Acceptance by Custodian and
the Trustee........................69
Section 2.03 Mortgage Loan Sellers'
Repurchase or Substitution of
Mortgage .Loans for Document Defects in Mortgage Files
and Breaches of Representations and
Warranties.................73
Section 2.04 Representations, Warranties
and Covenants of the Master
Servicer.......................................................76
Section 2.05 Representations, Warranties
and Covenants of the
Special.
Servicer..............................................78
Section 2.06 Execution and Delivery of
Certificates; Issuance of
Lower-Tier .Regular
Interests..................................79
Section 2.07 Miscellaneous REMIC and
Grantor Trust Provisions...............80
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Master Servicer to Act as
Master Servicer;
Administration of the .Mortgage
Loans..........................83
Section 3.02 Liability of the Master
Servicer and Special Servicer..........83
Section 3.03 Collection of Certain
Mortgage Loan Payments...................83
Section 3.04 Collection of Taxes,
Assessments and Similar Items;
Escrow
.Accounts...............................................83
Section 3.05 Collection Account;
Upper-Tier Distribution Account;
Lower-Tier .Distribution Account; Excess Liquidation
Proceeds Reserve Account; Excess Interest Distribution
Account........................................................85
Section 3.06 Permitted Withdrawals from
the Collection Account..............87
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Section 3.07 Investment of Funds in the
Collection Account, the REO
Account, .the Interest Reserve Account, the Mortgagor
Accounts, the Excess Liquidation Proceeds Reserve
Account and Other
Accounts.....................................90
Section 3.08 Maintenance of Insurance
Policies and Errors and
Omissions and .Fidelity
Coverage...............................91
Section 3.09 Enforcement of Due-On-Sale
Clauses; Assumption
Agreements; .Defeasance
Provisions.............................95
Section 3.10 Realization Upon Defaulted
Mortgage Loans......................98
Section 3.11 Trustee to Cooperate;
Release of Mortgage Files...............101
Section 3.12 Servicing Fees and Special
Servicing Compensation.............102
Section 3.13 Compensating Interest
Payments................................104
Section 3.14 Annual Statement as to
Compliance.............................105
Section 3.15 Annual Independent Public
Accountants' Servicing Report.......105
Section 3.16 Access to Certain
Documentation...............................106
Section 3.17 Title and Management of REO
Properties........................106
Section 3.18 Sale of Defaulted Mortgage
Loans and REO Properties...........109
Section 3.19 Additional Obligations of
the Master Servicer;
Inspections...................................................114
Section 3.20 Reports to the Securities
and Exchange Commission;
Available
.Information........................................114
Section 3.21 Lock-Box Accounts, Escrow
Accounts............................116
Section 3.22 Property
Advances.............................................116
Section 3.23 Appointment of Special
Servicer...............................117
Section 3.24 Transfer of Servicing
Between Master Servicer and
Special .Servicer; Record
Keeping.............................118
Section 3.25 Interest Reserve
Account......................................119
Section 3.26 Controlling Class
Approvals...................................119
Section 3.27 Modifications, Waivers and
Amendments.........................122
Section 3.28 Companion Paying
Agent........................................122
Section 3.29 Companion
Register............................................128
Section 3.30 Additional Obligations with
Respect to Certain Mortgage
Loans.........................................................128
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions.................................................129
Section 4.02 Statements to
Certificateholders; Certain Reports by the
Master .Servicer
and the Special Servicer.....................140
Section 4.03 Compliance with Withholding
Requirements......................148
Section 4.04 REMIC
Compliance..............................................149
Section 4.05 Imposition of Tax on the
Trust Fund...........................150
Section 4.06 Remittances; P&I
Advances.....................................151
Section 4.07 Grantor Trust
Reporting.......................................153
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ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates..............................................153
Section 5.02 Registration, Transfer and
Exchange of Certificates...........158
Section 5.03 Mutilated, Destroyed, Lost
or Stolen Certificates.............168
Section 5.04 Appointment of Paying
Agent...................................168
Section 5.05 Access to
Certificateholders' Names and Addresses.............169
Section 5.06 Actions of
Certificateholders.................................169
Section 5.07 Authenticating
Agent..........................................169
Section 5.08 Appointment of
Custodians.....................................170
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor,
the Master Servicer and the
Special
.Servicer.............................................171
Section 6.02 Merger or Consolidation of
the Master Servicer and the
Special
.Servicer.............................................171
Section 6.03 Limitation on Liability of
the Depositor, the Master
Servicer and
.Others..........................................171
Section 6.04 Limitation on Resignation of
the Master Servicer or
Special
.Servicer.............................................172
Section 6.05 Rights of the Depositor and
the Trustee in Respect of
the Master .Servicer and Special
Servicer.....................173
Section 6.06 Master Servicer or Special
Servicer as Owner of a
Certificate...................................................174
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default.............................................175
Section 7.02 Trustee to Act; Appointment
of Successor......................177
Section 7.03 Notification to
Certificateholders............................179
Section 7.04 Other Remedies of
Trustee.....................................179
Section 7.05 Waiver of Past Events of
Default; Termination.................179
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee.............................................180
Section 8.02 Certain Matters Affecting
the Trustee.........................182
Section 8.03 Trustee Not Liable for
Certificates or Mortgage Loans.........183
Section 8.04 Trustee May Own
Certificates..................................185
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Section 8.05 Payment of Trustee Fees and
Expenses; Indemnification.........186
Section 8.06 Eligibility Requirements for
Trustee..........................188
Section 8.07 Resignation and Removal of
the Trustee........................188
Section 8.08 Successor
Trustee.............................................189
Section 8.09 Merger or Consolidation of
Trustee............................190
Section 8.10 Appointment of Co-Trustee or
Separate Trustee.................190
Section 8.11 Controlling
Certificateholders and Controlling Class
.Representative...............................................191
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
Section 9.01 Termination; Optional
Mortgage Loan Purchase..................192
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01
Counterparts..................................................197
Section 10.02 Limitation on Rights of
Certificateholders....................197
Section 10.03 Governing
Law.................................................197
Section 10.04
Notices.......................................................198
Section 10.05 Severability of
Provisions....................................198
Section 10.06 Notice to the Depositor and Each
Rating Agency................198
Section 10.07
Amendment.....................................................199
Section 10.08 Confirmation of
Intent........................................202
Section 10.09 No Intended Third-Party
Beneficiaries.........................202
Section 10.10 Request by
Certificateholders.................................203
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TABLE OF EXHIBITS
Exhibit A-1 Form
of [Class A-1] Certificate
Exhibit A-2 Form
of [Class A-2] Certificate
Exhibit A-3 Form
of [Class A-3] Certificate
Exhibit A-4 Form
of [Class X-1] Certificate
Exhibit A-5 Form
of [Class X-2] Certificate
Exhibit A-6 Form
of [Class B] Certificate
Exhibit A-7 Form
of [Class C] Certificate
Exhibit A-8 Form
of [Class D] Certificate
Exhibit A-9 Form
of [Class E] Certificate
Exhibit A-10 Form of
[Class F] Certificate
Exhibit A-11 Form of
[Class G] Certificate
Exhibit A-12 Form of
[Class H] Certificate
Exhibit A-13 Form of
[Class J] Certificate
Exhibit A-14 Form of
[Class K] Certificate
Exhibit A-15 Form of
[Class L] Certificate
Exhibit A-16 Form of
[Class M] Certificate
Exhibit A-17 Form of
[Class N] Certificate
Exhibit A-18 Form of
[Class O] Certificate
Exhibit A-19 Form of
[Class P] Certificate
Exhibit A-20 Form of
[Class S] Certificate
Exhibit A-21 Form of
[Class LR] Certificate
Exhibit A-22 Form of
[Class R] Certificate
Exhibit B
Mortgage Loan Schedule
Exhibit C-1 Form
of Transferee Affidavit
Exhibit C-2 Form
of Transferor Letter
Exhibit D-1 Form
of Investment Representation Letter
Exhibit D-2 Form
of ERISA Representation Letter
Exhibit E
Form of Request for Release
Exhibit F
Securities Legend
Exhibit G
Distribution Date Statement
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Exhibit H
Methodology to Normalize Net Operating Income and Debt
Service Coverage Ratio
Exhibit I-1 Form
of Regulation S Transfer Certificate for Transfers
during Restricted Period
Exhibit I-2 Form
of Regulation S Transfer Certificate for Transfers
after Restricted Period
Exhibit J
Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit K
Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit L
Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate during the Restricted Period
Exhibit M
Form of Transfer Certificate for Regulation S Global
Certificate during Restricted Period
Exhibit N
Form of Certification Accompanying Form 10-K
Exhibit O-1 Form
of Investor Certification
Exhibit O-2 Form
of Confidentiality Agreement
Exhibit P
Form of Back-Up Certification Accompanying Form 10-K
Exhibit Q
Initial Companion Holders
Exhibit R
Trustee Certification/Exception Report
Schedule I
Additional Servicing Fee Schedule
Schedule II
Broker Strip Loans
Schedule III Strip
Calculation Schedule
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Pooling and Servicing Agreement, dated as of _______, 20__, among
GS
Mortgage Securities Corporation II, as
Depositor, ______________________, as
Master Servicer, ______________________, as
Special Servicer, and
______________________, as Trustee.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary
Statement shall have the meanings
specified in Article I hereof)
The Depositor 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 Excess Interest and the Excess
Interest 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 A-1],
[Class A-2], [Class A-3], [Class X-1],
[Class X-2], [Class B], [Class C], [Class
D], [Class E], [Class F], [Class G], [Class
H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P]
and [Class S] Certificates (other
than the right of the [Class S]
Certificates to receive Excess Interest)
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 thirty-five classes of
uncertificated Lower-Tier Regular Interests
issued under this Agreement (the
[Class LA-1-1], [Class LA-1-2], [Class
LA-1-3], [Class LA-2-1], [Class LA-2-2],
[Class LA-2-3], [Class LA-2-4], [Class
LA-3-1], [Class LA-3-2], [Class LB],
[Class LC-1], [Class LC-2], [Class LD-1],
[Class LD-2], [Class LD-3], [Class
LE-1], [Class LE-2], [Class LF-1], [Class
LF-2], [Class LG-1], [Class LG-2],
[Class LH], [Class LJ-1], [Class LJ-2],
[Class LK], [Class LL], [Class LM],
[Class LN], [Class LO], [Class LP] and
[Class LS] 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 Excess
Interest and the Excess Interest
Distribution Account will be treated as a
grantor trust under Subpart E of Part
1 of Subchapter J of the Code, that the
[Class S] Certificates represent
undivided beneficial interests in the
portion of the Trust Fund consisting of
the Excess Interest and the Excess Interest
Distribution Account.
UPPER -- TIER REMIC
The [Class A-1], [Class A-2], [Class A-3], [Class B], [Class
C],
[Class D], [Class E][, Class F], [Class G],
[Class H], [Class J], [Class K],
[Class L], [Class M], [Class N], [Class P],
[Class S] (exclusive of the right to
receive Excess Interest), [Class X-1] and
[Class X-2] Certificates will evidence
"regular interests" in the Upper-Tier REMIC
created hereunder.
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The sole Class of "residual interests" in
the Upper-Tier REMIC created hereunder
will be evidenced by the [Class R]
Certificates.
The following table sets forth the designation, the
pass-through
rate (the "Pass-Through Rate"), the
aggregate initial principal amount (the
"Original Certificate Balance") or Notional
Amount ("Original Notional Amount"),
as applicable, and the initial ratings
given each Class by the Rating Agencies
(the "Original Ratings") for each Class of
Certificates comprising the interests
in the Upper-Tier REMIC created
hereunder:
Original
Related Pass-Through
Rate
Original
Ratings
Certificate (per
annum)
Certificate Balance (___/___)(1)
----------- -----------------
-------------------- ------------
[Class A-1]
%
$
[Class A-2]
%
$
[Class A-3]
%
$
[Class B]
%
$
[Class C]
%
$
[Class D]
%(2)
$
[Class E]
%(2)
$
[Class F]
%(2)
$
[Class G]
%(2)
$
[Class H]
%(2)
$
[Class J]
%(2)
$
[Class K]
%(2)
$
[Class L]
%(2)
$
[Class M]
%(2)
$
[Class N]
%(2)
$
[Class O]
%(2)
$
[Class P]
%(2)
$
[Class S]
%(2)
$
[Class X-1]
(3)
$(4)
[Class X-2]
(3)
$(4)
[Class R]
None
None (5)
------------
(1) The Certificates marked with
an asterisk have not been rated by the
applicable
Rating Agency.
(2) The Pass-Through Rate for
any Distribution Date for the [Class D], [Class
E], [Class
F], [Class G], [Class H], [Class J], [Class K], [Class L],
[Class M],
[Class N], [Class O], [Class P] and [Class S] Certificates will
be subject
to a WAC Cap.
(3) The Pass-Through Rates for
each of the [Class X-1] and [Class X-2]
Certificates will be calculated in accordance with the related
definitions
of "[Class
X-1] Pass-Through Rate" and "[Class X-2] Pass-Through Rate," as
applicable.
(4) The [Class X-1] and [Class
X-2] Certificates will not have a Certificate
Balance;
rather, each such Class of Certificates will accrue interest as
provided
herein on the related [Class X-1] Notional Amount and [Class
X-2]
Notional
Amount, as applicable.
(5) The [Class R] Certificates
do not have a Certificate Balance or Notional
Amount, do
not bear interest and will not be entitled to distributions of
Yield
Maintenance Charges. Any Available Distribution Amount
remaining
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in the
Upper-Tier Distribution Account, after all required
distributions
under this
Agreement have been made to each other Class of Certificates,
will be
distributed to the Holders of the [Class R] Certificates.
The following table sets forth the Class or Component
designation,
the corresponding Lower-Tier Regular
Interest (the "Corresponding Lower-Tier
Regular Interest"), the Corresponding
Components of the [Class X] Certificates
and the Original Class Principal Balance
for each Class of Sequential Pay
Certificates (the "Corresponding
Certificates").
Original
Corresponding
Original
Corresponding Lower-
Components
Class Lower-Tier
Tier
of [Class X]
Corresponding Principal Regular
Principal
Certificates
Certificates Balance
Interests
(1)
Balance
(1)
------------- --------- ------------- --------- -------------
[Class A-1]
$
[LA-1-1]
$
[IO-A-1-1]
[LA-1-2]
$
[IO-A-1-2]
[LA-1-3]
$
[IO-A-1-3]
[Class A-2]
$
[LA-2-1]
$
[IO-A-2-1]
[LA-2-2]
$
[IO-A-2-2]
[LA-2-3]
$
[IO-A-2-3]
[LA-2-4]
$
[IO-A-2-4]
[Class A-3]
$
[LA-3-1]
$
[IO-A-3-1]
[LA-3-2]
$
[IO-A-3-2]
[Class B]
$
[LB]
$
[IO-B]
[Class C]
$
[LC-1]
$
[IO-C-1]
[LC-2]
$
[IO-C-2]
[Class D]
$
[LD-1]
$
[IO-D-1]
[LD-2]
$
[IO-D-2]
[LD-3]
$
[IO-D-3]
[Class E]
$
[LE-1]
$
[IO-E-1]
[LE-2]
$
[IO-E-2]
[Class F]
$
[LF-1]
$
[IO-F-1]
[LF-2]
$
[IO-F-2]
[Class G]
$
[LG-1]
$
[IO-G-1]
[LG-2]
$
[IO-G-2]
[Class H]
$
[LH]
$
[IO-H]
[Class J]
$
[LJ-1]
$
[IO-J-1]
[LJ-2]
$
[IO-J-2]
[Class K]
$
[LK]
$
[IO-K]
[Class L]
$
[LL]
$
[IO-L]
[Class M]
$
[LM]
$
[IO-M]
[Class N]
$
[LN]
$
[IO-N]
[Class O]
$
[LO]
$
[IO-O]
[Class P]
$
[LP]
$
[IO-P]
[Class S]
$
[LS]
$
[IO-S]
------------
(1) The Lower-Tier Regular
Interest and the Components of the [Class X]
Certificates that correspond to any particular Class of Sequential
Pay
Certificates also correspond to each other and, accordingly,
constitute
the
"Corresponding Lower-Tier Regular Interest" and the
"Corresponding
Components," respectively, with respect to each other. The interest
rate
of each
Lower-Tier Regular Interest is the WAC Rate.
The [Class R] and [Class LR] Certificates do not have
Certificate
Principal Amounts or Notional Amounts. The
Certificate Principal Amount of any
Class of Certificates
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outstanding at any time represents the
maximum amount which holders thereof are
entitled to receive as distributions
allocable to principal from the cash flow
on the Mortgage Loans and the other assets
in the Trust Fund; provided, however,
that in the event that amounts previously
allocated as Realized Losses to a
Class of Certificates in reduction of the
Certificate Principal Amount thereof
are recovered subsequent to the reduction
of the Certificate Principal Amount of
such Class to zero, such Class may receive
distributions in respect of such
recoveries in accordance with the
priorities set forth in Section 4.01. As of
the Cut-Off Date, the Mortgage Loans have
an aggregate Stated Principal Balance
equal to $___________.
_____ (__) mortgage loans (the "Companion Loans") are not part
of
the Trust Fund but are secured by
corresponding Mortgages that secure related
Mortgage Loans (each, an "AB Mortgage Loan"
and, collectively, the "AB Mortgage
Loans") that are part of the Trust Fund. As
and to the extent provided herein,
the Companion Loans will be serviced and
administered in accordance with this
Agreement. Amounts attributable to the
Companion Loans will not be assets of the
Trust Fund, and will be owned by the
Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special
Servicer and the Trustee 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.
"______________ AB Mortgage Loan": That certain AB Mortgage
Loan
evidenced by a note, which is an asset of
the Trust Fund, secured by the
Mortgaged Property identified on the
Mortgage______________
"______________ Companion Loan": That Companion Loan evidenced by
a
note, which is not an asset of the Trust
Fund, secured by the Mortgaged Property
securing the ______________ AB Mortgage
Loan.
"_______________ Intercreditor Agreement": The Intercreditor
Agreement, dated as of ______________,
20__, as amended, between
__________________, as A noteholder, and
__________________, as B noteholder.
The __________________ Intercreditor
Agreement relates to the _______________
Loan Pair.
"__________________ Loan Pair": The __________________ AB
Mortgage
Loan, together with the __________________
Companion Loan.
"__________________ Mortgaged Property": The property subject to
the
lien of the Mortgage securing the
__________________ Loan Pair.
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"AB Mortgage Loan": As defined in the Preliminary Statement.
"Accountant's Statement": As defined in Section 3.15.
"Accrued Component Interest": With respect to each Component of
the
[Class X-1] or [Class X-2] Certificates for
any Distribution Date, one month's
interest at the [Class X-1] Strip Rate or
[Class X-2] Strip Rate applicable to
such Component for such Distribution Date,
accrued on the Component Notional
Amount of such Component outstanding
immediately prior to such Distribution
Date. Accrued Component Interest shall be
calculated on a 30/360 Basis and, with
respect to any Component and any
Distribution Date, shall be deemed to accrue
during the calendar month preceding the
month in which such Distribution Date
occurs.
"Act": The Securities Act of 1933, as it may be amended from time
to
time.
"Additional Servicing Fee": With respect to each Additional
Servicing Fee Mortgage Loan, the fee
provided for in the Designated Sub-Servicer
Agreement (which may be comprised of a
designated sub-servicing fee and an
additional sub-servicing fee) that accrues
at the rate per annum set forth on
the Additional Servicing Fee Schedule.
"Additional Servicing Fee Schedule": Schedule I hereto.
"Additional Servicing Fee Mortgage Loans": The Mortgage Loans
secured by and any successor REO Mortgage
Loans relating to those Mortgaged
Properties identified on the Additional
Servicing Fee Schedule.
"Additional Trust Fund Expenses": (i) Special Servicing Fees,
Workout Fees and Liquidation Fees, (ii)
interest in respect of unreimbursed
Advances to the extent not covered by
Default Interest and late payment fees,
(iii) the cost of various default-related
or unanticipated Opinions of Counsel
required or permitted to be obtained in
connection with the servicing of the
Mortgage Loans and the administration of
the Trust Fund, (iv) unanticipated,
non-Mortgage Loan specific expenses of the
Trust Fund, including indemnities and
expense reimbursements to the Trustee,
indemnities and expense reimbursements to
the Master Servicer, the Special Servicer
and the Depositor 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
Mortgagor.
"Administrative Cost Rate": As of any date of determination, a
rate
equal to the sum of the Servicing Fee Rate
and the Trustee Fee Rate.
"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 or the Trustee, as applicable,
have not been reimbursed for the number
of days from the date on which such Advance
was made through, but not including,
the date of reimbursement of the related
Advance or other such amount, less any
amount of interest previously paid on such
Advance.
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"Advance Interest Reconciliation Report": A report prepared by
the
Master Servicer on a monthly basis,
detailing and reconciling on a loan by loan
basis, all P&I Advances, all Property
Advances, all Additional Trust Fund
Expenses, all interest on Advances and all
Penalty Charges collected. Such
report shall be delivered to the Special
Servicer on the Master Servicer
Remittance Date in each month.
"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 annually, 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 Depositor to determine
whether any Person is an Affiliate of
such party.
"Agent Member": Members of, or participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property
as
of any date of determination, the portion
of the principal balance of the
related Mortgage Loan then allocated to
such Mortgaged Property in accordance
with the terms of the applicable Mortgage
or Loan Agreement and subject to the
terms of this Agreement.
"Anticipated Repayment Date": With respect to any ARD Loan, the
date
indicated in the related Loan Documents
upon which such ARD Loan commences
accruing interest at the applicable Revised
Rate.
"Anticipated Termination Date": Any Distribution Date on which it
is
anticipated that the Trust Fund will be
terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": For any Mortgage Loan with respect
to
any month (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 or the Trustee,
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.
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
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"Appraisal": An appraisal prepared by an Independent MAI
appraiser
with at least five years experience in
properties of like kind and in the same
area, prepared in accordance with 12 C.F.R.
225.64.
"Appraisal Reduction Amount": For any Distribution Date and for
any
Mortgage Loan as to which an Appraisal
Reduction Amount is required to be
calculated, 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) the sum
of (A) [90]% of the appraised values
of the related Mortgaged Properties (as
determined (1) in the case of any
Mortgage Loan with an outstanding principal
balance equal to or in excess of
$[2,000,000], by one or more Appraisals
obtained by the Special Servicer (the
cost of which shall be advanced by the
Master Servicer as a Property Advance) or
(2) in the case of any Mortgage Loan with
an outstanding principal balance less
than $[2,000,000], by desktop value
estimation performed by the Special
Servicer); provided that the Special
Servicer may, with the consent of the
Majority Certificateholder of the
Controlling Class, order an Appraisal at the
expense of the Trust Fund and (B) all
escrows, letters of credit and reserves in
respect of such Mortgage Loan as of the
date of the calculation over (ii) the
sum as of the Due Date occurring in the
month of the date of determination of
(A) to the extent not previously advanced
by the Master Servicer or the Trustee,
all unpaid interest on such Mortgage Loan
at a per annum rate equal to its
Mortgage Rate, (B) all unreimbursed
Advances, with interest thereon at the
Advance Rate in respect of such Mortgage
Loan and (C) all currently due and
unpaid real estate taxes and assessments,
insurance premiums and ground rents,
unpaid Special Servicing Fees and all other
amounts, due and unpaid with respect
to such Mortgage Loan (which taxes,
premiums, ground rents and other amounts
have not been the subject of an Advance by
the Master Servicer or the Trustee,
as applicable, and/or for which funds have
not been escrowed). Within [30] days
after the occurrence of the Appraisal
Reduction Event (or such longer period as
the Special Servicer is (as certified
thereby to the Trustee in writing)
diligently and in good faith proceeding to
obtain such), if an Appraisal or
desktop value estimation, as applicable,
has not been obtained within the
immediately preceding 12 months (or if the
Special Servicer has determined such
Appraisal to be materially inaccurate), the
Special Servicer shall (a) with
respect to any Mortgage Loan with an
outstanding principal balance equal to or
in excess of $[2,000,000], obtain an
Appraisal, the costs of which shall be paid
by the Master Servicer as a Property
Advance or (b) with respect to any Mortgage
Loan with an outstanding principal balance
less than $[2,000,000], perform a
desktop value estimation. On the first
Distribution Date occurring on or after
the delivery of such Appraisal or desktop
value estimation, the Special Servicer
shall adjust the Appraisal Reduction Amount
to take into account such Appraisal
or desktop value estimation.
Notwithstanding the foregoing, if an Appraisal or
desktop value estimation, as applicable, is
not obtained within [120] days
following the events described in the
applicable clause of the definition
Appraisal Reduction Event (without regard
to the time periods stated therein),
then until such Appraisal or desktop value
estimation, as applicable, is
obtained the Appraisal Reduction Amount
will equal [25]% of the Stated Principal
Balance of the related Mortgage Loan;
provided that, upon receipt of an
Appraisal or desktop value estimation, as
applicable, however, the Appraisal
Reduction Amount for such Mortgage Loan
will be recalculated in accordance with
this definition without regard to this
sentence. With respect to each Mortgage
Loan as to which an Appraisal Reduction
Event has occurred (unless the Mortgage
Loan has remained current for [three]
consecutive Monthly Payments, and with
respect to which no other Appraisal
Reduction Event has occurred with respect
thereto during the preceding three months),
the Special Servicer shall, within
[30] days of
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each anniversary of such Appraisal
Reduction Event, order an update of the prior
Appraisal (the cost of which will be
covered by, and reimbursable as, a Property
Advance by the Master Servicer). In
addition, the Special Servicer shall obtain
letter updates to each Appraisal at any
time at the request of the Controlling
Class Representative, at the expense of the
Controlling Class Representative.
Based upon such Appraisal or letter updates
thereto, the Special Servicer shall
determine and report to the Trustee the
Appraisal Reduction Amount, if any, with
respect to such Mortgage Loan. The Special
Servicer shall deliver a copy of any
such Appraisal or desktop value estimation,
as applicable, to the Master
Servicer. Each Appraisal Reduction Amount
shall also be adjusted with respect to
the next Distribution Date to take into
account any subsequent Appraisal or
desktop value estimation, as applicable,
and annual letter updates, as of the
date of each such subsequent Appraisal,
desktop value estimation 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. In addition,
with respect to any Mortgage as to which
an Appraisal Reduction Event has occurred,
such Mortgage Loan shall no longer be
subject to the Appraisal Reduction Amount
if (a) such Mortgage Loan becomes and
remains current for [three] consecutive
Monthly Payments and (b) no other
Appraisal Reduction Event has occurred and
is continuing.
"Appraisal Reduction Event": With respect to any Mortgage Loan,
the
earliest of (i) the date on which a
reduction in the amount of Monthly Payments
on such Mortgage Loan, or a change in any
other material economic term of such
Mortgage Loan (other than an extension of
the Maturity Date), becomes effective
as a result of a modification of such
Mortgage Loan by the Special Servicer,
(ii) the [90]th day following the
occurrence of any uncured delinquency in
Monthly Payments or Balloon Payments with
respect to any Mortgage Loan (or the
[150]th day with respect to a Balloon
Payment for which the Mortgagor has
produced a written refinancing commitment
(within such [90] day period) pursuant
to clause (a) of the definition of
"Specially Serviced Mortgage Loan"; provided
that in the case of a delinquency in a
Balloon Payment, the Mortgagor continues
timely to make the Applicable Monthly
Payment), (iii) the date on which a
receiver is appointed and continues in such
capacity in respect of the Mortgaged
Property securing any Mortgage Loan, (iv)
the [60]th day following any
bankruptcy or similar proceedings involving
a Mortgagor and (v) the date on
which the Mortgaged Property securing any
Mortgage Loan becomes an REO Property.
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. The Master
Servicer shall also calculate, in
accordance with the related intercreditor
agreement, the Appraisal Reduction
Amount (as defined in each intercreditor
agreement) upon the occurrence of an
Appraisal Reduction Event (as defined in
each intercreditor agreement) with
respect to each of the [__________] Loan
Pair, the [__________] Loan Pair and
the [__________] Loan Pair.
"Appraised Value": As of any date of determination, the
appraised
value of a Mortgaged Property based upon
the most recent Appraisal obtained
pursuant to this Agreement.
"ARD Loan": Any Mortgage Loan which contains a
hyper-amortization
feature pursuant to which, after an
Anticipated Repayment Date, any principal
outstanding on such date accrues interest
at the Revised Rate rather than at the
Initial Rate.
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<PAGE>
"Asset Status Report": As defined in Section 3.27(i).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of
leases, rents and profits or similar
agreement executed by the Mortgagor,
assigning to the mortgagee all of the
income, rents and profits derived from the
ownership, operation, leasing or
disposition of all or a portion of such
Mortgaged Property, in the form which
was duly executed, acknowledged and
delivered, as amended, modified, renewed or
extended through the date hereof and from
time to time hereafter.
"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 Mortgagor
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": With respect to any Distribution Date, an
amount
equal to the sum of (without
duplication):
(a) the aggregate amount relating to the Trust Fund on deposit
in
the
Collection Account and the Lower-Tier Distribution Account as of
the
close of
business on the Business Day prior to the Master Servicer
Remittance
Date, exclusive of (without duplication):
(i) all Monthly Payments and Balloon Payments paid by the
Mortgagors that are due on a Due Date (without regard to grace
periods) after the related Collection Period (without regard to
grace periods);
(ii) all unscheduled payments of principal (including
Principal Prepayments (together with any related payments of
interest allocable to the period following the Due Date for the
related Mortgage Loan during the related Collection Period)),
Liquidation Proceeds, Insurance Proceeds or condemnation awards
and
other unscheduled recoveries received subsequent to the related
Determination Date;
(iii) all amounts payable or reimbursable to any Person from
the Collection Account pursuant to clauses (ii) through (ix),
inclusive, of Section 3.06(a);
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<PAGE>
(iv) Excess Interest and Default Interest;
(v) all Yield Maintenance Charges;
(vi) all amounts deposited in the Collection Account or the
Lower-Tier Distribution Account, as the case may be, in error;
(vii) with respect to the Mortgage Loans for which Withheld
Amounts are required to be deposited in the Interest Reserve
Account, and any Distribution Date relating to each Interest
Accrual
Period ending in (1) each January or (2) any December in a year
immediately preceding a year which is not a leap year, an
amount
equal to one day of interest on the Stated Principal Balance of
such
Mortgage Loan as of the Due Date in the month preceding the month
in
which such Distribution Date occurs at the related Mortgage Rate
to
the extent such amounts are to be deposited in the Interest
Reserve
Account and held for future distribution pursuant to Section
3.25;
and
(viii) amounts required to be deposited to the Companion
Distribution Account pursuant to Section 3.05(a);
(b) if and to the extent not already included in clause (a)
hereof,
the
aggregate amount transferred from any REO Account to the
Collection
Account
for such Distribution Date pursuant to Section 3.17;
(c) the aggregate amount of any Compensating Interest Payments
and
P&I
Advances made by the Master Servicer or the Trustee, as
applicable,
for such
Distribution Date (net of the related Trustee Fee with respect
to
the
Mortgage Loans for which such P&I Advances are made); and
(d) for the Distribution Date occurring in each March, the
Withheld
Amounts
remitted to the Lower-Tier Distribution Account pursuant to
Section
3.25.
Notwithstanding the investment of funds
held in the Collection Account pursuant
to Section 3.07, for purposes of
calculating the Available Distribution Amount,
the amounts so invested shall be deemed to
remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification
provides for an amortization schedule
extending beyond its Maturity Date, unless
such extension results solely from
the accrual of interest on the basis of the
actual number of days elapsed in a
year of 360 days, notwithstanding
calculation of Monthly Payments based on a
360-day year consisting of twelve 30-day
months.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of
any date of determination, the amount
outstanding on the Maturity Date of such
Mortgage Loan in excess of the related
Monthly Payment.
"Base Interest Fraction": With respect to any Principal
Prepayment
on any Mortgage Loan and with respect to
any Class of Certificates (other than
the Residual
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<PAGE>
Certificates) is a fraction (a) whose
numerator is the amount, if any, by which
(i) the Pass-Through Rate on such Class of
Certificates exceeds (ii) the
discount rate used in accordance with the
related Loan Documents in calculating
the Yield Maintenance Charge with respect
to such Principal Prepayment (or, if
the Yield Maintenance Charge is a fixed
percentage of the principal balance of
the related Mortgage Loan, the yield rate
applicable to any related yield
maintenance charge) and (b) whose
denominator is the amount, if any, by which
(i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used
in accordance with the related Loan
Documents in calculating the Yield
Maintenance Charge with respect to such
Principal Prepayment (or, if the Yield
Maintenance Charge is a fixed percentage of
the principal balance of the related
Mortgage Loan, the yield rate applicable to
any related yield maintenance charge
otherwise described in the related Loan
Documents); provided, however, that
under no circumstances shall the Base
Interest Fraction be greater than one. If
such discount rate is greater than or equal
to the lesser of (x) the Mortgage
Rate on the related Mortgage Loan and (y)
the Pass-Through Rate described in the
preceding sentence, then the Base Interest
Fraction shall equal zero.
"Beneficial Owner": With respect to a Global Certificate, the
Person
who is the beneficial owner of such
Certificate as reflected on the books of the
Depository or on the books of a Person
maintaining an account with such
Depository (directly as a Depository
Participant or indirectly through a
Depository Participant, in accordance with
the rules of such Depository). Each
of the Trustee and the Master Servicer
shall have the right to require, as a
condition to acknowledging the status of
any Person as a Beneficial Owner under
this Agreement, that such Person provide
evidence at its expense of its status
as a Beneficial Owner hereunder.
"Bloomberg": As defined in Section 4.02(a).
"Breach": As defined in Section 2.03(a).
"Broker Strip Amount": With respect to the Broker Strip Loan,
the
portion of the Servicing Fee equal to the
per annum rate set forth as the
"strip" on Schedule II of the Stated
Principal Balance of the Broker Strip Loan,
calculated for the same number of days and
on the same basis as the Servicing
Fee.
"Broker Strip Loan": The Mortgage Loans identified on Schedule
II.
"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.
"Certificate": Any [Class A-1], [Class A-2], [Class A-3],
[Class
X-1], [Class X-2], [Class B], [Class C],
[Class D], [Class E], [Class F], [Class
G], [Class H], [Class J], [Class K], [Class
L], [Class M], [Class N], [Class O],
[Class P], [Class S] and [Class R] or
[Class LR] Certificate issued,
authenticated and delivered hereunder.
"Certificate Custodian": Initially, ______________________;
thereafter, any other Certificate Custodian
acceptable to the Depository and
selected by the Trustee.
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<PAGE>
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of
determination, a fraction, expressed as a
decimal carried to eight places, the
numerator of which is the then related
Certificate Principal Amount or the
Notional Amount, as the case may be, and the
denominator of which is the related initial
Certificate Principal Amount or the
initial Notional Amount, as the case may
be.
"Certificate Principal Amount": With respect to any Class of
Certificates (other than the [Class X],
]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. With respect to any
Class of Lower-Tier Regular Interest, the
Certificate Principal Amount of its
Corresponding Certificate.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed
pursuant to Section 5.02.
"Certificateholder": With respect to any Certificate, the
Person
whose name is registered in the Certificate
Register; provided, however, that,
except to the extent provided in the next
proviso, solely for the purpose of
giving any consent or taking any action
pursuant to this Agreement, any
Certificate beneficially owned by the
Depositor, the Master Servicer, the
Special Servicer, the Trustee, a manager of
a Mortgaged Property, a Mortgagor or
any Person known to a Responsible Officer
of the Certificate Registrar to be an
Affiliate of the Depositor, the Trustee,
the Master Servicer or the Special
Servicer, shall be deemed not to be
outstanding and the Voting Rights to which
it is entitled shall not be taken into
account in determining whether the
requisite percentage of Voting Rights
necessary to effect any such consent or
take any such action has been obtained;
provided, however, that (i) for purposes
of obtaining the consent of
Certificateholders to an amendment of this
Agreement, any Certificates beneficially
owned by the Master Servicer or the
Special Servicer or an Affiliate of the
Master Servicer or the Special Servicer
shall be deemed to be outstanding,
provided, that such amendment does not relate
to compensation of the Master Servicer or
the Special Servicer, or otherwise
benefit the Master Servicer or the Special
Servicer (in its capacity as such) or
any Affiliate thereof (other than solely in
its capacity as Certificateholder)
in any material respect, in which case such
Certificate shall be deemed not to
be outstanding; and (ii) for purposes of
obtaining the consent of
Certificateholders to any action proposed
to be taken by the Special Servicer
with respect to a Specially Serviced
Mortgage Loan, any Certificates
beneficially owned by the Master Servicer
or an Affiliate thereof shall be
deemed to be outstanding, provided that the
Special Servicer is not the Master
Servicer. For purposes of obtaining the
consent of Certificateholders to any
action with respect to a particular
Mortgage Loan proposed to be taken by the
Master Servicer or Special Servicer, any
Certificates beneficially owned by the
Affiliates of the related Mortgagor, 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
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<PAGE>
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 Depositor, the Master
Servicer, the Special Servicer, the
Trustee, the Paying 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.
"Certification": As defined in Section 3.20(b).
"Class": With respect to the Certificates, all of the
Certificates
bearing the same alphabetical and numerical
class designation, and with respect
to the Lower-Tier Regular Interests, each
interest bearing the applicable
alphabetical and numerical designation set
forth in the Preliminary Statement
hereto.
"[Class A] Certificates": The [Class A-1] Certificates, the
[Class
A-2], and [Class A-3] Certificates.
"[Class A-1] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-1] hereto.
"[Class A-1] Pass-Through Rate": A per annum rate equal to
________%.
"[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] Pass-Through Rate": A per annum rate equal to
________%.
"[Class A-3] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-4] hereto.
"[Class A-3] Pass-Through Rate": A per annum rate equal to
________%.
"[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-7] hereto.
"[Class B] Pass-Through Rate": A per annum rate equal to
________%.
"[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-8] hereto.
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<PAGE>
"[Class C] Pass-Through Rate": A per annum rate equal to
________%.
"[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-9] hereto.
"[Class D] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to _________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class E] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-10]
hereto.
"[Class E] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to _________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class F] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-11]
hereto.
"[Class F] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to _________%, and thereafter, the
lesser of such per annum rate and 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-12]
hereto.
"[Class G] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to _________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class H] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-13]
hereto.
"[Class H] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class J] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-14]
hereto.
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<PAGE>
"[Class J] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class K] Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent in substantially the
form set forth in [Exhibit A-15]
hereto.
"[Class K] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class L] 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-16]
hereto.
"[Class L] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to __________%, and thereafter, the
lesser of such per annum rate and 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-23] hereto. The [Class LR]
Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional
Amount.
"[Class M] 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-17]
hereto.
"[Class M] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class N] 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-18]
hereto.
"[Class N] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class O] 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-19]
hereto.
"[Class O] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
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"[Class P] 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-20]
hereto.
"[Class P] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to _______%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class S] 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-21]
hereto.
"[Class S] Pass-Through Rate": With respect to the initial
Distribution Date, a per annum rate equal
to ________%, and thereafter, the
lesser of such per annum rate and the WAC
Rate.
"[Class R] Certificate": Any Certificate executed and
authenticated
by the Trustee or the Authenticating Agent
in substantially the form set forth
in [Exhibit A-22] hereto. The [Class R]
Certificates have no Pass-Through Rate,
Certificate Principal Amount or Notional
Amount.
"[Class X] Certificates": The [Class X-1] and [Class X-2]
Certificates.
"[Class X-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-3] hereto.
"[Class X-1] Notional Amount": With respect to the [Class X-1]
Certificates and any date of determination,
the sum of the then Component
Notional Amounts of all of the
Components.
"[Class X-1] Pass-Through Rate": For the initial Distribution
Date,
_________% per annum, and for any
subsequent Distribution Date, the weighted
average of [Class X-1] Strip Rates for the
Components for such Distribution Date
(weighted on the basis of the respective
Component Notional Amounts of such
Components outstanding immediately prior to
such Distribution Date).
"[Class X-1] Strip Rate": With respect to any Class of
Components
(other than the [Class X-2] Components) for
any Distribution Date, a rate per
annum equal to (i) the WAC Rate for such
Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding
Certificates. With respect to the [Class
X-2] Components (i) for any Distribution
Date occurring on or before the related
[Class X-2] Component Crossover Date, (x)
the WAC Rate for such Distribution
Date minus (y) the sum of the Pass-Through
Rate for the Corresponding
Certificates for such Distribution Date and
the [Class X-2] Strip Rate for such
Component for such Distribution Date, and
(ii) for any Distribution Date
occurring after the related [Class X-2]
Component Crossover Date, a rate per
annum equal to (x) the WAC Rate for such
Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding
Certificates (provided that in no event
shall any [Class X-1] Strip Rate be less
than zero).
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<PAGE>
"[Class X-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-4] hereto.
"[Class X-2] Component Crossover Date": (i) With respect to
Component [IO-A-1-2], the Distribution Date
occurring in _________, (ii) with
respect to Component [IO-A-1-3], Component
[IO-J-1] and Component [IO-K], the
Distribution Date occurring in _________,
(iii) with respect to Component
[IO-A-2-1], Component [IO-G-1], Component
[IO-H] and Component [IO-J-2], the
Distribution Date occurring in _________,
(iv) with respect to Component
[IO-A-2-3], Component [IO-F-1] and
Component [IO-G-2], the Distribution Date
occurring in _________, (v) with respect to
Component [IO-A-2-4], Component
[IO-E-1] and Component [IO-F-2], the
Distribution Date occurring in _________,
(vi) with respect to Component [IO-A-2-2],
Component [IO-D-1] and Component
[IO-E-2], the Distribution Date in
_________, (vii) with respect to Component
[IO-D-2], the Distribution Date occurring
in _________, (viii) with respect to
Component [IO-A-3-1], Component [IO-C-1]
and Component [IO-D-3], the
Distribution Date in _________ and (ix)
with respect to Component [IO-A-3-2],
Component [IO-B] and Component [IO-C-2],
the Distribution Date occurring in
_________.
"[Class X-2] Components": Each of Component [IO-A-1-2],
Component
[IO-A-1-3], Component [IO-A-2-1], Component
[IO-A-2-2], Component [IO-A-2-3],
Component [IO-A-2-4], Component [IO-A-3-1],
Component [IO-A-3-2], Component
[IO-B], Component [IO-C-1], Component
[IO-C-2], Component [IO-D-1], Component
[IO-D-2], Component [IO-D-3], Component
[IO-E-1], Component [IO-E-2], Component
[IO-F-1], Component [IO-F-2], Component
[IO-G-1], Component [IO-G-2], Component
[IO-H], Component [IO-J-1], Component
[IO-J-2] and Component [IO-K].
"[Class X-2] Notional Amount": As of any date of determination,
the
sum of the then Component Notional Amounts
of the [Class X-2] Components.
"[Class X-2] Pass-Through Rate": For the initial Distribution
Date,
________% per annum, and for any subsequent
Distribution Date, the weighted
average of the [Class X-2] Strip Rates for
the respective [Class X-2] Components
for such Distribution Date (weighted on the
basis of the respective Component
Notional Amounts of such Components
outstanding immediately prior to such
Distribution Date).
"[Class X-2] Strip Rate": With respect to each of the [Class
X-2]
Components for any Distribution Date, a
rate per annum equal to (i) for any
Distribution Date occurring on or before
the related [Class X-2] Component
Crossover Date, (x) the lesser of (1) the
rate per annum corresponding to such
Distribution Date as set forth on Schedule
III attached hereto and (2) the WAC
Rate for such Distribution Date, less (y)
the Pass-Through Rate in effect on
such Distribution Date for the
Corresponding Certificate (provided that in no
event shall any [Class X-2] Strip Rate be
less than zero), and (ii) for any
Distribution Date occurring after the
related [Class X-2] Component Crossover
Date, 0% per annum.
"[Clearstream": Clearstream Banking, societe anonyme, and its
successors in interest.]
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<PAGE>
"Closing Date": __________, 20__.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a
successor thereto. If neither such
association nor any successor remains in
existence, "CMSA" shall be deemed to
refer to such other association or
organization as may exist whose principal
membership consists of servicers, trustees,
certificateholders, issuers,
placement agents and underwriters generally
involved in the commercial mortgage
loan securitization industry, which is the
principal such association or
organization in the commercial mortgage
loan securitization industry and whose
principal purpose is the establishment of
industry standards for reporting
transaction-specific information relating
to commercial mortgage pass-through
certificates and commercial mortgage-backed
bonds and the commercial mortgage
loans and foreclosed properties underlying
or backing them to investors holding
or owning such certificates or bonds, and
any successor to such other
association or organization. If an
organization or association described in one
of the preceding sentences of this
definition does not exist, "CMSA" shall be
deemed to refer to such other association
or organization as shall be selected
by the Master Servicer and reasonably
acceptable to the Trustee, the Special
Servicer and the majority Certificateholder
of the Controlling Class.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"Bond Level File" available as of the
Closing Date on the CMSA Website, or no
later than 60 days after its adoption, such
other form for the presentation of
such information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"CMSA Collateral Summary File" available as
of the Closing Date on the CMSA , or
no later than 90 days after its adoption,
such other form for the presentation
of such information and containing such
additional information as may from time
to time be recommended by the CMSA for
commercial mortgage securities
transactions generally.
"CMSA Comparative Financial Status Report": A report
substantially
in the form of, and containing the
information called for in, the downloadable
form of the "Comparative Financial Status
Report" available as of the Closing
Date on the CMSA Website, or no later than
90 days after its adoption, such
other form for the presentation of such
information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA Delinquent Loan Status Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA
Website, or no later than 90 days after its
adoption, such other form for the
presentation of such information and
containing such additional information as
may from time to time be recommended by the
CMSA for commercial mortgage
securities transactions generally.
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<PAGE>
"CMSA Financial File": A report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "CMSA
Financial File" available as of the Closing
Date on the CMSA Website, or no
later than 90 days after its adoption, such
other form for the presentation of
such information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA Historical Liquidation Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Historical Liquidation Report"
available as of the Closing Date on the CMSA
Website, or no later than 90 days after its
adoption, such other form for the
presentation of such information and
containing such additional information as
may from time to time be recommended by the
CMSA for commercial mortgage
securities transactions generally.
"CMSA Historical Loan Modification Report": A report
substantially
in the form of, and containing the
information called for in, the downloadable
form of the "Historical Loan Modification
Report" available as of the Closing
Date on the CMSA Website, or no later than
90 days after its adoption, such
other form for the presentation of such
information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File": The monthly report
substantially
in the form of, and containing the
information called for in, the downloadable
form of the "CMSA Loan Periodic Update
File" available as of the Closing Date on
the CMSA Website, or no later than 90 days
after its adoption, such other form
for the presentation of such information
and containing such additional
information as may from time to time be
recommended by the CMSA for commercial
mortgage securities transactions
generally.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "CMSA
Loan Setup File" available as of the
Closing Date on the CMSA Website, or no
later than 60 days after its adoption, such
other form for the presentation of
such information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of
the Closing Date on the CMSA Website,
or no later than 60 days after its
adoption, such other form for the
presentation of such information and
containing such additional information as
may from time to time be recommended by the
CMSA for commercial mortgage
securities transactions generally.
"CMSA Operating Statement Analysis Report": A report
substantially
in the form of, and contain the information
called for in, the downloadable form
of the "Operating Statement Analysis
Report" available as of the Closing Date on
the CMSA Website, or no later than 90 days
after its adoption, such other form
for the presentation of such information
and
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<PAGE>
containing such additional information as
may from time to time be recommended
by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Property File": The monthly report substantially in the
form
of, and containing the information called
for, in the downloadable form of the
"CMSA Property File" available as of the
Closing Date on the CMSA Website, or no
later than 90 days after its adoption, such
other form for the presentation of
such information and containing such
additional information as may from time to
time be recommended by the CMSA for
commercial mortgage securities transactions
generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "REO
Status Report" available as of the Closing
Date on the CMSA Website, or no later
than 90 days after its adoption, such other
form for the presentation of such
information and containing such additional
information as may from time to time
be recommended by the CMSA for commercial
mortgage securities transactions
generally.
"CMSA Servicer Watch List": For any Determination Date, a
report
substantially in the form of, and
containing the information called for in, the
downloadable form of the "Servicer Watch
List" available as of the Closing Date
on the CMSA Website, or no later than 90
days after its adoption, such other
form for the presentation of such
information and containing such additional
information as may from time to time be
recommended by the CMSA for commercial
mortgage securities transactions
generally.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may
establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended from time
to
time, any successor statute thereto, and
any temporary or final regulations of
the United States Department of the
Treasury promulgated pursuant thereto.
"Collection Account": The account or accounts created and
maintained
by the Master Servicer pursuant to Section
3.05(a), which shall be entitled
"[_________________________] as Master
Servicer in trust for
[________________________]., as Trustee, in
trust for Holders of GS Mortgage
Securities Corporation II, Commercial
Mortgage Pass-Through Certificates, Series
20__-__ and Companion Holders Collection
Account" and which must be an Eligible
Account.
"Collection Period": With respect to a Distribution Date and
each
Mortgage Loan, the period beginning on the
day after the Due Date in the month
preceding the month in which such
Distribution Date occurs (or, in the case of
the Distribution Date occurring in ______
20__, beginning on the day after the
Cut-Off Date) and ending on the Due Date
(without regard to grace periods) in
the month in which such Distribution Date
occurs.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and
maintained by the Companion Paying Agent
pursuant to
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<PAGE>
Section 3.05(a) and held on behalf of the
Companion Holders, which shall be
entitled "[_________________________], as
Companion Paying Agent for the
Companion Holders of the Companion Loans
relating to the GS Mortgage Securities
Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 20__-__."
The Companion Distribution Account shall
not be an asset of the Trust Fund, but
instead shall be held by the Companion
Paying Agent on behalf of the applicable
Companion Holder. Any such account shall be
an Eligible Account.
"Companion Holder": With respect to any Companion Loan, the owner
of
the Note representing such Companion Loan.
As of the Closing Date, the Companion
Holders of the Companion Loans are
________________________ with respect to the
___________ AB Mortgage Loan, the
___________ AB Mortgage Loan and the
___________ AB Mortgage Loan and
___________ with respect to the ___________ AB
Mortgage Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Master Servicer in its role as
Companion Paying Agent appointed pursuant
to Section 3.28.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.29.
"Compensating Interest Payments": Any payment required to be made
by
the Master Servicer pursuant to Section
3.13 to cover Prepayment Interest
Shortfalls.
"Component": Each of Component [IO-A-1-1], Component
[IO-A-1-2],
Component [IO-A-1-3], Component [IO-A-2-1],
Component [IO-A-2-2], Component
[IO-A-2-3], Component [IO-A-2-4], Component
[IO-A-3-1], Component [IO-A-3-2],
Component [IO-B], Component [IO-C-1],
Component [IO-C-2], Component [IO-D-1],
Component [IO-D-2], Component [IO-D-3],
Component [IO-E-1], Component [IO-E-2],
Component [IO-F-1], Component [IO-F-2],
Component [IO-G-1], Component [IO-G-2],
Component [IO-H], Component [IO-J-1],
Component [IO-J-2], Component [IO-K],
Component [IO-L], Component [IO-M],
Component [IO-N], Component [IO-O],
Component [IO-P] and Component [IO-S].
"Component [IO-A-1-1]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LA-1-1] as of
any date of determination.
"Component [IO-A-1-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-1-2] as of any date of
determination.
"Component [IO-A-1-3]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-1-3] as of any date of
determination.
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<PAGE>
"Component [IO-A-2-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-2-1] as of any date of
determination.
"Component [IO-A-2-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-2-2] as of any date of
determination.
"Component [IO-A-2-3]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-2-3] as of any date of
determination.
"Component [IO-A-2-4]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-2-4] as of any date of
determination.
"Component [IO-A-3-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-3-1] as of any date of
determination.
"Component [IO-A-3-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LA-3-2] as of any date of
determination.
"Component [IO-B]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LB] as of any date of determination.
"Component [IO-C-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LC-1] as of any date of
determination.
"Component [IO-C-2]": One of __ components of the [Class X-1]
Certificates and one of __- components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LC-2] as of any date of
determination.
"Component [IO-D-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount
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<PAGE>
equal to the then current the Lower-Tier
Principal Balance of the Lower-Tier
Regular Interest [LD-1] as of any date of
determination.
"Component [IO-D-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LD-2] as of any date of
determination.
"Component [IO-D-3]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LD-3] as of any date of
determination.
"Component [IO-E-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LE-1] as of any date of
determination.
"Component [IO-E-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LE-2] as of any date of
determination.
"Component [IO-F-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LF-1] as of any date of
determination.
"Component [IO-F-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LF-2] as of any date of
determination.
"Component [IO-G-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LG-1] as of any date of
determination.
"Component [IO-G-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LG-2] as of any date of
determination.
"Component [IO-H]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LH] as of any date of determination.
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<PAGE>
"Component [IO-J-1]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LJ-1] as of any date of
determination.
"Component [IO-J-2]": One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LJ-2] as of any date of
determination.
"Component [IO-K]" One of __ components of the [Class X-1]
Certificates and one of __ components of
the [Class X-2] Certificates having a
Component Notional Amount equal to the then
current the Lower-Tier Principal
Balance of the Lower-Tier Regular Interest
[LK] as of any date of determination.
"Component [IO-L]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LL] as of any
date of determination.
"Component [IO-M]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LM] as of any
date of determination.
"Component [IO-N]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LN] as of any
date of determination.
"Component [IO-O]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LO] as of any
date of determination.
"Component [IO-P]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LP] as of any
date of determination.
"Component [IO-S]": One of __ components of the [Class X-1]
Certificates having a Component Notional
Amount equal to the then current the
Lower-Tier Principal Balance of the
Lower-Tier Regular Interest [LS] as of any
date of determination.
"Component Notional Amount": With respect to each Component and
any
date of determination, an amount equal to
the then the Lower-Tier Principal
Balance of its Corresponding Lower-Tier
Regular Interest.
"Controlling Certificateholder": Each Holder (or Beneficial
Owner,
if applicable) of a Certificate of the
Controlling Class as certified to the
Trustee from time to time by such Holder or
Beneficial Owner.
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<PAGE>
"Controlling Class": As of any time of determination, the Class
of
Certificates outstanding representing the
most subordinate Certificates (other
than the [Class R] or [Class LR]
Certificates) that equals at least [25]% of its
initial Certificate Principal Amount (or if
no Class of Certificates has a
Certificate Principal Amount of at least
[25]% of its initial Certificate
Principal Amount, the most subordinate
Class of Certificates outstanding other
than the [Class R] and [Class LR]
Certificates).
"Controlling Class Representative": The Controlling
Certificateholder or other representative
selected by a majority of the
Controlling Certificateholders by
Certificate Principal Amount, as certified by
the Trustee from time to time; provided,
that, (i) absent such selection, or
(ii) until a Controlling Class
Representative is so selected, or (iii) upon
receipt of notice from a majority of the
Controlling Certificateholders, by
Certificate Principal Amount, that a
Controlling Class Representative is no
longer so designated, the Controlling
Certificateholder which owns the largest
aggregate Certificate Principal Amount of
the Controlling Class shall be the
Controlling Class Representative. The
initial Controlling Class Representative
on the Closing Date shall be Allied Capital
Corporation.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has
ceased to be such in accordance with
the definition of "Specially Serviced
Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of
such Mortgage Loan or a related
Mortgaged Property becoming an REO
Property).
"Corresponding Certificate": As identified in the Preliminary
Statement with respect to any Corresponding
Component or any Corresponding
Lower-Tier Regular Interest.
"Corresponding Component": As identified in the Preliminary
Statement with respect to any Corresponding
Certificate or any Corresponding
Lower-Tier Regular Interest.
"Corresponding Lower-Tier Regular Interest": As identified in
the
Preliminary Statement with respect to any
Class of Corresponding Certificates or
any Component of the [Class X]
Certificates.
"Corporate Trust Office": The principal office of the Trustee
located at (i) with respect to all matters
other than certificate transfers,
________________, _______, _______ _______,
Attention: ______________ GSMSC II
20__-__, telecopy number (___) ___-____ and
(ii) with respect to certificate
transfers, __________________, __________,
________ ______ or the principal
trust office of any successor trustee
qualified and appointed pursuant to
Section 8.08.
"Cross-over Date": The Distribution Date on which the
Certificate
Principal Amount of each Class of
Certificates entitled to distributions of
principal (other than the [Class A]
Certificates) has been reduced to zero due
to the application of Realized Losses.
"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.
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"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 Depositor or
any Affiliate thereof.
"Cut-Off Date": _______, 20__.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan,
the outstanding principal balance of such
Mortgage Loan as of the Cut-off Date,
after application of all payments of
principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan
and
Loan Pair for any specified period, the
debt service coverage ratio calculated
in accordance with the applicable Servicer
Report using the methodologies set
forth in [Exhibit H].
"Default Interest": With respect to any Mortgage Loan or
Companion
Loan, all interest accrued in respect of
such Mortgage Loan or Companion Loan
during such Collection Period provided for
in the related Note or Mortgage as a
result of a default (exclusive of late
payment charges) that is in excess of
interest at the related Mortgage Rate
accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan
outstanding from time to time.
"Defeasance Loan": Those Mortgage Loans which provide the
related
Mortgagor with the option to defease the
related Mortgaged Property.
"Deleted Mortgage Loan": A Mortgage Loan which is repurchased
from
the Trust pursuant to the terms hereof or
as to which one or more Qualifying
Substitute Mortgage Loans are
substituted.
"Delinquency Advance Date": The Business Day preceding each
Distribution Date.
"Denomination": As defined in Section 5.01.
"Depositor": GS Mortgage Securities Corporation II, a Delaware
corporation, and its successors and
assigns.
"Depository": The Depository Trust Company or a successor
appointed
by the Certificate Registrar (which
appointment shall be at the direction of the
Depositor if the Depositor 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.
"Designated Sub-Servicer": Any Sub-Servicer set forth on the
Additional Servicing Fee Schedule and any
successor thereto under the related
Designated Sub-Servicer Agreement.
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"Designated Sub-Servicer Agreement": With respect to any
Additional
Servicing Fee Mortgage Loan, the agreement
among the Master Servicer, the
applicable Designated Sub-Servicer and
______________ pursuant to which the
Designated Sub-Servicer agrees to service
the Additional Servicing Fee Mortgage
Loans.
"Determination Date": With respect to any Distribution Date,
the
first day of the calendar month in which
such Distribution Date occurs, or if
such day is not a Business Day, the
following Business Day.
"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 at least 10% of the construction
of such building or improvement was
completed before default became imminent),
other than through an Independent
Contractor; provided, however, that the
Special Servicer, on behalf of the Trust
Fund, shall not be considered to
Directly Operate an REO Property solely
because the Special Servicer, on behalf
of the Trust Fund, establishes rental
terms, chooses tenants, enters into or
renews leases, deals with taxes and
insurance, or makes decisions as to repairs
or capital expenditures with respect to
such REO Property or takes other actions
consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Non-U.S. Person": With respect to a [Class R] or
[Class LR] Certificate, any Non-U.S. Person
or agent thereof other than (i) a
Non-U.S. Person that holds the [Class R] or
[Class LR] Certificate in connection
with the conduct of a trade or business
within the United States and has
furnished the transferor and the
Certificate Registrar with an effective IRS
Form W-8ECI 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
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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 [__]th day of each month (or, if such
[__]th day is not a Business Day, the next
succeeding Business Day), commencing
in __________.
"Document Defect": As defined in Section 2.02(d).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Maturity Date, the day of the month set
forth in the related Note on which each
Monthly Payment thereon is scheduled to be
first due, (ii) any Mortgage Loan
after the Maturity Date therefor, the day
of the month set forth in the related
Note on which each Monthly Payment on such
Mortgage Loan or Companion Loan had
been scheduled to be first due, and (iii)
any REO Mortgage Loan, the day of the
month set forth in the related Note on
which each Monthly Payment on the related
Mortgage Loan had been scheduled to be
first due.
"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, the Excess
Liquidation Proceeds Reserve Account and
Escrow Account, the long-term unsecured
debt obligations (or short-term
unsecured debt obligations if the account
holds funds for less than 30 days) of
which are rated at least "___" by ___ and
___ or, if applicable, the short-term
rating equivalent thereof, which is at
least "___" by _______), or (B) as to
which the Master Servicer, the Special
Servicer or the Trustee, as applicable,
has received written confirmation from each
of the Rating Agencies that holding
funds in such account would not cause any
Rating Agency to qualify, withdraw or
downgrade any of its ratings on the
Certificates or (ii) a segregated trust
account (or sub-accounts of a single
account in the case of the Excess Interest
Distribution Account, Excess Liquidation
Proceeds Reserve Account, Interest
Reserve Account, Lower-Tier Distribution
Account and the Upper-Tier Distribution
Account) or accounts maintained with a
federal or state chartered depository
institution or trust company acting in its
fiduciary capacity which, in the case
of a state chartered depository institution
or trust company is subject to
regulations substantially similar to 12
C.F.R. ss.9.10(b), 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. Eligible Accounts may bear
interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer
that
is purchasing for its own account or for
the account of a Qualified
Institutional Buyer to whom notice is
given
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that the offer, sale or transfer is being
made in reliance on Rule 144A, (ii) an
Institutional Accredited Investor or (iii)
a Regulation S Investor.
"Environmental Assessment": A "Phase I assessment" conducted in
accordance with ASTM Standard E 1527-93 or
any successor thereto published by
ASTM.
"Environmental Insurance Policy": The Secured Creditor Impaired
Property Policy issued by [American
International Specialty Lines Insurance
Company] on or before the Closing Date with
respect to each Environmental Policy
Loan, and any successor policy relating to
any Mortgaged Property securing an
Environmental Policy Loan.
"Environmental Policy Loan": The Mortgage Loan listed as Loan
Number
_________ on the Mortgage Loan
Schedule.
"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 Mortgagor to the
Master
Servicer pursuant to the related Mortgage,
Lock-Box Agreement or Loan Agreement
for the account of such Mortgagor for
application toward the payment of taxes,
insurance premiums, assessments, ground
rents, mandated improvements and similar
items in respect of the related Mortgaged
Property.
["Euroclear": Euroclear Bank, societe anonyme, and its successors
in
interest.]
"Event of Default": As defined in Section 7.01.
"Excess Interest": With respect to each ARD Loan, interest
accrued
on such Mortgage Loan at the related Excess
Rate plus interest thereon to the
extent permitted by applicable law at the
related Revised Rate. The Excess
Interest shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
subaccount created and maintained by the
Trustee pursuant to Section 3.05(d),
which shall be entitled
"___________________, as Trustee, in trust for Holders
of GS Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through
Certificates, Series 20__-__, 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 Liquidation Proceeds": With respect to any Mortgage
Loan,
the excess of (i) Liquidation Proceeds of
that Mortgage Loan or related REO
Property net of any related
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Liquidation Expenses, over (ii) the amount
that would have been received if a
Principal Payment in full had been made
with respect to such Mortgage Loan on
the Due Date immediately following the date
on which such proceeds were
received.
"Excess Liquidation Proceeds Reserve Account": The trust account
or
subaccount created and maintained by the
Trustee pursuant to Section 3.05(c) in
trust for the Certificateholders, which
shall be entitled "___________________,
as Trustee, in trust for the registered
holders of GS Mortgage Securities
Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 20__-__ --
Excess Liquidation Proceeds Reserve
Account." Any such account shall be an
Eligible Account.
"Excess Prepayment Interest Shortfall": With respect to any
Distribution Date, the aggregate amount, if
any, by which the Prepayment
Interest Shortfall with respect to all
Principal Prepayments received during the
related Prepayment Period exceeds the
Compensating Interest Payment.
"Excess Rate": With respect to each ARD Loan, the excess of the
related Revised Rate over the related
Initial Rate, each as set forth in the
Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Fannie Mae": The Federal National Mortgage Association, and
its
successors in interest.
"FDIC": The Federal Deposit Insurance Corporation, and its
successors in interest.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan (or portion of a defaulted
Mortgage Loan with respect to the
_______ AB Mortgage Loan) that is a
Specially Serviced Mortgage Loan (and, if
applicable, any defaulted Companion Loan)
or REO Property (other than a Mortgage
Loan or REO Property, as the case may be,
that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6
of the applicable Loan Sale
Agreement, the Controlling Class Option
Holder pursuant to Section 3.18(b) or
the Master Servicer, Special Servicer, the
Holders of the Controlling Class, or
the Holders of the [Class LR] Certificates
pursuant to Section 9.01, or the
Companion Holder or the holder of a
mezzanine loan pursuant to the related
intercreditor agreement) that there has
been a recovery of all Insurance
Proceeds, condemnation proceeds,
Liquidation Proceeds, REO Revenue and other
payments or recoveries that, in the Special
Servicer's judgment will ultimately
be recoverable
["Fitch": Fitch Ratings, or its successor in interest.]
"Form 8-K": A Current Report on Form 8-K under the Exchange Act,
or
such successor form as the Commission may
specify from time to time.
"Form 10-K": An Annual Report in Form 10-K under the Exchange
Act,
or such successor form as the Commission
may specify from time to time.
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"Freddie Mac": The Federal Home Loan Mortgage Corporation, and
its
successors in interest.
"Global Certificates": The [Class A], [Class X], [Class B],
[Class
C], [Class D], [Class E], [Class F], [Class
G], [Class H], [Class J], [Class K],
[Class L], [Class M], [Class N], [Class O],
[Class P] and [Class S]
Certificates.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and
amounts held from time to time in the
Excess Interest Distribution Account.
"Ground Lease": The ground lease pursuant to which any
Mortgagor
holds a leasehold interest in the related
Mortgaged Property.
"_______ Loan Sale Agreement": The Mortgage Loan Purchase
Agreement,
dated as of the Cut-Off Date, by and
between _______ and the Depositor.
"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 a
Mortgage Loan Seller, the Depositor,
the Trustee, the Master Servicer, the
Special Servicer, any Mortgagor 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
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clause (i) unless an Opinion of Counsel (at
the expense of the party seeking to
be deemed an Independent Contractor)
addressed to the Master Servicer and the
Trustee has been delivered to the Trustee
to that effect) or (ii) any other
Person (including the Master Servicer and
the Special Servicer) if the Master
Servicer, on behalf of itself and the
Trustee, has received an Opinion of
Counsel (at the expense of the party
seeking to be deemed an Independent
Contractor) to the effect that the taking
of any action in respect of any REO
Property by such Person, subject to any
conditions therein specified, that is
otherwise herein contemplated to be taken
by an Independent Contractor will not
cause such REO Property to cease to qualify
as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code
(determined without regard to the
exception applicable for purposes of
Section 860D(a) of the Code) or cause any
income realized in respect of such REO
Property to fail to qualify as Rents from
Real Property (provided that such income
would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered form without interest
coupons.
"Initial Rate": With respect to an ARD Loan, the Mortgage Rate
at
which interest accrues on such ARD Loan
until its Anticipated Repayment Date.
"Initial Resolution Period": As defined in Section 2.03(a).
"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,
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. With
respect to any Distribution Date and
the [Class X-1] or [X-2] Certificates, an
amount equal to the sum of the Accrued
Component Interest for the related Interest
Accrual Period for all of the
respective Components for such Class for
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, 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).
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"Interest
Reserve Account": The trust account or subaccount created
and maintained by the Trustee pursuant to
Section 3.25, which shall be entitled
"_____________, as Trustee, in trust for
Holders of GS Mortgage Securities
Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 20__-__,
Interest Reserve Account" and which shall
be an Eligible Account.
"Interest Shortfall": With respect to any Distribution Date for
any
Class of Regular Certificates, the sum of
(a) the portion, of the Interest
Distribution Amount for such Class
remaining unpaid as of the close of business
on the 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 that amount remaining
unpaid 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 that amount remaining
unpaid at the WAC Rate for such
Distribution Date.
"Interested Person": As of any date of determination, the
Depositor,
the Master Servicer, the Special Servicer,
the Trustee, any Mortgage Loan
Seller, any Mortgagor, 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 Grade Certificate": As of any date of determination,
a
Certificate that is rated in one of the
four highest generic rating categories
by at least one Rating Agency.
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"Investor Certification": A certification in the form of
[Exhibit
O-1] hereto.
"IRS": The Internal Revenue Service.
"Liquidation Event": With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is
paid in full; (ii) a Final Recovery
Determination is made with respect to such
Mortgage Loan; (iii) such Mortgage
Loan (or portion thereof with respect to
the _____ AB Mortgage Loan) is
repurchased by the applicable Mortgage Loan
Seller pursuant to Section 6 of the
related Loan Sale Agreement (unless the
applicable Mortgage Loan Seller does not
repurchase such Mortgage Loan until after
more than 180 days following its
receipt of notice of a Material Breach);
(iv) such Mortgage Loan is purchased by
the Controlling Class Option Holder
pursuant to Section 3.18(b); (v) such
Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the
Holders of the Controlling Class, the
Remaining Certificateholder or the Holders
of the [Class LR] Certificates pursuant to
Section 9.01; (vi) such Mortgage Loan
is purchased by the Companion Holder or the
holder of a mezzanine loan pursuant
to the related intercreditor agreement or
(vii) the taking of a Mortgaged
Property (or portion thereof) by exercise
of the power of eminent domain or
condemnation. With respect to any REO
Property (and the related REO Mortgage
Loan), any of the following events: (i) a
Final Recovery Determination is made
with respect to such REO Property; (ii)
such REO Property is purchased by the
Master Servicer, the Special Servicer, the
Holders of the Controlling Class or
the Holders of the [Class LR] Certificates
pursuant to Section 9.01; (iii) the
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taking of a REO Property (or portion
thereof) by exercise of the power of
eminent domain or condemnation or (iv) such
REO Property is purchased by the
Companion Holder or the holder of a
mezzanine loan pursuant to the related
intercreditor agreements.
"Liquidation Expenses": Expenses incurred by the Master
Servicer,
the Special Servicer and the Trustee in
connection with the liquidation of any
Mortgage Loan or property acquired in
respect thereof or final payoff of a
Corrected Mortgage Loan (including, without
limitation, legal fees and expenses,
committee or referee fees, and, if
applicable, brokerage commissions, and
conveyance taxes associated with such
Mortgage Loan or Mortgaged Property) and
any Property Protection Expenses incurred
with respect to such Mortgage Loan or
such property including interest on the
related Property Advances at the Advance
Rate not previously reimbursed from
collections or other proceeds therefrom.
"Liquidation Fee": With respect to any Mortgage Loan or REO
Property
which is sold or transferred or otherwise
liquidated, an amount equal to the
product of the Principal Recovery
Percentage multiplied by an amount equal to
(a) the Liquidation Proceeds of such
Mortgage Loan or REO Property (other than
(a) any such proceeds specified in (1)
clause (vii) of the first sentence of the
definition of Liquidation Event or (2)
clause (iii) of the second sentence of
the definition of Liquidation Event or (b)
amounts for which a Workout Fee has
been paid, or will be payable) minus (b)
any broker's commission and related
brokerage referral fees; provided, however,
that the Liquidation Fee with
respect to any Mortgage Loan or Mortgaged
Property purchased or repurchased
pursuant to clauses (iii) through (vi) of
the first sentence of the definition
of Liquidation Event or clauses (ii) or
(iv) of the second sentence of such
definition shall be zero.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds)
received in connection with a Liquidation
Event.
"Loan Agreement": With respect to any Mortgage Loan, the loan
agreement, if any, between the related
Originator and the Mortgagor, pursuant to
which such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the
documents
executed or delivered in connection with
the origination of such Mortgage Loan,
or subsequently added to the related
Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number
by
which such Mortgage Loan was identified on
the books and records of the
Depositor or any sub-servicer for the
Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Loan Sale Agreement": The _____ Loan Sale Agreement or the
________
Loan Sale Agreement.
"Loan-to-Value Ratio": With respect to any Mortgage Loan or
Loan
Pair, as of any date of determination, the
fraction, expressed as a percentage,
the numerator of which is the
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then unpaid principal balance of such
Mortgage Loan or Loan Pair, and the
denominator of which is the Appraised Value
of the related Mortgaged Property as
determined by an Appraisal thereof.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to
any documents relating to a Mortgage
Loan to receive rental or other income
generated by the Mortgaged Property. Any
Lock-Box Account shall be beneficially
owned for federal income tax purposes by
the Person who is entitled to receive the
reinvestment income or gain thereon in
accordance with the terms and provisions of
the related Mortgage Loan and
Section 3.07, which Person shall be taxed
on all reinvestment income or gain
thereon.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box or other similar agreement, if
any, between the related Originator (or
with respect to the _______ AB Mortgage
Loan, _______, _______ and the holder of
the related Companion Loan) and the
Mortgagor, pursuant to which the related
Lock-Box Account, if any, may have been
established.
"Lock-out Period": With respect to any Mortgage Loan, the period
of
time specified in the related Loan
Documents during which voluntary prepayments
by the related Mortgagor are
prohibited.
"Lower-Tier Distribution Account": The account or accounts
created
and maintained as a separate account (or
separate sub-account within the same
account as the Upper-Tier Distribution
Account) or accounts by the Trustee
pursuant to Section 3.05(b), which shall be
entitled "________________________,
as Trustee, in trust for Holders of GS
Mortgage Securities Corporation II,
Commercial Mortgage Pass-Through
Certificates, Series 20__-__, Lower-Tier
Distribution Account" and which must be an
Eligible Account.
"Lower-Tier Regular Interests": The [LA-1-1], [Class LA-1-2],
[Class
LA-1-3], [Class LA-2-1], [Class LA-2-2],
[Class LA-2-3], [Class LA-2-4], [Class
LA-3-1], [Class LA-3-2], [Class LB], [Class
LC-1], [Class LC-2], [Class LD-1],
[Class LD-2], [Class LD-3], [Class LE-1],
[Class LE-2], [Class LF-1], [Class
LF-2], [Class LG-1], [Class LG-2], [Class
LH], [Class LJ-1], [Class LJ-2],
[Class LK], [Class LL], [Class LM], [Class
LN], [Class LO], [Class LP] and
[Class LS] Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust
Fund
consisting of the Mortgage Loans (exclusive
of 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, the Excess Liquidation
Proceeds Reserve Account and the
Lower-Tier Distribution Account.
"Lower-Tier Principal Balance": The principal amount of any
Lower-Tier Regular Interest outstanding as
of any date of determination. As of
the Closing Date, the Lower-Tier Principal
Balance of each Lower-Tier Regular
Interest shall equal the Original
Lower-Tier Principal Balance as set forth in
the Preliminary Statement hereto. On each
Distribution Date, the Lower-Tier
Principal Balance of each Lower-Tier
Regular Interest shall be permanently
reduced by all distributions of principal
deemed to have been made in respect of
such Lower-Tier Regular Interest on such
Distribution Date pursuant to Section
4.01(a), and shall be further permanently
reduced on such Distribution Date by
all Realized Losses and Additional
Trust
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Fund Expenses deemed to have been allocated
thereto on such Distribution Date
pursuant to Section 4.04(a).
"MAI": Member of the Appraisal Institute.
"Manager": With respect to any Mortgage Loan, any property
manager
for the related Mortgaged Properties.
"Master Servicer": ________ 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 Servicing Standard": For so long as
_____________________ is Master Servicer
hereunder, with respect to the Master
Servicer shall mean the servicing of the
Mortgage Loans and the related
Companion Loans, as a collective whole (as
determined by the Master Servicer in
its good faith and reasonable judgment), in
accordance with applicable law, the
terms of this Agreement, the related
intercreditor agreements and the terms of
the respective Mortgage Loans and, to the
extent consistent with the foregoing,
further as follows: (i) with the same care,
skill and diligence as is normal and
usual in its general mortgage servicing and
real estate owned property
management activities on behalf of third
parties or on behalf of itself,
whichever is higher, with respect to
mortgage loans and real estate owned
properties that are comparable to those for
which it is responsible under this
Agreement and (ii) with a view to the
timely collection of all scheduled
payments of principal and interest under
the Mortgage Loans, but without regard
to: (a) any relationship that the Master
Servicer or any of its Affiliates, may
have with the related Mortgagor, (b) the
ownership of any Certificate, Companion
Loan or mezzanine loan by the Master
Servicer or by any of its Affiliates, (c)
the Master Servicer's obligation to make
Advances and (d) the right of the
Master Servicer (or any Affiliate) to
receive reimbursement of costs, or the
sufficiency of any compensation payable to
it, under this Agreement or with
respect to any particular transaction. At
any time that _____________________ is
not the Master Servicer hereunder, the
Master Servicer Servicing Standards shall
mean with respect to the Master Servicer
the servicing of the Mortgage Loans and
the related Companion Loans, as a
collective whole for which it is responsible
in accordance with applicable law, the
terms of this Agreement and the Loan
Documents and, if applicable, the related
intercreditor agreements and, to the
extent consistent with the foregoing, in
accordance with the higher of the
following standards of care: (1) the same
manner in which, and with the same
care, skill, prudence and diligence with
which the Master Servicer services and
administers similar mortgage loans for
other third-party portfolios giving due
consideration to customary and usual
standards of practice of prudent
institutional commercial, multifamily and
manufactured housing community
mortgage lenders servicing their own loans,
and (2) the same care, skill,
prudence and diligence with which the
Master Servicer services and administers
similar commercial, multifamily and
manufactured housing community mortgage
loans owned by the Master Servicer, but
without regard to: (A) any relationship
that the Master Servicer, or any of its
Affiliates may have with the related
Mortgagor or any Affiliate thereof, any
Mortgage Loan
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Seller or any other party to this
Agreement; (B) the ownership of any
Certificate, Companion Loan or mezzanine
loan by the Master Servicer or any of
its Affiliates; (C) the Master Servicer's
right to receive compensation for its
services under this Agreement or with
respect to any particular transaction; (D)
the ownership, servicing or management for
others of any other mortgage loans or
mortgaged properties by the Master
Servicer; and (E) any debt that the Master
Servicer or any of its Affiliates has
extended to any Mortgagor or any of its
affiliates.
"Material Breach": A Breach that materially and adversely
affects
the value of a Mortgage Loan, the related
Mortgaged Property or the interests of
the Trust Fund therein or of any
Certificateholder.
"Material Document Defect": A Document Defect that materially
and
adversely affects the value of a Mortgage
Loan, the related Mortgaged Property
or the interests of the Trust Fund therein
or of any Certificateholder;
provided, however, that the absence of, or
a material and adverse irregularity
on the face of, any of the following
documents shall be presumed to be Material
Document Defects: the original Note (or a
lost note affidavit and indemnity), an
original or executed copy of the Mortgage,
an original or copy of the required
lender's title insurance policy (or in lieu
thereof a marked-up title commitment
marked as binding and countersigned by the
title company or its authorized
agent), the original or copy of any related
letters of credit or a copy of any
related Ground Lease from the Mortgage
File.
"Maturity Date": With respect to each Mortgage Loan, the
maturity
date as set forth on the Mortgage Loan
Schedule.
"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 Mortgagor on such Due Date under
the related Note or Notes. The Monthly
Payment with respect to (i) an REO Mortgage
Loan, or (ii) any Mortgage Loan
which is delinquent at its respective
Maturity Date and with respect to which
the Special Servicer does not enter into an
extension, is the monthly payment
that would otherwise have been payable on
the related Due Date had the related
Note not been discharged or the related
Maturity Date had not been reached, as
the case may be, determined as set forth in
the preceding sentence and on the
assumption that all other amounts, if any,
due thereunder are paid when due.
"Mortgage": The mortgage, deed of trust or other instrument
creating
a first lien on or first priority ownership
interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(b), collectively the following
documents:
(1) the original Note, endorsed by the most recent endorsee prior
to
the
Trustee or, if none, by the originator, without recourse, in blank
or
to the
order of the Trustee in the following form: "Pay to the order
of
________________, as trustee for the registered holders of GS
Mortgage
Securities
Corporation II Commercial Mortgage Pass-Through Certificates,
Series
20__-__, without recourse";
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<PAGE>
(2) the original or a copy of the Mortgage and, if applicable,
the
originals
or copies of any intervening assignments thereof showing a
complete
chain of assignment from the originator of the Mortgage Loan to
the most
recent assignee of record thereof prior to the Trustee, if any,
in each
case with evidence of recording indicated thereon;
(3) the
original of the assignment of the Mortgage, in recordable
form,
executed by the most recent assignee of record thereof prior to
the
Trustee,
or if none by the originator, either in blank or in favor of
the
Trustee
(in such capacity);
(4) an original or copy of any related Assignment of Leases,
Rents
and
Profits (if such item is a document separate from the Mortgage)
and,
if
applicable, the originals or copies of any intervening
assignments
thereof
showing a complete chain of assignment from the originator of
the
Mortgage
Loan to the most recent assignee of record thereof prior to the
Trustee,
if any, in each case with evidence of recording thereon;
(5) an original assignment of any related Assignment of Leases,
Rents and
Profits (if such item is a document separate from the
Mortgage),
in
recordable form, executed by the most recent assignee of record
thereof
prior to
the Trustee, or, if none, by the originator, either in blank or
in favor
of the Trustee (in such capacity), which assignment may be
included
as part of the corresponding Assignment of Mortgage, referred
to
in clause
(3) above;
(6) an original or a copy of any related Security Agreement (if
such
item is a
document separate from the Mortgage) and, if applicable, the
originals
or copies of any intervening assignments thereof showing a
complete
chain of assignment from the originator of the Mortgage Loan to
the most
recent assignee of record thereof prior to the Trustee, if any;
(7) an original assignment of any related Security Agreement
(if
such item
is a document separate from the Mortgage) executed by the most
recent
assignee of record thereof prior to the Trustee or, if none, by
the
originator, either in blank or in favor of the Trustee (in such
capacity),
which
assignment may be included as part of the corresponding
Assignment
of
Mortgage referred to in clause (3) above;
(8) originals or copies of all assumption, modification,
written
assurance
and substitution agreements, with evidence of recording
thereon,
where
appropriate, in those instances where the terms or provisions of
the
Mortgage,
Note or any related security document have been modified or the
Mortgage
Loan has been assumed;
(9) the original or a copy of the lender's title insurance
policy,
together
with all endorsements or riders (or copies thereof) that were
issued
with or subsequent to the issuance of such policy, insuring the
priority
of the Mortgage as a first lien on the Mortgaged Property;
(10) the original or a copy of any guaranty of the obligations
of
the Mortgagor
under the Mortgage Loan which was in the possession of the
related
Mortgage Loan Seller at the time the Mortgage Files were
delivered
to the
Trustee together with (A) if applicable, the original or copies
of
any
intervening assignments of such guaranty
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<PAGE>
showing a
complete chain of assignment from the originator of the
Mortgage
Loan to
the most recent assignee thereof prior to the Trustee, if any,
and
(B) an
original assignment of such guaranty executed by the most
recent
assignee
thereof prior to the Trustee or, if none, by the originator;
(11) (A) file or certified copies of any UCC financing
statements
and
continuation statements which were filed in order to perfect
(and
maintain
the perfection of) any security interest held by the originator
of the
Mortgage Loan (and each assignee of record prior to the Trustee)
in
and to the
personalty of the Mortgagor at the Mortgaged Property (in each
case with
evidence of filing thereon) and which were in the possession of
the
related Mortgage Loan Seller (or its agent) at the time the
Mortgage
Files were
delivered and (B) if any such security interest is perfected
and the
earlier UCC financing statements and continuation statements
were
in the
possession of the related Mortgage Loan Seller, a UCC financing
statement
executed by the most recent assignee of record prior to the
Trustee
or, if none, by the originator, evidencing the transfer of such
security
interest, either in blank or in favor of the Trustee;
(12) the original or a copy of the power of attorney (with
evidence
of
recording thereon, if appropriate) granted by the Mortgagor if
the
Mortgage,
Note or other document or instrument referred to above was not
signed by
the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) the original or a copy of any lockbox agreement or deposit
account or
similar agreement;
(15) the original or a copy of any intercreditor agreement with
respect to
the Mortgage Loan;
(16) the original or a copy of any Environmental Insurance
Policy;
(17) the original or a copy (if the original is held by the
Master
Servicer)
of any letter of credit and any related transfer documents;
(18) [Reserved]; and
(19) with respect to any Companion Loan, all of the above
documents
with
respect to such Companion Loan and the related intercreditor
agreement;
provided that a copy of each mortgage note relating to such
Companion
Loan, rather than the original, shall be provided, and no
assignments of such mortgage note shall be provided
and provided, further, that, whenever the
term "Mortgage File" is used to refer
to documents actually received by the
Trustee or a Custodian appointed thereby,
such term shall not be deemed to include
such documents and instruments required
to be included therein unless they are
actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust
Fund, the mortgage
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<PAGE>
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. As
used in this Agreement, the term
"Mortgage Loan" does not include any
Companion Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans included in
the
Trust Fund as of the Closing Date being
attached hereto as [Exhibit B], which
list shall set forth the following
information with respect to each Mortgage
Loan:
(i) the Mortgagor's name and the name of the related Mortgaged
Property;
(ii) the Monthly Payment in effect as of the Cut-Off Date;
(iii) the Mortgage Rate (separately identifying with respect to
any
ARD Loan,
the Initial Rate and the Excess Rate and the Revised Rate, if
any),
including the interest calculation convention (i.e., "30/360"
or
"actual/360") and a code indicating whether such rate is a fixed
or
adjustable
rate;
(iv) the Net Mortgage Rate in effect at the Cut-Off Date;
(v) the original principal balance;
(vi) the original term to stated maturity, remaining term to
stated
maturity,
and Maturity Date;
(vii) the original and remaining amortization terms;
(viii) the Stated Principal Balance as of the Cut-Off Date;
(ix) the loan-to-value ratio as of the Cut-Off Date;
(x) the applicable Servicing Fee Rate as of the Cut-Off Date;
(xi) the applicable Loan Number;
(xii) the number of Mortgaged Properties securing such Mortgage
Loan;
(xiii) the Anticipated Repayment Date, if any;
(xiv) the Originator (or in the case of the _________ AB Loan,
Originators); and
(xv) whether such Mortgage Loan has a letter of credit as part
of
the
related Mortgage File.
The Mortgage Loan Schedule shall also set
forth the total of the amounts
described under clauses (v) and (viii)
above for all of the Mortgage Loans.
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<PAGE>
"Mortgage Loan Seller": Each of __________ and __________, and
their
respective successors in interest.
"Mortgage Rate": With respect to any Mortgage Loan, the per
annum
rate at which interest accrues on such
Mortgage Loan as stated in the related
Note, in each case without giving effect to
the Excess Rate or the Default Rate
with respect to any Mortgage Loan.
Notwithstanding the foregoing, if any
Mortgage Loan does not accrue interest on
the basis of a 360-day year consisting
of twelve 30-day months, then, for purposes
of calculating the WAC Rate, the
Mortgage Rate of such Mortgage Loan for any
one-month period preceding a related
Due Date shall be the annualized rate at
which interest would have to accrue in
respect of such Mortgage Loan on the basis
of a 360-day year consisting of
twelve 30-day months in order to produce
the aggregate amount of interest
actually accrued in respect of such
Mortgage Loan during such one-month period
at the related Mortgage Rate; provided,
however, that with respect to each
Mortgage Loan which accrues interest on the
basis of a 360-day year and the
actual number of days, (i) the Mortgage
Rate for the one-month period preceding
the Due Dates in January and February in
any year which is not a leap year and
in February in any year which is a leap
year, shall be determined net of any
Withheld Amounts and (ii) the Mortgage Rate
for the one-month period preceding
the Due Date in March shall be determined
taking into account the addition of
any such Withheld Amounts.
"Mortgaged Property": The underlying property securing a
Mortgage
Loan, including any REO Property,
consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a
leasehold estate, or both a leasehold
estate and a fee simple estate, or a
leasehold estate in a portion of the
property and a fee simple estate in the
remainder, in a parcel of land improved
by a commercial or multifamily property,
together with any personal property,
fixtures, leases and other property or
rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including,
without
limitation, any Person that has acquired
the related Mortgaged Property and
assumed the obligations of the original
obligor under such Note.
"Mortgagor Account": As defined in Section 3.07(a).
"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 Mortgagor in
accordance with the express
requirements of the Mortgage or Note or
other Loan Documents included in the
Mortgage File or in accordance with prudent
and customary servicing practices,
or with respect to the Environmental
Insurance Policy, applied to pay any costs,
expenses, penalties, fines or similar
items.
"Net Liquidation Proceeds": The Liquidation Proceeds received
with
respect to any Mortgage Loan (including an
REO Mortgage Loan) net of the amount
of (i) Liquidation Expenses incurred with
respect thereto and, (ii) with respect
to proceeds received in connection with the
taking of a Mortgaged Property (or
portion thereof) by the power of eminent
domain in condemnation, amounts
required to be applied to the restoration
or repair of the related Mortgaged
Property.
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<PAGE>
"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
Administrative Cost Rate (adjusted if necessary
to accrue on the basis of a 360-day year
consisting of twelve 30-day months);
provided, however, that, for purposes of
calculating any Pass-Through Rate, the
Net Mortgage Rate of such Mortgage Loan
shall be determined without regard to
any modification, waiver or amendment of
the terms of such Mortgage Loan,
whether agreed to by the Special Servicer
or resulting from bankruptcy,
insolvency or any similar proceeding
involving the related Mortgagor.
"Net REO Proceeds": With respect to each REO Property and any
related REO Mortgage Loan, REO Proceeds
with respect to such REO Property or REO
Mortgage Loan (other than the proceeds of a
liquidation thereof) net of any
insurance premiums, taxes, assessments,
ground rents and other costs and
expenses permitted to be paid therefrom
pursuant to Section 3.17(b) of this
Agreement.
"New Lease": Any lease of REO Property entered into on behalf of
the
Trust Fund, including any lease renewed or
extended on behalf of the Trust Fund
if the Trust Fund has the right to
renegotiate the terms of such lease.
"Non-U.S. Person": A person other than a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed to
be
made or previously made which has not been
previously reimbursed to the Master
Servicer or the Trustee, as applicable, and
which, in the good faith business
judgment of the Master Servicer or the
Trustee, as applicable, will not or, in
the case of a proposed Advance, would not
be ultimately recoverable (together
with anticipated Advance Interest Amounts)
from late payments, Insurance
Proceeds, Liquidation Proceeds and other
collections on or in respect of the
related Mortgage Loan or Companion Loan, in
any case taking into account all
prior unreimbursed Advances and Advance
Interest Amounts. The judgment or
determination by the Master Servicer or the
Trustee that it has made a
Nonrecoverable Advance or that any proposed
Advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced
in the case of the Master Servicer, by
a certificate of a Servicing Officer
delivered to the Trustee and the Depositor,
and in the case of the Trustee, by a
certificate of a Responsible Officer of the
Trustee delivered to the Depositor, which
in each case sets forth such judgment
or determination and the procedures and
considerations of the Master Servicer
(including any information provided by the
Special Servicer) or Trustee, 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
or Trustee inquiries, third party
engineering and environmental reports, and any
Appraisal thereof conducted within the past
12 months; copies of such documents
to be included with the certificate of a
Responsible Officer). Any determination
of non-recoverability made by the Master
Servicer may be made without regard to
any value determination made by the Special
Servicer other than pursuant to an
Appraisal. In addition, upon the
determination by the Master Servicer or the
Trustee 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
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<PAGE>
until notice to the contrary is received
from the Master Servicer or the
Trustee, as the case may be.
"Note": With respect to any Mortgage Loan or Companion Loan as
of
any date of determination, the note or
other evidence of indebtedness and/or
agreements evidencing the indebtedness of a
Mortgagor under such Mortgage Loan
or Companion 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 Depositor 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-1] Certificates, a notional
principal amount equal to the [Class
X-1] Notional Amount, (b) with respect to
the [Class X-2] Certificates, a
notional principal amount equal to the
[Class X-2] Notional Amount and (c) in
the case of each Component, the amount set
forth in the applicable definition
thereof.
"Officers' Certificate": A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the
President or a Vice President
(however denominated) and by the Treasurer,
the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any
Trust Officer or other officer of the
Master Servicer or the Special Servicer, as
the case may be, customarily
performing functions similar to those
performed by any of the above designated
officers and also with respect to a
particular matter, any other officer to whom
such matter is referred because of such
officer's knowledge of and familiarity
with the particular subject, or an
authorized officer of the Depositor, and
delivered to the Depositor, the Trustee or
the Master Servicer, as the case may
be.
"Operating Statement Analysis": With respect to each Mortgage
Loan
and REO Mortgage Property, a report
substantially containing the content
described in [Exhibit Q-7] attached
hereto.
"Opinion of Counsel": A written opinion of counsel, who may,
without
limitation, be counsel for the Depositor,
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 such REMIC,
(b) compliance with the REMIC
Provisions (including application of the
definition of "Independent
Contractor"), (c) qualification of the
Grantor Trust as a grantor trust or (d) a
resignation of the Master Servicer or
Special Servicer pursuant to Section 6.04,
must be an opinion of counsel who is
Independent of the Depositor, the Special
Servicer and the Master Servicer.
"Option": As defined in Section 3.18(b).
"Option Holder": As defined in Section 3.18(b).
"Option Notice": As defined in Section 3.18(b).
"Option Purchase Price": As defined in Section 3.18(c).
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"Original [Class X-1] Notional Amount": $[____________].
"Original [Class X-2] Notional Amount": $[____________].
"Original Notional Amount": The Original [Class X-1] Notional
Amount
or the Original [Class X-2] Notional
Amount, as the context requires.
"Originator": Each of ______________, a ________ [type of
organization], _______________, a [type of
organization], and ___________.
"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 or the Trustee pursuant to
Section 4.06. Each reference to the
payment or reimbursement of a P&I
Advance shall be deemed to include, whether or
not specifically referred to but without
duplication, payment or reimbursement
of interest thereon at the Advance Rate
through the date of payment or
reimbursement.
"Pass-Through Rate": Each of the [Class A-1] Pass-Through Rate,
the
[Class A-2] Pass-Through Rate, the [Class
A-3] Pass-Through Rate, the [Class
X-1] Pass-Through Rate, the [Class X-2]
Pass-Through Rate, the [Class B]
Pass-Through Rate, the [Class C]
Pass-Through Rate, the [Class D] Pass-Through
Rate, the [Class E] Pass-Through Rate, the
[Class F] Pass-Through Rate, the
[Class G] Pass-Through Rate, the [Class H]
Pass-Through Rate, the [Class J]
Pass-Through Rate, the [Class K]
Pass-Through Rate, the [Class L] Pass-Through
Rate, the [Class M] Pass-Through Rate, the
[Class N] Pass-Through Rate, the
[Class O] Pass-Through Rate, the [Class P]
Pass-Through Rate and the [Class S]
Pass-Through Rate. The [Class R] and [Class
LR] Certificates do not have
Pass-Through Rates.
"Paying Agent": The paying agent appointed pursuant to Section
5.04.
"Penalty Charges": With respect to any Mortgage Loan (or
successor
REO Mortgage Loan), any amounts actually
collected thereon from the Mortgagor
that represent default charges, penalty
charges, late fees and Default Interest.
"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 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 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 (provided that funds invested by
the Trustee in Permitted Investments
managed or advised by the Trustee may
mature on the Distribution Date) and a
maximum maturity of 365 days, regardless of
whether issued by the Depositor, the
Master Servicer, the Trustee or any of
their respective Affiliates and having at
all
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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:
(a) 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;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government
sponsored
agencies:
Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit
System (consolidated system-wide bonds and notes), the Federal
Home
Loan Banks
(consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing
Association
(debt
obligations maturing prior to __________________), 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;
(d) federal funds, unsecured certificates of deposit, time or
similar
deposits, bankers' acceptances and repurchase agreements of any
bank, the
short term obligations of which are rated in the highest short
term
rating category by each Rating Agency (or, if not rated by _____
or
_____,
otherwise acceptable to ____ or ____, 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
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proportionately with that index, and (C) such investments must not
be
subject to
liquidation prior to their maturity;
(e) 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 _____ or _____, otherwise acceptable to _____ or _____,
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;
(f) debt obligations rated by each Rating Agency (or, if not
rated
by _____
or _____, otherwise acceptable to _____ or _____, 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;
(g) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations payable on demand or
on a
specified
date not more than one year after the date of issuance thereof)
that is
rated by each Rating Agency (or, if not rated by _____ or
_____,
otherwise
acceptable to _____ or _____, 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;
(h) the Federated Prime Obligation Money Market Fund (the "Fund")
so
long as
the Fund is rated by each Rating Agency in its highest money
market
fund ratings category (or, if not rated by _____ or _____,
otherwise
acceptable to _____ or _____, 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
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<PAGE>
(i) any other demand, money market or time deposit, demand
obligation
or any other obligation, security or investment, provided that
each
Rating Agency has confirmed in writing to the Master Servicer,
Special
Servicer or Trustee, as applicable, that such investment would
not, in
and of itself, result in a downgrade, qualification or
withdrawal
of the
then current ratings assigned to the Certificates;
provided, however, that, in the judgment of
the Master Servicer, such instrument
continues to qualify as a "cash flow
investment" pursuant to Code Section
860G(a)(6) earning a passive return in the
nature of interest and that no
instrument or security shall be a Permitted
Investment if (i) such instrument or
security evidences a right to receive only
interest payments, (ii) the right to
receive principal and interest payments
derived from the underlying investment
provides a yield to maturity in excess of
[120]% of the yield to maturity at par
of such underlying investment or (iii) the
rating for such instrument or
security includes an "r" designation.
Notwithstanding the foregoing, to the extent that the Loan
Documents
with respect to a particular Mortgage Loan
require the funds in the related
Mortgagor Accounts to be invested in
investments other than those itemized in
clauses (a) through (i) above, the Master
Servicer shall invest the funds in
such Mortgagor Accounts in accordance with
the terms of the related Loan
Documents.
"Permitted Transferee": With respect to a [Class R] or [Class
LR]
Certificate, any Person that is a Qualified
Institutional Buyer other than (a) a
Disqualified Organization, (b) any other
Person so designated by the Certificate
Registrar based upon an Opinion of Counsel
(provided at the expense of such
Person or the Person requesting the
Transfer) to the effect that the Transfer of
an Ownership Interest in any [Class R] or
[Class LR] Certificate to such Person
may cause the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC
at any time that the Certificates are
outstanding, (c) a Person that is a
Disqualified Non-U.S. Person, (d) a Person
that is a U.S. Person with respect to
whom income on a [Class R] or [Class LR]
Certificate is attributable to a
foreign permanent establishment or fixed
base, within the meaning of an
applicable income tax treaty, of such
person or any other U.S. Person and (e) a
Plan or any Person investing the assets of
a Plan.
"Person": Any individual, corporation, limited liability
company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Plan": As defined in
Section 5.02(k).
"Post Default Balloon Period" With respect to any Balloon
Mortgage
Loan shall mean the period [30] days after
the default in the Balloon Payment (a
"Balloon Default) if the Controlling Class
Representative consents to such [30]
day period, provided further, the Post
Default Balloon Period may be extended by
the Special Servicer up to an additional
[60] days (up to a total of [90] days
after the Balloon Default) with the consent
of the Controlling Class
Representative if (a) the Mortgagor
continues to make its Applicable Monthly
Payment and within the initial [30] days
after the Balloon Default delivers a
statement that it is diligently pursuing
refinancing, (b) no other Servicing
Transfer Event shall have occurred with
respect to such Mortgage Loan and (c)
within [90] days after the Balloon Default
the Mortgagor delivers a
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<PAGE>
binding financing commitment reasonably
acceptable to the Special Servicer and
the Controlling Class Representative and
provided further, the Special Servicer,
with the consent of the Controlling Class
Representative once an acceptable
binding financing commitment has been
received within such [90] day period, may
extend the Post-Default Balloon Period for
a period not to exceed [120] days
after the Balloon Default.
"Post-Determination Date Payment Report": A report prepared by
the
Master Servicer showing all payments
received after the Determination Date which
are included in Available Funds for such
Distribution Date. The Master Servicer
shall provide a copy of such report to the
Trustee no later than the Business
Day preceding each Master Servicer
Remittance Date.
"Prepayment Assumption": The assumption that there will be zero
prepayments with respect to the Mortgage
Loans, other than the ARD Loans, which
are assumed to prepay in full on their
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Distribution
Date,
for each Mortgage Loan that was subject to
a Principal Prepayment in full or in
part during any Prepayment Period, which
Principal Prepayment was applied to
such Mortgage Loan after the Due Date in
such Prepayment Period, the amount of
interest that accrued for such Mortgage
Loan on the amount of such Principal
Prepayment during the period commencing on
the date after such Due Date and
ending on the date as of which such
Principal Prepayment was applied to the
unpaid principal balance of the Mortgage
Loan, inclusive, to the extent
collected from the related Mortgagor.
"Prepayment Interest Shortfall": With respect to any
Distribution
Date, for each Mortgage Loan that was
subject to a Principal Prepayment in full
or in part during any Prepayment Period,
which Principal Prepayment was applied
to such Mortgage Loan prior to the Due Date
in such Prepayment Period, the
amount of interest, to the extent not
collected from the related Mortgagor, that
would have accrued on such Mortgage Loan on
the amount of such Principal
Prepayment during the period commencing on
the date as of which such Principal
Prepayment was applied to the unpaid
principal balance of the Mortgage Loan and
ending on the day immediately preceding
such Due Date, inclusive.
"Prepayment Period": With respect to any Distribution Date, the
period beginning the day after the
Determination Date in the month immediately
preceding the month in which such
Distribution Date occurs (or on the Cut-Off
Date, in the case of the first Distribution
Date) through and including the
Determination Date immediately preceding
such Distribution Date.
"Principal Distribution Amount": For any Distribution Date will
be
equal to the sum, without duplication,
of:
(A) the principal component of all scheduled Monthly
Payments which became due on the related Due Date (if
received, or advanced by the Master Servicer or the Trustee,
in respect of such Distribution Date) with respect to the
Mortgage Loans;
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<PAGE>
(B) the principal component of any payment on any
Mortgage Loan received or applied on or after the date on
which such payment was due on deposit in the Collection
Account as of the related Determination Date, net of the
principal portion of any unreimbursed P&I Advances related
to
such Mortgage Loan;
(C) the Unscheduled Payments of any Mortgage Loan on
deposit in the Collection Account as of the related
Determination Date, net of the principal portion of any
unreimbursed P&I Advances related to such Mortgage Loan;
and
(D) 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
Mortgagor
on a Mortgage Loan which is received in
advance of its scheduled Due Date and
which is not accompanied by an amount of
interest representing the full amount
of scheduled interest due on any date or
dates in any month or months subsequent
to the month of prepayment other than any
amount paid in connection with the
release of the related Mortgaged Property
through defeasance.
"Principal Recovery Percentage": With respect to any Specially
Serviced Mortgage Loan, [1.00]%.
"Principal Shortfall": For any Distribution Date, the amount,
if
any, by which (i) the Principal
Distribution Amount for the preceding
Distribution Date exceeds (ii) the
aggregate amount actually distributed with
respect to principal on one or more Classes
of Certificates on such preceding
Distribution Date in respect of such
Principal Distribution Amount.
"Private Certificate" Each of the [Class X], [Class D], [Class
E],
[Class F], [Class G], [Class H], [Class J],
[Class K], [Class L], [Class M],
[Class N], [Class O], [Class P] and [Class
S] Certificates.
"Private Global Certificate": Each of the Regulation S Global
Certificate or Rule 144A Global Certificate
with respect to the Private
Certificates so long as any such Class of
Certificates is registered in the name
of a nominee of the Depository.
"Privileged Person": The Depositor, the Master Servicer, the
Special
Servicer, the Trustee, a Rating Agency, a
designee of the Depositor, any
Companion Holder and any Person who
provides the Trustee with an Investor
Certification.
"Property Advance": As to any Mortgage Loan, any advance made by
the
Master Servicer or the Trustee 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
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the payment or reimbursement of a Property
Advance shall be deemed to include,
whether or not specifically referred to,
payment or reimbursement of interest
thereon at the Advance Rate from and
including the date of the making of such
Advance through and including the date of
payment or reimbursement.
"Property Protection Expenses": Any costs and expenses incurred
by
the Master Servicer, the Special Servicer
or the Trustee pursuant to Sections
3.04, 3.08, 3.10(f), 3.10(g), 3.10(i) and
3.17(b) or indicated herein as being a
cost or expense of the Lower-Tier REMIC (in
respect of the Mortgage Loans), in
each case to be advanced by the Master
Servicer or the Trustee, as applicable.
"Public Global Certificate": Each of the [Class A-1], [Class
A-2],
[Class A-3], [Class B] and [Class C]
Certificates so long as any such Class of
Certificates is registered in the name of a
nominee of the Depository.
"Purchase Price": With respect to any Mortgage Loan, a price
equal
to the following: (a) the outstanding
principal balance of such Mortgage Loan as
of the date of purchase; plus (b) all
accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate
in effect from time to time to but
not including the Due Date in the
Collection Period of purchase; plus (c) all
related unreimbursed Property Advances or
P&I Advances; plus (d) all accrued and
unpaid Advance Interest Amounts in respect
of related Advances; plus (e) if such
Mortgage Loan is being purchased by a
Mortgage Loan Seller pursuant to Section 6
of the related Loan Sale Agreement (i) all
expenses incurred or to be incurred
by the Master Servicer, the Special
Servicer, the Depositor and the Trustee in
respect of the Breach or Document Defect
giving rise to the repurchase
obligation and (ii) the aggregate amount of
all Special Servicing Fees, Advance
Interest Amounts (to the extent, if any,
not included in clause (d) above) in
respect of related Advances and Additional
Trust Fund Expenses incurred prior to
such date of purchase and, in each case, in
respect of the related Mortgage Loan
and, if the applicable Mortgage Loan Seller
repurchases such Mortgage Loan after
more than [180] days following its receipt
of notice of a Material Breach, the
applicable Mortgage Loan Seller will also
be required to pay a [1]% Liquidation
Fee. With respect to any REO Property, the
amount calculated in accordance with
the first sentence of this definition in
respect of the related REO Mortgage
Loan. With respect to the ____________ AB
Mortgage Loan, the Purchase Price for
each Mortgage Loan Seller will be its
respective percentage of the total
Purchase Price for the ____________ AB
Mortgage Loan. The percentage interests
with respect to the ____________ AB
Mortgage Loan for each Mortgage Loan Seller
shall be, with respect to ____________, 60%
and with respect to ____________,
40%.
"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, an insurance company
or security or bonding company qualified to
write the related insurance policy
in the relevant jurisdiction and whose
claims paying ability is rated in one of
the three highest applicable rating
categories by each Rating Agency and (ii) in
the case of the fidelity bond and the
errors and omissions insurance required to
be maintained pursuant to Section 3.08(c),
a company that shall have a claim
paying
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ability rated by each Rating Agency no
lower than two ratings categories
(without regard to pluses or minuses) lower
than the highest rating of any
outstanding Class of Certificates from time
to time, but in no event lower than
"_____" by _____ and _____ (or, if not
rated by _____, at least "_____" by
____________), unless such insurance
company is not rated by one or more Rating
Agencies or has a claims paying ability
rated by one or more Rating Agencies in
a rating category lower than required
herein, in which case either (a) such
insurer's obligations are guaranteed or
backed (in writing with respect to each
insurance policy other than the fidelity
bond and the errors and omissions
policy to be maintained by the Master
Servicer pursuant to Section 3.08(c)) 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 Section
1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any
substantially similar successor
provision).
"Qualifying Substitute Mortgage Loan": In the case of a Deleted
Mortgage Loan, a mortgage loan which, on
the date of substitution, (i) has a
principal balance, after deduction of the
principal portion of the Monthly
Payment due in the month of substitution,
not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii)
is accruing interest at a rate of
interest at least equal to that of the
Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate; (iv) is accruing interest on
the same basis (for example, a
360-day year consisting of twelve 30-day
months) as the Deleted Mortgage Loan;
(v) has a remaining term to stated maturity
or Anticipated Repayment Date, in
the case of any ARD Loan, not greater than,
and not more than two years less
than, that of the Deleted Mortgage Loan;
(vi) has an original Loan-to-Value
Ratio not higher than that of the Deleted
Mortgage Loan and a current
Loan-to-Value Ratio (equal to the principal
balance on the date of substitution
divided by its Appraised Value as
determined by an Appraisal dated not more than
twelve months prior to the date of
substitution) not higher than the then
current Loan-to-Value Ratio of the Deleted
Mortgage Loan; (vii) will comply with
all of the representations and warranties
relating to Mortgage Loans set forth
in the related Loan Sale Agreement, as of
the date of substitution; (viii) has
an Environmental Assessment relating to the
related Mortgaged Property in its
Servicing File; (ix) has a Debt Service
Coverage Ratio equal to or greater than
that of the Deleted Mortgage Loan; (x) has
been approved by the Controlling
Class Representative (and the applicable
Mortgage Loan Seller shall pay the
reasonable expenses of the due diligence
(including reasonable legal fees)
incurred by the Controlling Class
Representative in reviewing any proposed
Qualifying Substitute Mortgage Loan); and
(xi) as to which the Trustee has
received an Opinion of Counsel, at the
related Mortgage Loan Seller's expense,
that such Qualifying Substitute Mortgage
Loan is a "qualified replacement
mortgage" within the meaning of Section
860G(a)(4) of the Code; provided that no
Qualifying Substitute Mortgage Loan may
have a Maturity Date after the date
three years after the Maturity Date of the
Deleted Loan, and provided, further,
that no such Qualifying Substitute Mortgage
Loan shall be substituted for a
Deleted Mortgage Loan unless Rating Agency
Confirmation is obtained. In the
event that either one mortgage loan is
substituted for more than one Deleted
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Mortgage Loan or more than one mortgage
loan is substituted for one or more
Deleted Mortgage Loans, then (a) the
principal balance referred to in clause (i)
above shall be determined on the basis of
aggregate principal balances and (b)
the remaining term to stated maturity
referred to in clause (v) above shall be
determined on a weighted average basis.
Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this
Agreement, the party effecting such
substitution shall certify that such
Mortgage Loan meets all of the requirements
of this definition and shall send
such certification to the Trustee. In the
event that the __________ AB Mortgage
Loan is a Deleted Mortgage Loan, each
Mortgage Loan Seller may substitute a
Qualifying Substitute Mortgage Loan which
meets the above described requirements
based on the terms of the Note such
Mortgage Loan Seller sold to the Depositor.
"Rated Final Distribution Date": The Distribution Date occurring
in
________ 20__.
"Rating Agency": Any of _____ or _____. References herein to
the
highest long-term unsecured debt rating
category of ____ and shall mean "_____"
with respect to ____ and "______" with
respect to ______, 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 Confirmation": With respect to any matter and
any
Rating Agency, where required under this
Agreement, confirmation in writing by
such Rating Agency that a proposed action,
failure to act, or other event
specified herein will not in and of itself
result in the withdrawal, downgrade
or qualification of the rating assigned by
such Rating Agency to any Class of
Certificates then rated by such Rating
Agency. For all purposes of this
Agreement, the placement by a Rating Agency
of any Class of Certificates on
"negative credit watch" shall constitute a
qualification of such Rating Agency's
rating of such Certificates.
"Rating Agency Monitoring Fee": The annual monitoring and
surveillance fees charged by the Rating
Agencies. The Depositor shall pay, from
its own funds, the annual monitoring and
surveillance fees for the Rating
Agencies.
"Real Property": Land or improvements thereon such as buildings
or
other inherently permanent structures
thereon (including items that are
structural components of the buildings or
structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the
amount,
if any, by which (A) the aggregate
Certificate Principal Amount of the
Certificates, after giving effect to
distributions on such Distribution Date
exceeds (B) the aggregate Stated Principal
Balance of the Mortgage Loans after
giving effect to any payments of principal
received or advanced with respect to
the Due Date occurring immediately prior to
such Distribution Date.
"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.
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"Regular Certificates": The [Class A], [Class B], [Class C],
[Class
D], [Class E], [Class F], [Class G], [Class
H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P],
[Class S] and [Class X]
Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificates": As defined in Section 5.01.
"Regulation S Investor": With respect to a transferee of a
Regulation S Global Certificate, a
transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially
in
the form of [Exhibit I-1] or [Exhibit I-2]
hereto, as applicable.
"Remaining Certificateholder": Any Holder (or Holders provided
they
act in unanimity) holding 100% of the
Private Certificates or an assignment of
the voting rights thereof; provided,
however, that the Certificate Balances of
the [Class A], [Class B] and [Class C]
Certificates have been reduced to zero.
"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:
(1) 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);
(2) 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;
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(3) any amount received or accrued, directly or
indirectly, with respect to such REO Property if any
Person Directly Operates such REO Property;
(4) 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
(5) rent attributable to personal property unless
such personal property is leased under, or in connection
with, the lease of such REO Property and, for any
taxable year of the Trust Fund, such rent is no greater
than [15] percent of the total rent received or accrued
under, or in connection with, the lease.
"REO Account": A segregated custodial account or accounts
created
and maintained by the Special Servicer
pursuant to Section 3.17 on behalf of the
Trustee in trust for the
Certificateholders, which shall be entitled
"______________, or the applicable
successor Special Servicer, as Special
Servicer, for the benefit of
____________________, as trustee, in trust for
registered Holders of GS Mortgage
Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 2__-__,
REO Account and, if applicable, the
holders of the related Companion Loans."
Any such account or accounts shall be
an Eligible Account.
"REO Acquisition": The acquisition for federal income tax
purposes,
of any REO Property pursuant to Section
3.10.
"REO Extension": As defined in Section 3.17.
"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.
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage
Loan
that is substituted for one or more Deleted
Mortgage Loans.
"Request for Release": A request for a release signed by a
Servicing
Officer, substantially in the form of
[Exhibit E] hereto.
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"Reserve Accounts": A segregated custodial account or accounts
created and maintained by the Trustee or
the Master Servicer pursuant to Section
2.02(e) on behalf of the Trustee in trust
for the Certificateholders, which
shall be entitled "____________________, as
Master Servicer, in trust for the
registered holders of GS Mortgage
Securities Corporation II Commercial Mortgage
Pass-Through Certificates, Series 20__-__."
Any such account shall be an
Eligible Account.
["Residual Certificates": The Class R and Class LR
Certificates.]
"Resolution Extension Period": With respect any Mortgage Loan
and
any Material Document Defect or Material
Breach which would require the related
Mortgage Loan Seller to cure, repurchase or
substitute for such Mortgage Loan
(or the related Mortgage Loan Seller's
portion thereof with respect to the
____________ AB Mortgage Loan) pursuant to
the terms of the related Loan Sale
Agreement:
(a) with respect to a Material Breach or a Material Document
Defect
relating
to any Mortgage Loan, the [ninety (90)] day period following
the
end of the
applicable Initial Resolution Period;
(b) with respect to a Material Document Defect relating to any
Mortgage
Loan that is not a Specially Serviced Mortgage Loan at any time
during the
applicable Initial Resolution Period, the period commencing at
the end of
the applicable Initial Resolution Period and ending on, and
including,
the earlier of: (i) the [90]th day following the end of such
Initial
Resolution Period and (ii) the [45]th day following the
applicable
Mortgage
Loan Seller's receipt of written notice from the Master
Servicer
or the
Special Servicer of the occurrence of any Servicing Transfer
Event
with
respect to such Mortgage Loan subsequent to the end of such
Initial
Resolution
Period;
(c) with respect to a Material Document Defect relating to any
Mortgage
Loan that is not a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period but is
subject to
a
Servicing Transfer Event during such Initial Resolution Period,
the
period
commencing at the end of the applicable Initial Resolution
Period
and ending
on, and including, the [90]th day following the applicable
Mortgage
Loan Seller's receipt of written notice from the Master
Servicer
or the
Special Servicer of the occurrence of such Servicing Transfer
Event;
and
(d) with respect to a Material Document Defect relating to any
Mortgage
Loan that is a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, [thirty
(30)]
days,
provided that, if the applicable Mortgage Loan Seller did not
receive
written notice from the Master Servicer or the Special Servicer
of
the
relevant Servicing Transfer Event as of the commencement of the
applicable
Initial Resolution Period, then such Servicing Transfer Event
will be
deemed to have occurred during such Initial Resolution Period
and
clause
(iii) of this definition will be deemed to apply.
"Responsible Officer": Any officer of the Corporate Trust
Services
Group of the Trustee (and, in the event
that the Trustee is the Certificate
Registrar or the Paying Agent, of the
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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, as such
list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation
S
commencing on the later of (a) the date
upon which the Certificates are first
offered to persons other than the
Underwriters and any other distributor (as
defined in Regulation S) of the
Certificates, and (b) the Closing Date.
"Revised Rate": With respect to any ARD Loan, the revised
Mortgage
Rate on each such ARD Loan (in the absence
of a default), as set forth on the
Mortgage Loan Schedule.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificates": As defined in Section 5.01.
["S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its
successor in interest.]
"Security
Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent
instrument, whether contained in the related
Mortgage or executed separately, creating
in favor of the holder of such
Mortgage a security interest in the
personal property constituting security for
repayment of such Mortgage Loan.
"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.
"Sequential Pay Certificates": The [Class A], [Class B], [Class
C],
[Class D], [Class E], [Class F], [Class G],
[Class H], [Class J], [Class K],
[Class L], [Class M], [Class N], [Class O],
[Class P] and [Class S]
Certificates, collectively.
"Servicer Reports": The CMSA Delinquent Loan Status Report, the
CMSA
Historical Loan Modification Report, the
CMSA Historical Liquidation Report, the
CMSA REO Status Report, the CMSA Servicer
Watch List, the CMSA NOI Adjustment
Worksheet, the CMSA Comparative Financial
Status Report and the CMSA Operating
Statement Analysis Report.
"Servicing Fee": With respect to each Mortgage Loan and
Companion
Loan and for any Distribution Date, an
amount equal to the product of 1/12 times
the Servicing Fee Rate and the Stated
Principal Balance of such Mortgage Loan or
Companion Loan, calculated in the same
manner as interest payable on such
Mortgage Loan; provided, that in connection
with any
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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.
"Servicing Fee Rate": With respect to each Mortgage Loan, the
per
annum rate set forth on the Mortgage Loan
Schedule.
"Servicing File": Any documents (including copies of the
documents
required to be part of the related Mortgage
File), including but not limited to
appraisals, environmental reports,
engineering reports, legal opinions, the
applicable Mortgage Loan Seller's asset
summary and original underwriting,
delivered to the Master Servicer or the
Special Servicer and relating to the
origination and servicing of any Mortgage
Loan; provided that no information
that is proprietary to the related Mortgage
Loan Seller shall be required to be
delivered as part of the Servicing
File.
"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 Standards" With respect to the Master Servicer, the
Master Servicer Servicing Standard and with
respect to the Special Servicer, the
Special Servicer Servicing Standard.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the
occurrence of any of the events described
in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage
Loan." If any Companion Loan becomes
a Specially Serviced Mortgage Loan, the
corresponding AB Mortgage Loan shall
also become a Specially Serviced Mortgage
Loan. If any AB Mortgage Loan becomes
a Specially Serviced Mortgage Loan, the
corresponding Companion Loan shall
become a Specially Serviced Mortgage
Loan.
"Special Servicer": ______________ or its successor in interest,
or
any successor Special Servicer appointed as
provided herein.
"Special Servicer Event of Default": As defined in Section
7.01(b).
"Special Servicer Servicing Standard": With respect to the
Special
Servicer shall mean the servicing of the
Mortgage Loans and the related
Companion Loans, as a collective whole for
which it is responsible in accordance
with applicable law, the terms of this
Agreement and the Loan Documents and, if
applicable, the related intercreditor
agreements and, to the extent consistent
with the foregoing, in accordance with the
higher of the following standards of
care: (1) the same manner in which, and
with the same care, skill, prudence and
diligence with which the Special Servicer
services and administers similar
mortgage loans for other third-party
portfolios, and (2) the same care, skill,
prudence and diligence with which the
Special Servicer services and administers
similar commercial, multifamily and
manufactured housing community
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mortgage loans owned by the Special
Servicer, in either case, giving due
consideration to customary and usual
standards of practice of prudent
institutional commercial, multifamily and
manufactured housing community
mortgage lenders, loan servicers and asset
managers, but without regard to: (A)
any relationship that the Special Servicer,
or any of its Affiliates may have
with the related Mortgagor or any Affiliate
thereof, any Mortgage Loan Seller or
any other party to this Agreement; (B) the
ownership of any Certificate,
Companion Loan or mezzanine loan by the
Special Servicer or any of its
Affiliates; (C) the Special Servicer's
right to receive compensation for its
services under this Agreement or with
respect to any particular transaction; (D)
the ownership, servicing or management for
others of any other mortgage loans or
mortgaged properties by the Special
Servicer; and (E) any debt that the Special
Servicer or any of its Affiliates has
extended to any Mortgagor or any of its
affiliates.
"Special Servicing Compensation": With respect to any Mortgage
Loan,
any of the Special Servicing Fee, the
Workout 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 ____% per annum.
"Specially Serviced Mortgage Loan": Subject to Section 3.24,
any
Mortgage Loan with respect to which:
(a) with respect to a Balloon Mortgage Loan, a payment default
shall
have
occurred with respect to the related Balloon Payment provided,
however,
that such Mortgage Loan shall not be a Specially Serviced
Mortgage
Loan until the end of the applicable Post Default Balloon
Period;
or
(b) the related Mortgagor has failed to make when due any
Monthly
Payment
(other than a Balloon Payment) or any other payment required
under
the
related Note or the related Mortgage, which failure continues
unremedied
for [60] days; or
(c) the Master Servicer (or Special Servicer with the consent of
the
Controlling Class Representative) has determined in its good faith
and
reasonable
judgment, that a default in the making of a Monthly Payment or
a Balloon
Payment or any other payment required under the related Note or
the
related Mortgage is likely to occur within [30] days and is likely
to
remain
unremedied for at least [60] days or, except as provided in
clause
(a) above,
in the case of a Balloon Payment, for at least [30] days; or
(d) there shall have occurred a default, other than as described
in
clause (a)
or (b) above, that materially impairs the value of the related
Mortgaged
Property as security for
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the
Mortgage Loan or otherwise materially and adversely affects the
interests
of Certificateholders, which default has continued unremedied
for the
applicable grace period under the terms of the Mortgage Loan
(or,
if no
grace period is specified, [60] days); or
(e) a decree or order of a court or agency or supervisory
authority
having
jurisdiction in the premises in an involuntary case under any
present or
future federal or state bankruptcy, insolvency or similar law
or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or
similar
proceedings, or for the winding-up or liquidation of its
affairs,
shall have
been entered against the related Mortgagor and such decree or
order
shall have remained in force undischarged or unstayed for a
period
of [60]
days; or
(f) the related Mortgagor shall have consented to the appointment
of
a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt,
marshalling of assets and liabilities or similar proceedings of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(g) the related Mortgagor shall have admitted in writing its
inability
to pay its debts generally as they become due, filed a petition
to take
advantage of any applicable insolvency or reorganization
statute,
made an
assignment for the benefit of its creditors, or voluntarily
suspended
payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property;
provided that a Mortgage Loan will cease to
be a Specially Serviced Mortgage
Loan when a Liquidation Event has occurred
in respect of such Mortgage Loan,
when the related Mortgaged Property or
Properties become REO Property or
Properties, or at such time as such of the
following as are applicable occur
with respect to the circumstances
identified above that caused the Mortgage Loan
to be characterized as a Specially Serviced
Mortgage Loan (and provided that no
other Servicing Transfer Event then exists
with respect to the particular
Mortgage Loan):
(i) with respect to the circumstances described in clauses (a)
and (b) above, the related Mortgagor has made the applicable
Balloon
Payment or three consecutive full and timely Monthly Payments
under
the terms of such Mortgage Loan (as such terms may be changed
or
modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special
Servicer
pursuant to Section 3.27);
(ii) with respect to the circumstances described in clauses
(c), (e), (f) and (g) above, such circumstances cease to exist
in
the good faith and reasonable judgment of the Special Servicer;
(iii) with
respect to the circumstances described in clause
(d) above, such default is cured; and
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(iv) with respect to the circumstances described in clause (h)
above, such
proceedings are terminated.
"Startup Day": The day designated as such pursuant to Section
2.07(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan,
at
any date of determination, an amount equal
to (a) the principal balance as of
the Cut-Off Date of such Mortgage Loan,
minus (b) the sum of (i) the principal
portion of each Monthly Payment due on such
Mortgage Loan after the Cut-Off Date
and prior to such date of determination, if
received from the Mortgagor or
advanced by the Master Servicer or Trustee,
(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 (iii)
Special Servicing Fees, Liquidation
Fees, accrued interest on Advances and
other Additional Trust Fund Expenses
incurred in connection with the related
Mortgage Loan on or before such date of
determination that were applied to reduce
Unscheduled Payments for the related
Distribution Date and (iv) 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. With respect to any
Companion Loan on any date of
determination, the Stated Principal Balance shall
equal the unpaid principal balance of such
Companion Loan.
"Strip Holder": The entity indicated as the "Strip Holder"
pursuant
to the definition of "Broker Strip" or any
heir, successor or assign with
respect to the Broker Strip Amount.
"Subordinate Certificates": Any of the [Class B], [Class C],
[Class
D], [Class E], [Class F], [Class G], [Class
H], [Class J], [Class K], [Class L],
[Class M], [Class N], [Class O], [Class P]
and [Class S] Certificates.
"Substitution Shortfall Amount": In connection with the
substitution
of one or more Replacement Mortgage Loans
for one or more Deleted Mortgage
Loans, the amount, if any, by which the
Purchase Price or aggregate Purchase
Price, as the case may be, for such Deleted
Mortgage Loan(s) exceeds the initial
Stated Principal Balance or aggregate
Stated Principal Balance, as the case may
be, of such Replacement Mortgage
Loan(s).
"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
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IRS or any other governmental taxing
authority under any applicable provisions
of federal, state or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund
is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a
[Class R] or [Class LR] Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Treasury Regulations": Applicable final or temporary regulation
of
the U.S. Department of the Treasury.
"Trust": The trust created by this Agreement.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i)
such Mortgage Loans as from time to
time are subject to this Agreement,
together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled
payments on or collections in respect
of the Mortgage Loans due after the Cut-Off
Date; (iii) any REO Property; (iv)
all revenues received in respect of any REO
Property; (v) the Master Servicer's
and the Trustee's rights under the
insurance policies with respect to the
Mortgage Loans required to be maintained
pursuant to this Agreement and any
proceeds thereof; (vi) any Assignments of
Leases, Rents and Profits and any
security agreements; (vii) any indemnities
or guaranties given as additional
security for any Mortgage Loans; (viii) all
of the Trustee's rights in the
Reserve Accounts and Lock-Box Accounts and
all assets deposited in the
Collection Account, the Lower-Tier
Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest
Distribution Account, the Interest
Reserve Account, the Excess Liquidation
Proceeds Reserve Account and any REO
Account including reinvestment income
thereon; and (ix) any environmental
indemnity agreements relating to the
Mortgaged Properties, in each of the
foregoing clauses (i) through (ix),
exclusive of the interest of the Companion
Holder therein.
"Trust REMIC": Each of the Lower-Tier REMIC and the Upper-Tier
REMIC.
"Trustee": _______________________, 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 or REO 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, computed in
the same manner as interest is
calculated on the related 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
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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_______% per annum.
"Underwriters": __________________________, ________________,
__________________ and
___________________.
"Unscheduled Payments": With respect to any Distribution Date
and
the Mortgage Loans, the aggregate of (a)
all Principal Prepayments received on
the Mortgage Loans on or prior to the
Determination Date and (b) the principal
portions of all Liquidation Proceeds,
condemnation awards, Insurance Proceeds
(net of Special Servicing Fees, Liquidation
Fees, accrued interest on Advances
and other Additional Trust Fund Expenses
incurred in connection with the related
Mortgage Loan) and, if applicable, REO
Revenues received with respect to the
Mortgage Loans and any REO Mortgage Loans
on or prior to the related
Determination Date, but in each case only
to the extent that such principal
portion represents a recovery of principal
for which no advance was previously
made in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The trust account or
accounts
created and maintained as a separate trust
account (or separate sub-account
within the same account as the Lower-Tier
Distribution Account) or accounts by
the Trustee pursuant to Section 3.05(b),
which shall be entitled
"___________________, as Trustee, in trust
for Holders of GS Mortgage Securities
Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 20__-__,
Upper-Tier Distribution Account" and which
must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust
Fund
consisting of the Lower-Tier Regular
Interests and amounts held from time to
time in the Upper-Tier Distribution
Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the
extent provided in applicable Treasury
regulations) or other entity created or
organized in or under the laws of the
United States, any State thereof or the
District of Columbia, an estate whose
income is subject to United States federal
income tax regardless of its source,
or a trust if a court within the United
States is able to exercise primary
supervision over the administration of such
trust, and one or more such U.S.
Persons have the authority to control all
substantial decisions of such trust
(or, to the extent provided in applicable
Treasury regulations, certain trusts
in existence as of August 20, 1996 which
are eligible to elect to be treated as
U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any
Certificate or Class of Certificates. At
all times during the term of this
Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) [0]%,
in the case of the [Class R] and
[Class LR] Certificates, (b) [1]%, in the
case of the [Class X] Certificates
(allocated pro rata between the [Class X-1]
and [Class X-2] pro rata based on
their outstanding Notional Amounts);
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
and
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(c) in the case of any of the [Class A-1],
[Class A-2], [Class A-3], [Class B],
[Class C], [Class D], [Class E], [Class F],
[Class G], [Class H], [Class J],
[Class K], [Class L], [Class M], [Class N],
[Class O], [Class P] and [Class S]
Certificates, a percentage equal to the
product of (i) [99]% multiplied by (ii)
a fraction, the numerator of which is equal
to the aggregate outstanding
Certificate Principal Amount of any such
Class (which will not 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 (which will not be reduced for
this purpose by the amount of any
Appraisal Reduction Amounts notionally
allocated to such Class, if applicable).
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.
"Workout Fee": The fee paid to the Special Servicer with respect
to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of [1.00]% of each collection (other
than
Penalty Charges) of interest and principal
(other than any amount for which a
Liquidation Fee would be paid), including
(i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than
those included in clause (i) or (ii) of
this definition) at maturity, received on
each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage
Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan,
the
yield maintenance charge or prepayment
premium, if any, payable under the
related Note in connection with certain
prepayments.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, the following provisions shall
apply:
(a) All calculations of interest with respect to the Mortgage
Loans
shall be made in accordance with the terms
of the related Note and Mortgage.
(b) For purposes of distribution of Yield Maintenance Charges
pursuant to Section 4.01(c) on any
Distribution Date, the Class of Certificates
as to which any prepayment shall be deemed
to be distributed shall be determined
on the assumption that the portion of the
Principal Distribution Amount paid to
the Certificates on such Distribution Date
in respect of
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principal shall consist first of scheduled
payments included in the definition
of Principal Distribution Amount and second
of prepayments included in such
definition.
(c) 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.
(d) Excess Interest shall not be added to the outstanding
principal
balance of the Mortgage Loans
notwithstanding that the related Loan Documents
may provide otherwise.
(e) All amounts collected in respect of any Mortgage Loan in
the
form of payments from Mortgagors,
Liquidation Proceeds, condemnation proceeds or
Insurance Proceeds shall be applied to
amounts due and owing under the related
Note and Mortgage (including, without
limitation, for principal and accrued and
unpaid interest; provided that any amounts
received in respect of a Mortgage
Loan as to which a default has occurred
shall be applied to all amounts then due
and payable on such Mortgage Loan prior to
being applied to Default Interest or
late charges, and shall be applied to
Default Interest on such Mortgage Loan
prior to the application to late fees) in
accordance with the express provisions
of the related Note and Mortgage and, in
the absence of such express provisions,
shall be applied for purposes of this
Agreement: first, as a recovery of any
related unreimbursed Property Advances and,
if applicable, unpaid Liquidation
Expenses; second, as a recovery of accrued
and unpaid interest at the related
Mortgage Rate on such Mortgage Loan to but
not including, as appropriate, the
date of receipt or, in the case of a full
Monthly Payment from any Mortgagor,
the related Due Date; third, as a recovery
of principal of such Mortgage Loan
then due and owing, including, without
limitation, by reason of acceleration of
the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan,
as a recovery of principal to the
extent of its entire remaining unpaid
principal balance); fourth, as a recovery
of amounts to be currently applied to the
payment of, or escrowed for the future
payment of, real estate taxes, assessments,
insurance premiums, ground rents (if
applicable) and similar items; fifth, as a
recovery of Reserve Funds to the
extent then required to be held in escrow;
sixth, as a recovery of any
Prepayment Premium then due and owing under
such Mortgage Loan; seventh, as a
recovery of any Penalty Charges then due
and owing under such Mortgage Loan;
eighth, as a recovery of any other amounts
(other than Excess Interest) then due
and owing under such Mortgage Loan; ninth,
as a recovery of any remaining
principal of such Mortgage Loan to the
extent of its entire remaining unpaid
principal balance; and tenth, if such
Mortgage Loan is an ARD Loan, as a
recovery of any Excess Interest then due
and owing on such Mortgage Loan.
(f) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the
costs of operating, managing,
maintaining and disposing of such REO
Property) shall be treated: first, as a
recovery of any related unreimbursed
Property Advances and related unpaid
Advance Interest Amounts; second, as a
recovery of accrued and unpaid interest
on the related REO Mortgage Loan at the
related Mortgage Rate to but not
including the Due Date in the month of
receipt; third, as a recovery of
principal of the related
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REO Mortgage Loan to the extent of its
entire unpaid principal balance; and
fourth, as a recovery of any other amounts
deemed to be due and owing in respect
of the related REO Mortgage Loan.
(g) The applications of amounts received in respect of any
Mortgage
Loan or any REO Property pursuant to
paragraphs (e) and (f) of this Section 1.02
shall be determined by the Master Servicer
in its good faith judgment.
(h) If any expense under this Agreement relates, in the
reasonable
judgment of the Master Servicer, Special
Servicer or Trustee, as applicable,
primarily to the administration of the
Trust Fund or any Trust REMIC or any
determination respecting the amount,
payment or avoidance of any tax under the
REMIC Provisions or the actual payment of
any REMIC tax or expense with respect
to any Trust REMIC, then such expense shall
not be allocated to, deducted from
or reimbursed from or otherwise charged
against any holder of a Companion Loan
and such holder shall not suffer any
adverse consequences as a result of the
payment of such expense, except to the
extent permitted under the related
intercreditor agreement.
Section 1.03 Certain Constructions. For purposes of this
Agreement,
references to the most or next most
subordinate Class of Certificates
outstanding at any time shall mean the most
or next most subordinate Class of
Certificates then outstanding as among the
[Class A], [Class X], [Class B],
[Class C], [Class D], [Class E], [Class F],
[Class G], [Class H], [Class J],
[Class K], [Class L], [Class M], [Class
N],[ Class O], [Class P] and [Class S]
Certificates; provided, however, that for
purposes of determining the most
subordinate Class of Certificates, in the
event that the [Class A] Certificates
are the only Class of Certificates
outstanding (other than the [Class X], [Class
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 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), the [Class S]
Certificates 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
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. (a) The Depositor,
concurrently with the execution and
delivery hereof, does hereby establish a
trust, appoint the Trustee to serve as
trustee of such trust and assign to the
Trustee without recourse for the benefit of
the Certificateholders all the
right, title and interest of the Depositor,
including any security interest
therein for the benefit of the Depositor,
in, to and under (i) the Mortgage
Loans identified on the Mortgage Loan
Schedule, (ii) Sections 2, 3, 4, 5(a),
5(b), 6 (including, without limitation
Section
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6(i)), 7, 11, 12, 15 and 16 of each Loan
Sale Agreement and (iii) 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 assignment
includes all interest and principal
received or receivable on or with respect to
the Mortgage Loans (other than payments of
principal, interest and other amounts
due and payable on the Mortgage Loans on or
before the Cut-off Date). The
transfer of the Mortgage Loans and the
related rights and property accomplished
hereby is absolute and, notwithstanding
Section 10.08, is intended by the
parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall
direct, and hereby represents and
warrants that it has directed, each
Mortgage Loan Seller pursuant to the related
Loan Sale Agreement to deliver to and
deposit with, or cause to be delivered to
and deposited with, the Trustee or the
Custodian (with a copy to the Master
Servicer), on or before the Closing Date,
the Mortgage File for each of such
Mortgage Loan Seller's Mortgage Loans so
assigned. Further, each of the Mortgage
Loan Sellers pursuant to the applicable
Loan Sale Agreement has agreed to
deliver to and deposit with, or cause to be
delivered to and deposited with, the
Trustee or a Custodian appointed thereby,
on or before the Closing Date, the
Note, a copy of the Mortgage, a copy of any
related Ground Leases, the originals
or copies (if the originals have been
provided to the Master Servicer) of any
related letters of credit (and any transfer
or assignment documents) and the
lender's title insurance policy (original
or copy or marked-up title commitment
marked as binding and countersigned by the
title company or its authorized agent
either on its face or by an acknowledged
closing instruction or escrow letter)
for each Mortgage Loan so assigned;
provided, however, that if any Mortgage Loan
Seller fails to deliver on or before the
Closing Date, with respect to any
Mortgage Loan so assigned, a copy of the
Mortgage, a copy of any related Ground
Lease, the originals of any related letters
of credit or the lender's title
policy (original or copy or marked-up title
commitment marked as binding and
countersigned by the title company or its
authorized agent either on its face or
by an acknowledged closing instruction or
escrow letter), the delivery
requirements of this Section 2.01(b) shall
be deemed satisfied with respect to
such missing document if the related
Mortgage Loan Seller delivers such document
to the Trustee within 15 Business Days
following the Closing Date. With respect
to the _____________ AB Mortgage Loan, the
obligation of each Mortgage Loan
Seller to deliver to the Trustee a Note
shall be limited to delivering only the
Note such Mortgage Loan Seller sold to the
Depositor and the Mortgage Loan
Sellers may deliver one Mortgage File to
satisfy each other delivery requirement
with respect to the Mortgage File
hereunder. If the related Mortgage Loan Seller
cannot deliver, or cause to be delivered as
to any Mortgage Loan, the original
Note, the related Mortgage Loan Seller
shall deliver a copy or duplicate
original of such Note, together with an
affidavit certifying that the original
thereof has been lost or destroyed (and
including an indemnification provision).
If the related Mortgage Loan Seller cannot
deliver, or cause to be delivered, as
to any Mortgage Loan, any of the documents
and/or instruments referred to in
clauses (2), (4), (11) and (12) of the
definition of "Mortgage File," with
evidence of recording or filing, as the
case may be, thereon, because of a delay
caused by the public recording or filing
office where such document or
instrument has been delivered for
recordation or filing, or because such
original recorded document has been lost or
returned from the recording or
filing office and subsequently lost, as the
case may be, the delivery
requirements of the related Loan Sale
Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such
missing document or instrument, and
such missing document or instrument shall
be deemed to have been included in the
Mortgage File, provided that a photocopy of
such missing document or instrument
(without
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evidence of recording or filing thereon,
but certified (which certification may
relate to multiple documents or
instruments) by the related Mortgage Loan Seller
to be a true and complete copy of the
original thereof submitted for recording
or filing, as the case may be) is delivered
to the Trustee or a Custodian
appointed thereby on or before the Closing
Date and either the original of such
missing document or instrument, or a copy
thereof, with evidence of recording or
filing, as the case may be, thereon, is
delivered to or at the direction of the
Trustee within 180 days of the Closing Date
(or within such longer period after
the Closing Date as the Trustee may consent
to, which consent shall not be
unreasonably withheld so long as the
related Mortgage Loan Seller has provided
the Trustee with evidence of such recording
or filing, as the case may be, or
has certified to the Trustee as to the
occurrence of such recording or filing,
as the case may be, and is, as certified to
the Trustee no less often than
quarterly, in good faith attempting to
obtain from the appropriate county
recorder's or filing office such original
or copy). Upon request, the Trustee
shall provide a copy of any such
certification, promptly after receipt thereof,
to any Certificateholder holding a
Certificate in the Controlling Class that has
provided a certification to the Trustee. If
the related Mortgage Loan Seller
cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original
or a copy of the related lender's title
insurance policy referred to in clause
(9) of the definition of "Mortgage File"
solely because such policy has not yet
been issued, the delivery requirements of
this Section 2.01(b) shall be deemed
to be satisfied as to such missing item,
and such missing item shall be deemed
to have been included in the related
Mortgage File, provided that the related
Mortgage Loan Seller shall have delivered
to the Trustee or a Custodian
appointed thereby, on or before the Closing
Date, a pro forma title policy or
commitment for title insurance "marked-up"
at the closing of such Mortgage Loan,
marked as binding by the insurer or its
agent, and the related Mortgage Loan
Seller shall deliver to the Trustee or such
Custodian, promptly following the
receipt thereof, the original related
lender's title insurance policy (or a copy
thereof). Neither the Trustee nor any
Custodian shall in any way be liable for
any failure by the related Mortgage Loan
Seller or the Depositor to comply with
the delivery requirements of the Loan Sale
Agreement and this Section 2.01(b).
If any of the endorsements referred to in clause (1) of the
definition of "Mortgage File" are delivered
to the Trustee in blank, the Trustee
shall be responsible for promptly (and in
any event within 45 days of the
Closing Date) completing the related
endorsement and if any of the assignments
referred to in clauses (3), (5) and (7) of
the definition of "Mortgage File" are
delivered to the Trustee in blank, the
related Mortgage Loan Seller shall be
responsible for completing the related
assignment, in the name of the Trustee
(in such capacity) and in any event prior
to releasing possession thereof.
Notwithstanding anything herein to the
contrary, with respect to the documents
referred to in clause (17) of the
definition of Mortgage File, the Master
Servicer may hold the original of such
document in trust on behalf of the
Trustee in order to draw on such letter of
credit and the applicable Mortgage
Loan Seller shall be deemed to have
satisfied the delivery requirements of this
Section 2.01(b) by delivering the original
of such document to the Master
Servicer who will certify receipt of such
document by the Closing Date and send
a copy of the applicable document to the
Trustee, and the Trustee shall appoint
the Master Servicer as custodian with
respect to any such letters of credit. The
applicable Mortgage Loan Seller shall pay
any costs of assignment of such letter
of credit required in order for the Master
Servicer to draw on such letter of
credit. In the event that the related
transfer documents specified in clause
(17) of the definition of Mortgage File are
missing because the related
assignment documents have not been
completed, the applicable Mortgage Loan
Seller shall take all necessary steps to
enable the Master Servicer to draw on
the related letter of credit including,
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if necessary, drawing on the letter of
credit in its own name pursuant to
written instructions from the Master
Servicer and immediately remitting such
funds (or causing such funds to be
remitted) to the Master Servicer.
Notwithstanding the
above, the related Mortgage Loan Seller shall
handle the processing of the assignment and
transfer of the original letters of
credit. The related Mortgage Loan Seller
shall have up to forty-five (45) days
following the Closing Date to complete such
transfer; and provided, further, in
the event the Master Servicer determines to
make a draw under any letter of
credit prior to the time it has been
assigned and/or transferred to the Trustee
on behalf of the Trust Fund or the Master
Servicer, as applicable, then the
related Mortgage Loan Seller agrees to
cooperate with the Master Servicer in
making any presentation and draw concerning
such letter of credit, on behalf of
the Trust Fund (and if necessary the
related Mortgage Loan Seller shall make
such draw in its own name pursuant to the
written instructions of the Master
Servicer and deliver the proceeds to the
Master Servicer on behalf of the Trust
Fund). In the event a draw is not honored
or able to be processed as a result of
the transfer process being incomplete, the
related Mortgage Loan Seller shall be
liable to the Trust Fund for all expenses,
damages or losses, including, but not
limited to reimbursement of interest
charged by the Master Servicer for any
Advance made in lieu of such draw, up to an
amount not to exceed the amount of
such draw plus any Advance Interest Amount
and related expenses resulting from
the failure of the draw to occur.
(c) The related Mortgage Loan Seller shall, as to each Mortgage
Loan, at its own expense, promptly (and in
any event within 60 days of the
Closing Date) cause to be submitted for
recording or filing, as the case may be,
in the appropriate public office for real
property records or UCC Financing
Statements, as appropriate, each assignment
referred to in clauses (3) and (5)
of the definition of "Mortgage File" and
each UCC-2 and UCC-3 referred to in
clause (11)(B) of the definition of
"Mortgage File." Each such assignment shall
reflect that it should be returned by the
public recording office or the related
Mortgage Loan Seller to the Trustee or its
designee following recording, and
each such UCC-2 and UCC-3 shall reflect
that the file copy thereof should be
returned to the Trustee or its designee
following filing. The Trustee shall, at
the expense of the respective Mortgage Loan
Seller, deliver a copy of any such
document or instrument to the Master
Servicer and the respective Mortgage Loan
Seller, upon request. If any such document
or instrument is lost or returned to
the Trustee unrecorded or unfiled, as the
case may be, because of a defect
therein, the Trustee shall direct the
related Mortgage Loan Seller, pursuant to
the related Loan Sale Agreement promptly to
prepare or cause to be prepared a
substitute therefor or cure such defect, as
the case may be, and the related
Mortgage Loan Seller shall comply with such
direction.
(d) All documents and records in the Depositor's or any
Mortgage
Loan Seller's possession relating to the
Mortgage Loans that ar
