Exhibit 4
GS MORTGAGE SECURITIES CORPORATION II,
Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer,
and
WELLS FARGO BANK, N.A.,
Trustee
------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
------------------------------------------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2006-GG8
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms...............................................
Section 1.02
Certain Calculations........................................
Section 1.03
Certain Constructions.......................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans................................
Section 2.02
Acceptance by Custodian and the Trustee.....................
Section 2.03
Mortgage Loan Sellers' Repurchase or Cures of Mortgage
Loans for Document Defects in Mortgage Files and
Breaches of Representations and Warranties..................
Section 2.04
Representations, Warranties and Covenants of the Master
Servicer....................................................
Section 2.05
Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 2.06
Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests................................
Section 2.07
Miscellaneous REMIC Provisions..............................
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01
Master Servicer to Act as Master Servicer;
Administration of the Mortgage Loans........................
Section 3.02
Liability of the Master Servicer............................
Section 3.03
Collection of Certain Mortgage Loan Payments................
Section 3.04
Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.05
Collection Account; Upper-Tier Distribution Account;
Lower-Tier Distribution Account; Excess Liquidation
Proceeds Reserve Account....................................
Section 3.05A Whole
Loan Custodial Account................................
Section 3.06
Permitted Withdrawals from the Collection Account...........
Section 3.06A
Permitted Withdrawals from the Whole Loan Custodial
Account.....................................................
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..................................
Section 3.08
Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.............................
Section 3.09
Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions...........................
Section 3.10
Realization Upon Defaulted Mortgage Loans...................
Section 3.11
Trustee to Cooperate; Release of Mortgage Files.............
Section 3.12
Servicing Fees and Special Servicing Compensation...........
Section 3.13
Compensating Interest Payments..............................
Section 3.14
[Reserved]..................................................
Section 3.15
[Reserved]..................................................
Section 3.16
Access to Certain Documentation.............................
Section 3.17
Title and Management of REO Properties......................
Section 3.18
Sale of Defaulted Mortgage Loans and REO Properties.........
Section 3.19
Additional Obligations of the Master Servicer;
Inspections Obligation to Notify Ground Lessors;
Delivery of Certain Reports to the Companion Loan
Noteholder..................................................
Section 3.20
[Reserved]..................................................
Section 3.21
Lock-Box Accounts, Escrow Accounts..........................
Section 3.22
Property Advances...........................................
Section 3.23
Appointment of Special Servicer.............................
Section 3.24
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................
Section 3.25
Interest Reserve Account....................................
Section 3.26
Controlling Class Approvals.................................
Section 3.27
Modifications, Waivers and Amendments.......................
Section 3.28
Additional Obligations with Respect to Certain Mortgage
Loans.......................................................
Section 3.29
Certain Matters Relating to the Non-Serviced Mortgage
Loan........................................................
Section 3.30
Additional Matters Regarding Advance Reimbursement..........
Section 3.31
Serviced Companion Loan Intercreditor Matters...............
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions...............................................
Section 4.02
Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03
Compliance with Withholding Requirements....................
Section 4.04
REMIC Compliance............................................
Section 4.05
Imposition of Tax on the Trust Fund.........................
Section 4.06
Remittances; P&I
Advances...................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates............................................
Section 5.02
Registration, Transfer and Exchange of Certificates.........
Section 5.03
Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04
Appointment of Paying Agent.................................
Section 5.05
Access to Certificateholders' Names and Addresses...........
Section 5.06
Actions of Certificateholders...............................
Section 5.07
Authenticating Agent........................................
Section 5.08
Appointment of Custodians...................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01
Liability of the Depositor, the Master Servicer and the
Special Servicer............................................
Section 6.02
Merger or Consolidation of the Master Servicer and the
Special Servicer............................................
Section 6.03
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others...................
Section 6.04
Limitation on Resignation of the Master Servicer or
Special Servicer............................................
Section 6.05
Rights of the Depositor, the Trustee and the Companion
Loan
Noteholders in Respect of the Master Servicer and
Special Servicer............................................
Section 6.06
Master Servicer or Special Servicer as Owner of a
Certificate.................................................
ARTICLE VII
DEFAULT
Section 7.01
Events of Default...........................................
Section 7.02
Trustee to Act; Appointment of Successor....................
Section 7.03
Notification to Certificateholders..........................
Section 7.04
Other Remedies of Trustee...................................
Section 7.05
Waiver of Past Events of Default; Termination...............
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01
Duties of Trustee...........................................
Section 8.02
Certain Matters Affecting the Trustee.......................
Section 8.03
Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04
Trustee May Own Certificates................................
Section 8.05
Payment of Trustee Fees and Expenses; Indemnification.......
Section 8.06
Eligibility Requirements for Trustee........................
Section 8.07
Resignation and Removal of the Trustee......................
Section 8.08
Successor Trustee...........................................
Section 8.09
Merger or Consolidation of Trustee..........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee...............
Section 8.11
Controlling Certificateholders and Controlling Class
Representative..............................................
ARTICLE IX
TERMINATION; OPTIONAL MORTGAGE LOAN PURCHASE
Section 9.01
Termination; Optional Mortgage Loan Purchase................
ARTICLE X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent
of the Parties; Reasonableness.......................
Section 10.02
Succession; Subcontractors..................................
Section 10.03 Filing
Obligations..........................................
Section 10.04 Form
10-D Filings...........................................
Section 10.05 Form
10-K Filings...........................................
Section 10.06
Sarbanes-Oxley Certification................................
Section 10.07 Form 8-K
Filings............................................
Section 10.08 Form 15
Filing..............................................
Section 10.09 Annual
Compliance Statements................................
Section 10.10 Annual
Reports on Assessment of Compliance with
Servicing Criteria..........................................
Section 10.11 Annual
Independent Public Accountants' Servicing Report.....
Section 10.12
Indemnification.............................................
Section 10.13
Amendments..................................................
Section 10.14
Regulation AB Notices.......................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Counterparts................................................
Section 11.02
Limitation on Rights of Certificateholders..................
Section 11.03
Governing Law...............................................
Section 11.04
Notices.....................................................
Section 11.05
Severability of Provisions..................................
Section 11.06 Notice
to the Depositor and Each Rating Agency..............
Section 11.07
Amendment...................................................
Section 11.08
Confirmation of Intent......................................
Section 11.09
Third-Party Beneficiaries...................................
Section 11.10 Request
by Certificateholders or Companion Loan
Noteholders.................................................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form
of Class A-1 Certificate
Exhibit A-2 Form
of Class A-2 Certificate
Exhibit A-3 Form
of Class A-3 Certificate
Exhibit A-4 Form
of Class A-AB Certificate
Exhibit A-5 Form
of Class A-4 Certificate
Exhibit A-6 Form
of Class A-1A Certificate
Exhibit A-7 Form
of Class A-M Certificate
Exhibit A-8 Form
of Class A-J Certificate
Exhibit A-9 Form
of Class X Certificate
Exhibit A-10 Form of
Class B Certificate
Exhibit A-11 Form of
Class C Certificate
Exhibit A-12 Form of
Class D Certificate
Exhibit A-13 Form of
Class E Certificate
Exhibit A-14 Form of
Class F Certificate
Exhibit A-15 Form of
Class G Certificate
Exhibit A-16 Form of
Class H Certificate
Exhibit A-17 Form of
Class J Certificate
Exhibit A-18 Form of
Class K Certificate
Exhibit A-19 Form of
Class L Certificate
Exhibit A-20 Form of
Class M Certificate
Exhibit A-21 Form of
Class N Certificate
Exhibit A-22 Form of
Class O Certificate
Exhibit A-23 Form of
Class P Certificate
Exhibit A-24 Form of
Class Q Certificate
Exhibit A-25 Form of
Class S Certificate
Exhibit A-26 Form of
Class R Certificate
Exhibit A-27 Form of
Class LR Certificate
Exhibit B
Mortgage Loan Schedule
Exhibit C-1 Form
of Transferee Affidavit
Exhibit C-2 Form
of Transferor Letter
Exhibit D-1 Form
of Investment Representation Letter
Exhibit D-2 Form
of ERISA Representation Letter
Exhibit E
Form of Request for Release
Exhibit F
Securities Legend
Exhibit G
Form of Statement to Certificateholders
Exhibit H
[Reserved]
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 Certification to be Provided with Form 10-K
Exhibit O-1
Form of
Investor Certification
Exhibit O-2 Form
of Confidentiality Agreement
Exhibit P-1 Form
of Certification to be Provided to Depositor by the
Trustee
Exhibit P-2 Form
of Certification to be Provided to Depositor by the
Master Servicer
Exhibit P-3 Form
of Certification to be Provided to Depositor by the
Special Servicer
Exhibit Q
Trustee Certification/Exception Report
Exhibit R
Form of Notice to Other Master Servicer
Exhibit S
Supplemental Servicer Schedule
Exhibit T
Servicing Criteria to be Addressed in Assessment of
Compliance
Exhibit U
Additional Form 10-D Disclosure
Exhibit V
Additional Form 10-K Disclosure
Exhibit W
Form 8-K Disclosure
Exhibit X
Form of Additional Disclosure Information
Exhibit Y
Servicing and Subservicing Agreements
Schedule I
Broker Strip Loan
Schedule II
Class A-AB Planned Principal Balance Schedule
<PAGE>
Pooling and Servicing Agreement, dated as of October 1, 2006,
among
GS Mortgage Securities Corporation II, as Depositor, Wachovia Bank,
National
Association, as Master Servicer, CWCapital Asset Management LLC, as
Special
Servicer and Wells Fargo Bank, N.A., 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 two
segregated
portions of the Trust Fund be treated for federal income tax
purposes as two
separate REMICs (each, a "Trust 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 A-AB, Class A-4, Class A-1A, Class X, Class A-M,
Class A-J,
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 Q and Class S
Certificates
represent "regular interests" in the Upper-Tier REMIC. The Class R
Certificates
constitute the sole class of "residual interests" in the Upper-Tier
REMIC for
purposes of the REMIC Provisions. The Class LR Certificates
constitute the sole
class of "residual interests" in the Lower-Tier REMIC for purposes
of the REMIC
Provisions. There are also 24 classes of uncertificated Lower-Tier
Regular
Interests issued under this Agreement (the Class LA-1, Class LA-2,
Class LA-3,
Class LA-AB, Class LA-4, Class LA-1A, Class LA-M, Class LA-J, Class
LB, Class
LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, Class
LL, Class LM, Class LN, Class LO, Class LP, Class LQ 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.
UPPER-TIER REMIC
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class
A-1A, Class A-M, Class A-J, 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
Q, Class S and Class X Certificates will evidence "regular
interests" in the
Upper-Tier REMIC created hereunder. 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 approximate
pass-through rate (the "Pass-Through Rate"), the aggregate initial
principal
amount (the "Original Certificate Principal Amount") 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:
Approximate
Initial
Original
Related
Pass-Through Rate
Certificate Original
Ratings
Certificate
(per annum)
Principal Amount Moody's/Fitch (1)
------------------- --------------------- -------------------
------------------
Class A-1(2)
4.061%
$ 69,950,000
Aaa/AAA
Class A-2(2)
5.479%
$ 940,740,000
Aaa/AAA
Class A-3(2)
5.542%
$ 52,875,000
Aaa/AAA
Class A-AB(2)
5.535%
$ 111,500,000
Aaa/AAA
Class A-4(2)
5.560%
$1,598,772,000
Aaa/AAA
Class A-1A(2)
5.547%
$ 196,179,000
Aaa/AAA
Class A-M
5.591%
$ 424,288,000
Aaa/AAA
Class A-J
5.622%
$ 302,305,000
Aaa/AAA
Class B
5.662%
$ 26,518,000
Aa1/AA+
Class C
5.672%
$ 53,036,000
Aa2/AA
Class D
5.701%(3)
$ 37,125,000
Aa3/AA-
Class E
5.740%(3)
$ 37,125,000
A1/A+
Class F
5.770%(3)
$ 42,429,000
A2/A
Class G
5.839%(3)
$ 53,036,000
A3/A-
Class H
6.036%(3)
$ 47,733,000
Baa1/BBB+
Class J
6.134%(3)
$ 53,036,000
Baa2/BBB
Class K
6.374%
$ 42,428,000
Baa3/BBB-
Class L
5.282%(3)
$ 26,518,000
Ba1/BB+
Class M
5.282%(3)
$ 15,911,000
Ba2/BB
Class N
5.282%(3)
$ 15,911,000
Ba3/BB-
Class O
5.282%(3)
$ 10,607,000
B1/B+
Class P
5.282%(3)
$ 10,607,000
B2/B
Class Q
5.282%(3)
$ 15,911,000
B3/B-
Class S
5.282%(3)
$ 58,340,299
NR/NR
Class X
0.858%(6)
$4,242,880,299(7)
Aaa/AAA
Class R
None
None(8)
NR/NR
-----------------------
(1) The
Certificates marked with "NR" have not been rated by the
applicable
Rating
Agency.
(2) For purposes
of making distributions to the Class A-1, Class A-2, Class
A-3, Class
A-AB, Class A-4 and Class A-1A Certificates, the pool of
Mortgage
Loans will be deemed to consist of two distinct Loan Groups,
Loan
Group 1
and Loan Group 2.
(3) The
Pass-Through Rate for any Distribution Date for the Class D, Class
E,
Class F,
Class G, Class H and Class J Certificates will be 5.701%,
5.740%,
5.770%,
5.839%, 6.036% and 6.134%, respectively, subject to a maximum
Pass-Through Rate equal to the WAC Rate. The Pass-Through Rate for
any
Distribution Date for the Class L, Class M, Class N, Class O, Class
P,
Class Q
and Class S Certificates will be 5.282%, subject to a maximum
Pass-Through Rate equal to the WAC Rate.
(4) The
Pass-Through Rate for any Distribution Date for the Class K
Certificates will be the WAC Rate minus 0.029% per annum.
(6) The
Pass-Through Rate for the Class X Certificates will be calculated
in
accordance
with the definition of "Class X Pass-Through Rate."
(7) The Class X
Certificates will not have a Certificate Principal Amount;
rather,
such Class of Certificates will accrue interest as provided
herein
on the
related Class X Notional Amount.
(8) The Class R
Certificates do not have a Certificate Principal Amount or
Notional
Amount, do not bear interest and will not be entitled to
distributions of Yield Maintenance Charges. Any Available
Distribution
Amount
remaining 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").
Corresponding
Corresponding Original
Component
Original Class Lower-Tier
Lower-Tier
of Class X
Corresponding
Principal
Regular
Principal Certificates
Certificates
Balance
Interest (1)
Balance
(1)
---------------- ---------------- --------------- ----------------
-------------
Class A-1
$ 69,950,000
LA-1 $
69,950,000
X-A-1
Class A-2
$ 940,740,000
LA-2 $
940,740,000
X-A-2
Class A-3
$ 52,875,000
LA-3 $
52,875,000
X-A-3
Class A-AB
$ 111,500,000
LA-AB $
111,500,000
X-A-AB
Class A-4
$1,598,772,000
LA-4
$1,598,772,000 X-A-4
Class A-1A
$ 196,719,000
LA-1A $
196,719,000
X-A-1A
Class A-M
$ 424,288,000
LA-M $
424,288,000
X-A-M
Class A-J
$ 302,305,000
LA-J $
302,305,000
X-A-J
Class B
$ 26,518,000
LB
$ 26,518,000
X-B
Class C
$ 53,036,000
LC
$ 53,036,000
X-C
Class D
$ 37,125,000
LD
$ 37,125,000
X-D
Class E
$ 37,125,000
LE
$ 37,125,000
X-E
Class F
$ 42,429,000
LF
$ 42,429,000
X-F
Class G
$ 53,036,000
LG
$ 53,036,000
X-G
Class H
$ 47,733,000
LH
$ 47,733,000
X-H
Class J
$ 53,036,000
LJ
$ 53,036,000
X-J
Class K
$ 42,428,000
LK
$ 42,428,000
X-K
Class L
$ 26,518,000
LL
$ 26,518,000
X-L
Class M
$ 15,911,000
LM
$ 15,911,000
X-M
Class N
$ 15,911,000
LN
$ 15,911,000
X-N
Class O
$ 10,607,000
LO
$ 10,607,000
X-O
Class P
$ 10,607,000
LP
$ 10,607,000
X-P
Class Q
$ 15,911,000
LQ
$ 15,911,000
X-Q
Class S
$ 58,340,299
LS
$ 58,340,299
X-S
------------
(1) The Lower-Tier Regular Interest and the Component 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
Component,"
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 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
approximately
$4,242,880,299.
(i) Eight (8) Mortgage Loans: the Village of Merrick Park
Mortgage
Loan, the CA Headquarters Mortgage Loan, the Fair Lakes Office Park
Mortgage
Loan, the ECM Theater Portfolio Mortgage Loan, the Pinnacle II
Mortgage Loan,
the Meridian Apartments Mortgage Loan, the Lichtins Office Mortgage
Loan and the
Talmadge Town Center Mortgage Loan (collectively, together with the
related
Companion Loans, the "Whole Loans") represent one of the mortgage
loans in their
respective Whole Loan. Seven (7) of these Whole Loans, the Village
of Merrick
Park Mortgage Loan, the CA Headquarters Mortgage Loan, the ECM
Theater Portfolio
Mortgage Loan, the Pinnacle II Mortgage Loan, the Meridian
Apartments Mortgage
Loan, the Lichtins Office Mortgage Loan and the Talmadge Town
Center Mortgage
Loan, will be serviced and administered under this Agreement:
(ii) The Village of Merrick Park Mortgage Loan and the Village
of
Merrick Park Subordinate Companion Loan are part of a split loan
structure
whereby the Village of Merrick Park Mortgage Loan is senior to the
Village of
Merrick Park Subordinate Companion Loan. The Village of Merrick
Park Mortgage
Loan and the Village of Merrick Park Subordinate Companion Loan
will be serviced
and administered in accordance with this Agreement.
(iii) The CA Headquarters Mortgage Loan and the CA Headquarters
Subordinate Companion Loan are part of a split loan structure
whereby the CA
Headquarters Mortgage Loan is senior to the CA Headquarters
Subordinate
Companion Loan. The CA Headquarters Mortgage Loan and the CA
Headquarters
Subordinate Companion Loan will be serviced and administered in
accordance with
this Agreement.
(iv) The Fair Lakes Office Park Mortgage Loan and the Fair
Lakes
Office Park Pari Passu Companion Loan are part of a split loan
structure whereby
the Fair Lakes Office Park Mortgage Loan is pari passu with the
Fair Lakes
Office Park Pari Passu Companion Loan. The Fair Lakes Office Park
Mortgage Loan
is part of the Trust Fund. The Fair Lakes Office Park Mortgage Loan
and the Fair
Lakes Office Park Pari Passu Companion Loan will be serviced and
administered in
accordance with the Other Pooling Agreement.
(v) The ECM Theater Portfolio Mortgage Loan and the ECM Theater
Portfolio Subordinate Companion Loan are part of a split loan
structure whereby
the ECM Theater Portfolio Mortgage Loan is senior to the ECM
Theater Portfolio
Subordinate Companion Loan. The ECM Theater Portfolio Mortgage Loan
and the ECM
Theater Portfolio Subordinate Companion Loan will be serviced and
administered
in accordance with this Agreement.
(vi) The Pinnacle II Mortgage Loan and the Pinnacle II
Subordinate
Companion Loan are part of a split loan structure whereby the
Pinnacle II
Mortgage Loan is senior to the Pinnacle II Subordinate Companion
Loan. The
Pinnacle II Mortgage Loan and the Pinnacle II Subordinate Companion
Loan will be
serviced and administered in accordance with this Agreement.
(vii) The Meridian Apartments Mortgage Loan and the Meridian
Apartments Subordinate Companion Loan are part of a split loan
structure whereby
the Meridian Apartments Mortgage Loan is senior to the Meridian
Apartments
Subordinate Companion Loan. The Meridian Apartments Mortgage Loan
and the
Meridian Apartments Subordinate Companion Loan will be serviced and
administered
in accordance with this Agreement.
(viii) The Lichtins Office Mortgage Loan and the Lichtins
Office
Subordinate Companion Loan are part of a split loan structure
whereby the
Lichtins Office Mortgage Loan is senior to the Lichtins Office
Subordinate
Companion Loan. The Lichtins Office Mortgage Loan and the Lichtins
Office
Subordinate Companion Loan will be serviced and administered in
accordance with
this Agreement.
(ix) The Talmadge Town Center Mortgage Loan and the Talmadge
Town
Center Subordinate Companion Loan are part of a split loan
structure whereby the
Talmadge Town Center Mortgage Loan is senior to the Talmadge Town
Center
Subordinate Companion Loan. The Talmadge Town Center Mortgage Loan
and the
Talmadge Town Center Subordinate Companion Loan will be serviced
and
administered in accordance with this Agreement.
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.
"10-K Filing Deadline": As defined in Section 10.05.
"Accountant's Statement": As defined in Section 3.15.
"Accrued Component Interest": With respect to each Component of
the
Class X Certificates for any Distribution Date, one month's
interest at the
Class X 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 and the rules and regulations thereunder.
"Additional Disclosure Notification": The form of notification to
be
included with any Additional Form 10-D Disclosure, Additional Form
10-K
Disclosure or Form 8-K Disclosure Information which is attached
hereto as
Exhibit X.
"Additional Form 10-D Disclosure": As defined in Section 10.04.
"Additional Form 10-K Disclosure": As defined in Section 10.05.
"Additional Servicer": Each Affiliate of the Master Servicer
that
Services any of the Mortgage Loans and each Person who is not an
Affiliate of
the Master Servicer, other than the Special Servicer or the
Trustee, who
Services 10% or more of the Mortgage Loans by unpaid principal
balance
calculated in accordance with the provisions of Regulation AB.
"Additional Information": As defined in Section 4.02(a).
"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, the Non-Serviced Whole
Loan
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, the Special 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.
"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.
"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.
"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 (including with respect to the
Non-Serviced
Mortgaged Loan)), 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 or
pursuant to any
bankruptcy, insolvency, or other similar proceeding involving the
related
Mortgagor.
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Appraisal": An appraisal prepared by an Independent MAI
appraiser
with at least five years experience in properties of like kind and
in the same
area, prepared in accordance with 12 C.F.R. 225.64.
"Appraisal Reduction Amount": For any Distribution Date and for
any
Mortgage Loan (including a Serviced Whole Loan but not including
the
Non-Serviced Whole 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 (or Serviced Whole 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 (or Serviced Whole 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 unless such
Property
Advance would be a Nonrecoverable Advance) minus such downward
adjustments as
the Special Servicer may make in accordance with the Servicing
Standard (without
implying any obligation to do so) based upon the Special Servicer's
review of
the Appraisal and such other information as the Special Servicer
may deem
appropriate or (2) in the case of any Mortgage Loan (or Serviced
Whole 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 (or
Serviced Whole 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 (or Serviced Whole Loan) at a per
annum rate
equal to its Mortgage Rate, (B) all unreimbursed Advances (which
shall include,
without limitation, (1) any Advances as to which the advancing
party was
reimbursed from a source other than the related Mortgagor and (2)
any
Unliquidated Advances), with interest thereon at the Advance Rate
in respect of
such Mortgage Loan (or Serviced Whole 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 a longer period
so long 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 (or Serviced Whole 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 as
an expense of the Trust Fund and paid by the Master Servicer out of
the
Collection Account if such Property Advance would be a
Nonrecoverable Advance)
or (b) with respect to any Mortgage Loan (or Serviced Whole 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 Master 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
(or Serviced Whole Loan) will be recalculated in accordance with
this definition
without regard to this sentence. With respect to each Mortgage Loan
(or Serviced
Whole Loan) as to which an Appraisal Reduction Event has occurred
(unless the
Mortgage Loan or Serviced Whole Loan has become a Corrected
Mortgage Loan (if a
Servicing Transfer Event had occurred with respect to the related
Mortgage Loan
or Serviced Whole Loan) and 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 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
or as an
expense of the Trust Fund and paid by the Master Servicer out of
the Collection
Account if such Property Advance would be a Nonrecoverable
Advance), provided,
however, no new or updated Appraisal will be required if the
Mortgage Loan or
REO Property is under contract to be sold within 90 days of such
Appraisal
Reduction Event or anniversary thereof and the Special Servicer
reasonably
believes such sale is likely to close. 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 Master
Servicer shall determine and report to the Special Servicer and the
Trustee the
Appraisal Reduction Amount, if any, with respect to such Mortgage
Loan (or
Serviced Whole Loan) and, in the case of a Serviced Whole Loan,
determined in
accordance with the related Intercreditor Agreement, and each of
those parties
shall be entitled to rely conclusively on such determination by the
Master
Servicer. 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 (or
Serviced Whole Loan) for which an Appraisal Reduction Amount has
been
determined, such Appraisal Reduction Amount will be eliminated. In
addition,
with respect to any Mortgage Loan (or Serviced Whole Loan but not
the
Non-Serviced Whole Loan), as to which an Appraisal Reduction Event
has occurred,
such Mortgage Loan (or Serviced Whole Loan) shall no longer be
subject to the
Appraisal Reduction Amount if (a) such Mortgage Loan (or Serviced
Whole Loan)
has become a Corrected Mortgage Loan (if a Servicing Transfer Event
had occurred
with respect to the related Mortgage Loan or Serviced Whole Loan)
and such
Mortgage Loan (or Serviced Whole Loan) becomes and remains current
for three
consecutive Monthly Payments and (b) no other Appraisal Reduction
Event has
occurred and is continuing.
Appraisal Reduction Amounts with respect to each Serviced Whole
Loan
shall be allocated first to the related Subordinate Companion
Loan(s) (and pro
rata among related Subordinate Companion Loans), if any, and then
pro rata, to
the related Mortgage Loan and any and all related Pari Passu
Companion Loan(s).
Any Appraisal Reduction Amount in respect of the Non-Serviced
Whole
Loan shall be calculated by the applicable Other Special Servicer
or Other
Master Servicer, as applicable, in accordance with and pursuant to
the terms of
the related Other Pooling Agreement.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(including a Serviced Whole Loan, but excluding the Non-Serviced
Mortgaged
Loan)), the earliest of (i) the date on which such Mortgage Loan
becomes a
Modified Loan, (ii) such Mortgage Loan is 60 days or more
delinquent in respect
of any Monthly Payment, except for a Balloon Payment, (iii) such
Mortgage Loan
is delinquent in respect of its Balloon Payment, if any, for (A) 20
days, or (B)
if the related Mortgagor shall have delivered a refinancing
commitment
acceptable to the Special Servicer prior to the date the subject
Balloon Payment
was due, 30 days, (iv) the related Mortgaged Property has become an
REO
Property, (v) a receiver or similar official is appointed and
continues for 60
days in such capacity in respect of the related Mortgaged Property,
(vi) 60 days
after the related Mortgagor is subject to a bankruptcy, insolvency
or similar
proceedings, which, in the case of an involuntary bankruptcy,
insolvency or
similar proceeding (if not dismissed within those 60 days), or
(vii) such
Mortgage Loan remains outstanding five (5) years following any
extension of its
maturity date pursuant to Section 3.27. No Appraisal Reduction
Event may occur
at any time when the aggregate Certificate Principal Amount of all
Classes of
Certificates (other than the Class A Certificates) has been reduced
to zero. 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.
"Appraised Value": As of any date of determination, the
appraised
value of a Mortgaged Property based upon the most recent appraisal
or update
thereof prepared by an Independent Appraiser that is contained in
the related
Servicing File or, in the case of any such Mortgaged Property with
an allocated
loan amount of, or securing a Mortgage Loan (or Serviced Whole
Loan) or relating
to an REO Mortgage Loan, as the case may be, with a Stated
Principal Balance of,
less than $2,000,000, either (a) the most recent appraisal or
update thereof
that is contained in the related Servicing File or (b) the most
recent "desktop"
value estimate performed by the Special Servicer that is contained
in the
related Servicing File. With respect to each Mortgaged Property
secured by the
Non-Serviced Mortgage Loan, the appraised value allocable thereto,
as determined
pursuant to the related Other Pooling Agreement.
"Assignment of Leases": 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.
"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 (and in
the
case of the Non-Serviced Mortgage Loan, only to the extent received
by the Trust
pursuant to the related Intercreditor Agreement), 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 (or with respect to the Non-Serviced Mortgage Loan, by
12:00
p.m., New York City time on 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);
(iv) 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;
and
(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 (unless,
in
either case, such Distribution Date is the final Distribution
Date),
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;
(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);
(d) for the Distribution Date occurring in each March (or
February
if the
Final Distribution Date occurs in such month), the Withheld
Amounts
remitted
to the Lower-Tier Distribution Account pursuant to Section
3.25;
and
(e) with respect to the first Distribution Date, the Closing
Date
Deposit
Amount deposited into the Collection Account pursuant to
Section
2.01(h).
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 or Serviced
Companion
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 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, the Special Servicer 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.
"Bid Allocation": With respect to the Master Servicer or any
sub-servicer and the proceeds of any bid pursuant to Section
7.01(b), the amount
of such proceeds (net of any expenses incurred in connection with
such bid and
the transfer of servicing), multiplied by a fraction equal to (a)
the Servicing
Fee Amount for the Master Servicer or any sub-servicer, as the case
may be, as
of such date of determination, over (b) the aggregate of the
Servicing Fee
Amounts for the Master Servicer and any sub-servicers as of such
date of
determination.
"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 I 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 Loans": The Mortgage Loans identified on Schedule
I.
"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.
"CA Headquarters Intercreditor Agreement": With respect to the
CA
Headquarters Mortgage Loan, the related intercreditor agreement by
and between
the holder of the CA Headquarters Mortgage Loan and the CA
Headquarters
Subordinate Companion Mortgage Loan relating to the relative rights
of the
holders of the CA Headquarters Mortgage Loan and the CA
Headquarters Subordinate
Companion Mortgage Loan, as the same may be amended from time to
time in
accordance with the terms thereof.
"CA
Headquarters Mortgage": The Mortgage securing the CA
Headquarters Mortgage Loan and the CA Headquarters Subordinate
Companion Loan.
"CA Headquarters Mortgage Loan": With respect to the CA
Headquarters
Whole Loan, the Mortgage Loan included in the Trust, which is
designated as
promissory note A and is senior to the CA Headquarters Subordinate
Companion
Loan to the extent set forth in the related Loan Documents and as
provided in
the CA Headquarters Intercreditor Agreement.
"CA Headquarters Subordinate Companion Loan": With respect to the
CA
Headquarters Whole Loan, the related promissory note made by the
related
Mortgagor and secured by the CA Headquarters Mortgage and
designated as
promissory note B, which is not included in the Trust, and is
subordinate to the
CA Headquarters Mortgage Loan to the extent set forth in the
related Loan
Documents and as provided in the CA Headquarters Intercreditor
Agreement.
"CA Headquarters Whole Loan": The CA Headquarters Mortgage
Loan,
together with the CA Headquarters Subordinate Companion Loan, each
of which is
secured by the CA Headquarters Mortgage. References herein to the
CA
Headquarters Whole Loan shall be construed to refer to the
aggregate
indebtedness under the CA Headquarters Mortgage.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class X, Class A-M, Class A-J, 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 Q, Class S, Class LR and Class R
Certificate issued,
authenticated and delivered hereunder.
"Certificate Custodian": Initially, Wells Fargo Bank, N.A.;
thereafter, any other Certificate Custodian acceptable to the
Depository and
selected by the Trustee.
"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.
"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; (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; and
(iii)
notwithstanding anything to the contrary contained herein, if the
Special
Servicer or an Affiliate is the Controlling Class Representative,
it shall be
permitted to act in such capacity and give all consents and
exercise all rights
under this Agreement bestowed upon the Controlling Class
Representative. 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 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 Parties": As defined in Section 10.06.
"Certifying Person": As defined in Section 10.06.
"Certifying Servicer": As defined in Section 10.09.
"Class": With respect to the Certificates, all of the
Certificates
bearing the same alphabetical and numerical class designation, and
with respect
to the Lower-Tier Regular Interests, each interest bearing the
applicable
alphabetical and numerical designation set forth in the Preliminary
Statement
hereto.
"Class A Certificates": The Class A-1 Certificates, the Class
A-2
Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class
A-4 Certificates and the Class A-1A 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 fixed rate equal to
4.061%.
"Class A-1A Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the Authenticating Agent in
substantially the
form set forth in Exhibit A-6 hereto.
"Class A-1A Pass-Through Rate": A per annum fixed rate equal to
5.547%.
"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
5.479%.
"Class A-3 Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the Authenticating Agent in
substantially the
form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to
5.542%.
"Class A-AB Planned Principal Amount": With respect to any
Distribution Date, the planned principal amount for such
Distribution Date
specified in Schedule II relating to the Class A-AB
Certificates.
"Class A-AB 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-AB Pass-Through Rate": A per annum rate equal to 5.535%.
"Class A-4 Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the Authenticating Agent in
substantially the
form set forth in Exhibit A-5 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to
5.560%.
"Class A-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-8 hereto.
"Class A-J Pass-Through Rate": A per annum rate equal to
5.622%.
"Class A-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-7 hereto.
"Class A-M Pass-Through Rate": A per annum rate equal to
5.591%.
"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-10 hereto.
"Class B Pass-Through Rate": A per annum rate equal to 5.662%.
"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-11 hereto.
"Class C Pass-Through Rate": A per annum rate equal to 5.672%.
"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-12 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.701% and (ii) 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-13 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.740% and (ii) 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-14 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.770% and (ii) 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-15 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.839% and (ii) 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-16 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 6.036% and (ii) 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-17 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 6.134% and (ii) 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-18 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the WAC
Rate
minus 0.029%.
"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-19 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) 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-27 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-20 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) 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-21 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) 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-22 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) the WAC Rate.
"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-23 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) the WAC Rate.
"Class Q 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-24 hereto.
"Class Q Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) 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-25 hereto.
"Class S Pass-Through Rate": A per annum rate equal to the lesser
of
(i) 5.282% and (ii) the WAC Rate.
"Class R 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-26 hereto. The Class R Certificates
have no
Pass-Through Rate, Certificate Principal Amount or Notional
Amount.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent in
substantially the
form set forth in Exhibit A-9 hereto.
"Class X Notional Amount": With respect to the Class X
Certificates
and any date of determination, the sum of the then Component
Notional Amounts of
all of the Components.
"Class X Pass-Through Rate": For any Distribution Date, the
weighted
average of Class X 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 Strip Rate": With respect to any Class of 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.
"Clearstream": Clearstream Banking, societe anonyme, and its
successors in interest.
"Closing Date": October 30, 2006.
"Closing Date Deposit Amount": $62,395.21, representing the
aggregate amount of interest that would have accrued at the related
Mortgage
Rates on the applicable Mortgage Loans commencing October 1, 2006
for those
Mortgage Loans that do not require payment of a full month's
interest on the Due
Date in November 2006 or do not have a Due Date until December
2006.
"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 Advance Recoverability Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Advance Recoverability Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Bond Level File": The data file in the "CMSA Bond Level
File"
format substantially in the form of and containing the information
called for
therein, or such other form for the presentation of such
information as may be
approved from time to time by the CMSA for commercial mortgage
securities
transactions generally and, insofar as it requires the presentation
of
information in addition to that called for by the form of the "CMSA
Bond Level
File" available as of the Closing Date on the CMSA website, as is
reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and
containing the
information called for therein, or such other form for the
presentation of such
information as may be approved from time to time by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"CMSA Collateral Summary File" available as of the Closing Date on
the CMSA
website, as is reasonably acceptable to the Trustee and the Master
Servicer.
"CMSA Comparative Financial Status Report": The monthly report
in
"Comparative Financial Status Report" format substantially in the
form of and
containing the information called for therein for the Mortgage
Loans, or such
other form for the presentation of such information as may be
approved from time
to time by the CMSA for commercial mortgage securities transactions
generally
and, insofar as it requires the presentation of information in
addition to that
called for by the form of the "Comparative Financial Status Report"
available as
of the Closing Date on the CMSA website, is reasonably acceptable
to the Master
Servicer or the Special Servicer, as applicable.
"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 approved by the CMSA for commercial
mortgage securities
transactions generally.
"CMSA Financial File": The data file in the "CMSA Financial
File"
format substantially in the form of and containing the information
called for
therein for the Mortgage Loans, or such other form for the
presentation of such
information as may be approved from time to time by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"CMSA Financial File" available as of the Closing Date on the CMSA
website, is
reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of
and containing
the information called for therein for the Mortgage Loans, or such
other form
for the presentation of such information as may be approved from
time to time by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Historical Liquidation Report" available as of the
Closing Date
on the CMSA website, is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification
and Corrected
Mortgage Loan Report" format substantially in the form of and
containing the
information called for therein for the Mortgage Loans, or such
other form for
the presentation of such information as may be approved from time
to time by the
CMSA for commercial mortgage securities transactions generally and,
insofar as
it requires the presentation of information in addition to that
called for by
the form of the "Historical Loan Modification and Corrected
Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Investor Reporting Package (IRP)": (a) The following
seven
electronic files: (i) CMSA Loan Setup File, (ii) CMSA Loan Periodic
Update File,
(iii) CMSA Property File, (iv) CMSA Bond Level File, (v) CMSA
Financial File,
(vi) CMSA Collateral Summary File and (vii) CMSA Special Servicer
Loan File; and
(b) The following ten supplemental reports: (i) CMSA Delinquent
Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage
Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status
Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative
Financial Status Report, (vii) CMSA Servicer Watch List, (viii)
CMSA Loan Level
Reserve/LOC Report, (ix) CMSA NOI Adjustment Worksheet and (x) CMSA
Advance
Recoverability Report.
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the
form of and
containing the information called for therein for the Mortgage
Loans, or such
other form for the presentation of such information as may be
approved from time
to time by the CMSA for commercial mortgage securities transactions
generally
and, insofar as it requires the presentation of information in
addition to that
called for by the form of the "Loan Level Reserve/LOC Report"
available as of
the Closing Date on the CMSA website, is reasonably acceptable to
the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA
Loan
Periodic Update File" format substantially in the form of and
containing the
information called for therein for the Mortgage Loans, or such
other form for
the presentation of such information as may be approved from time
to time by the
CMSA for commercial mortgage securities transactions generally and,
insofar as
it requires the presentation of information in addition to that
called for by
the form of the "CMSA Loan Periodic Update File" available as of
the Closing
Date on the CMSA website, as is reasonably acceptable to the Master
Servicer and
the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup
File"
format substantially in the form of and containing the information
called for
therein for the Mortgage Loans, or such other form for the
presentation of such
information as may be approved from time to time by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA
website, is
reasonably acceptable to the Master Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and
containing the
information called for therein for the Mortgage Loans, or such
other form for
the presentation of such information as may be approved from time
to time by the
CMSA for commercial mortgage securities transactions generally and,
insofar as
it requires the presentation of information in addition to that
called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the
Closing Date
on the CMSA website, is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable.
"CMSA
Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in
the form of
and containing the information called for therein for the Mortgage
Loans, or
such other form for the presentation of such information as may be
approved from
time to time by the CMSA for commercial mortgage securities
transactions
generally and, insofar as it requires the presentation of
information in
addition to that called for by the form of the "CMSA Operating
Statement
Analysis Report" available as of the Closing Date on the CMSA
website, is
reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information
called for
therein for the Mortgage Loans, or such other form for the
presentation of such
information as may be approved from time to time by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"CMSA Property File" available as of the Closing Date on the CMSA
website, is
reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable.
"CMSA Reconciliation of Funds Report": The monthly report in
the
"Reconciliation of Funds" format substantially in the form of and
containing the
information called for therein for the Mortgage Loans, or such
other form for
the presentation of such information as may be approved from time
to time by the
CMSA for commercial mortgage securities transactions generally and,
insofar as
it requires the presentation of information in addition to that
called for by
the form of the "Reconciliation of Funds" available as of the
Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information
called for
therein for the Mortgage Loans, or such other form for the
presentation of such
information as may be approved from time to time by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"CMSA REO Status Report" available as of the Closing Date on the
CMSA website,
is reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As
of
each Determination Date a report, including and identifying each
Non Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review
Guidelines"
approved from time to time by the CMSA in the "CMSA Servicer Watch
List" format
substantially in the form of and containing the information called
for therein
for the Mortgage Loans, or such other form (including other
portfolio review
guidelines) for the presentation of such information as may be
approved from
time to time by the CMSA for commercial mortgage securities
transactions
generally and, insofar as it requires the presentation of
information in
addition to that called for by the form of the "CMSA Servicer Watch
List"
available as of the Closing Date on the CMSA website, is reasonably
acceptable
to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and
containing
the information called for therein for the Mortgage Loans, or such
other form
for the presentation of such information as may be approved from
time to time by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "CMSA Special Servicer Loan File" available as of
the Closing
Date on the CMSA website, is reasonably acceptable to the Special
Servicer.
"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
"Wachovia Bank, National Association as Master Servicer in trust
for Wells Fargo
Bank, N.A., as Trustee, for the registered holders of GS Mortgage
Securities
Corporation II, Commercial Mortgage Pass-Through Certificates,
Series 2006-GG8
and COMPANION LOAN NOTEHOLDERS, as their interests may appear" 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
(without
regard to grace periods) in the month preceding the month in which
such
Distribution Date occurs (or, in the case of the Distribution Date
occurring in
November 2006, 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 Loans": Collectively, the Pari Passu Companion Loans
and
the Subordinate Companion Loans.
"Companion Loan Noteholders": Collectively, the holders of the
Companion Loans.
"Companion Loan Representative": With respect to a Serviced
Whole
Loan, any person (including the Companion Loan Noteholders, if
applicable) with
consulting or consent right with respect to the related Serviced
Whole Loan in
each case only to the extent provided under the related
Intercreditor Agreement.
"Compensating Interest Payments": Any payment required to be made
by
the Master Servicer pursuant to Section 3.13 to cover Prepayment
Interest
Shortfalls.
"Component": Component X-A-1, Component X-A-2, Component X-A-3,
Component X-A-AB, Component X-A-4, Component X-A-1A, Component
X-A-M, Component
X-A-J, Component X-B, Component X-C, Component X-D, Component X-E,
Component
X-F, Component X-G, Component X-H, Component X-J, Component X-K2,
Component X-L,
Component X-M, Component X-N, Component X-O, Component X-P,
Component X-Q and
Component X-S.
"Component X-A-1": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-1 as of any
date of
determination.
"Component X-A-1A": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-1A as of
any date of
determination.
"Component X-A-2": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-2 as of any
date of
determination.
"Component X-A-3": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-3 as of any
date of
determination.
"Component X-A-AB": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-AB as of
any date of
determination.
"Component X-A-4": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-4 as of any
date of
determination.
"Component X-A-M": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-M as of any
date of
determination.
"Component X-A-J": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LA-J as of any
date of
determination.
"Component X-B": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LB as of any
date of
determination.
"Component X-C": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LC as of any
date of
determination.
"Component X-D": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LD as of any
date of
determination.
"Component X-E": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LE as of any
date of
determination.
"Component X-F": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LF as of any
date of
determination.
"Component X-G": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LG as of any
date of
determination.
"Component X-H": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LH as of any
date of
determination.
"Component X-J": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LJ as of any
date of
determination.
"Component X-K": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LK as of any
date of
determination.
"Component X-L": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LL as of any
date of
determination.
"Component X-M": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LM as of any
date of
determination.
"Component X-N": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LN as of any
date of
determination.
"Component X-O": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LO as of any
date of
determination.
"Component X-P": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LP as of any
date of
determination.
"Component X-Q": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
Lower-Tier
Principal Balance of the Lower-Tier Regular Interest LQ as of any
date of
determination.
"Component X-S": One of 24 components of the Class X
Certificates
having a Component Notional Amount equal to the then current
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.
"Condemnation Proceeds": All proceeds received in connection
with
the taking of all or a part of a Mortgaged Property or REO Property
(including
with respect to the Non-Serviced Mortgaged Loan) by exercise of the
power of
eminent domain or condemnation, subject, however, to the rights of
any tenants
and ground lessors, as the case may be, and the terms of the
related Mortgage.
In the case of the Non-Serviced Mortgage Loan, to the extent of any
portion of
such amounts are received by the Trust Fund in connection with the
applicable
Mortgage Loan, pursuant to the allocations set forth in the
related
Intercreditor Agreement.
"Controlling Certificateholder": Each Holder (or Beneficial
Owner,
if applicable) of a Certificate of the Controlling Class as
certified to the
Trustee from time to time by such Holder or Beneficial Owner.
"Controlling Class": As of any time of determination, the Class
of
Certificates outstanding representing the most subordinate
Certificates (other
than the Class 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 CWCapital Asset Management LLC.
"Corporate Trust Office": The office of the Trustee responsible
for
the administration of the Trust Fund located at Wells Fargo Center,
Sixth and
Marquette, Minneapolis, Minnesota 55479-0113 with respect to
certificate
transfers and payments and at 9062 Old Annapolis Road, Columbia,
Maryland
21045-1951 with respect to other trustee and securities
administration services
or the principal trust office of any successor trustee qualified
and appointed
pursuant to Section 8.08.
"Corrected Mortgage Loan": Any Mortgage Loan or Serviced Whole
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
Serviced Whole 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.
"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. For avoidance of doubt, as of the Closing Date, the
Custodian is Wells
Fargo Bank, N.A.
"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 or agent of the Trustee or the Master Servicer, but may
not be the
Depositor or any Affiliate thereof.
"Cut-Off Date": With respect to each Mortgage Loan, the later
of
October 1, 2006 and the date of origination of such Mortgage
Loan.
"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.
"Default Interest": With respect to any Mortgage Loan or
Serviced
Companion Loan, all interest accrued in respect of such Mortgage
Loan or
Serviced 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 Serviced
Companion Loan
outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent
at
least sixty days in respect of its Monthly Payments or delinquent
in respect of
its Balloon Payment, if any, in either case such delinquency to be
determined
without giving effect to any grace period permitted by the related
Mortgage or
Mortgage Note and without regard to any acceleration of payments
under the
related Mortgage and Mortgage Note or (ii) as to which the Master
Servicer or
Special Servicer has, by written notice to the related Mortgagor,
accelerated
the maturity of the indebtedness evidenced by the related Mortgage
Note. For the
avoidance of doubt, a defaulted Companion Loan does not constitute
a "Defaulted
Mortgage Loan".
"Defeasance Loan": Those Mortgage Loans which provide the
related
Mortgagor with the option to defease the related Mortgaged
Property.
"Delinquency Advance Date": The Business Day immediately
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.
"Determination Date": With respect to any Distribution Date,
the
sixth day of the calendar month of the related Distribution Date
or, if the
sixth day is not a Business Day, the next 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 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 10th day of each month (or, if such
10th
day is not a Business Day, the next succeeding Business Day),
provided that the
Distribution Date will be at least four (4) Business Days following
the
Determination Date commencing November, 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"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 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.
"ECM Theater Portfolio Intercreditor Agreement": With respect to
the
ECM Theater Portfolio Mortgage Loan, the related intercreditor
agreement by and
between the holder of the ECM Theater Portfolio Mortgage Loan and
the ECM
Theater Portfolio Subordinate Companion Mortgage Loan relating to
the relative
rights of the holders of the ECM Theater Portfolio Mortgage Loan
and the ECM
Theater Portfolio Subordinate Companion Mortgage Loan, as the same
may be
amended from time to time in accordance with the terms thereof.
"ECM Theater Portfolio Mortgage": The Mortgage securing the ECM
Theater Portfolio Mortgage Loan and the ECM Theater Portfolio
Subordinate
Companion Loan.
"ECM Theater Portfolio Mortgage Loan": With respect to the ECM
Theater Portfolio Whole Loan, the Mortgage Loan included in the
Trust, which is
designated as promissory note A and is senior to the ECM Theater
Portfolio
Subordinate Companion Loan to the extent set forth in the related
Loan Documents
and as provided in the ECM Theater Portfolio Intercreditor
Agreement.
"ECM Theater Portfolio Subordinate Companion Loan": With respect
to
the ECM Theater Portfolio Whole Loan, the related promissory note
made by the
related Mortgagor and secured by the ECM Theater Portfolio Mortgage
and
designated as promissory note B, which is not included in the
Trust, and is
subordinate to the ECM Theater Portfolio Mortgage Loan to the
extent set forth
in the related Loan Documents and as provided in the ECM Theater
Portfolio
Intercreditor Agreement.
"ECM Theater Portfolio Whole Loan": The ECM Theater Portfolio
Mortgage Loan, together with the ECM Theater Portfolio Subordinate
Companion
Loan, each of which is secured by the ECM Theater Portfolio
Mortgage. References
herein to the ECM Theater Portfolio Whole Loan shall be construed
to refer to
the aggregate indebtedness under the ECM Theater Portfolio
Mortgage.
"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, 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 "Aa3" by Moody's (or "A2" by Moody's if such depository
institution or
trust company has a short term unsecured debt rating of at least
"P-1" by
Moody's) and "AA-" by Fitch or, if applicable, the short-term
rating equivalent
thereof, which is at least "P-1" by Moody's and "F-1" by Fitch) 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
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 that the offer, sale or
transfer is
being made in reliance on Rule 144A, (ii) an Institutional
Accredited Investor
or (iii) a Regulation S Investor.
"Environmental Report": The environmental audit report or
reports
with respect to each Mortgaged Property delivered to the related
Originator(s)
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, as operator of the Euroclear
System,
and its successors in interest.
"Event of Default": As defined in Section 7.01.
"Excess Liquidation Proceeds": With respect to any Mortgage
Loan,
the excess of (i) Liquidation Proceeds of that Mortgage Loan or
related REO
Property (including with respect to the Non-Serviced Mortgaged
Loan) net of any
related Liquidation Expenses and any amounts payable to a related
Companion Loan
Noteholder pursuant to the related Intercreditor Agreement, 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 "Wells
Fargo Bank,
N.A., as Trustee, in trust for the registered holders of GS
Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates,
Series 2006-GG8 -
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.
"Exchange Act": The Securities Exchange Act of 1934, as amended
and
the rules and regulations thereunder.
"Fair Lakes Office Park Intercreditor Agreement": With respect
to
the Fair Lakes Office Park Mortgage Loan, the related intercreditor
agreement by
and between the holder of the Fair Lakes Office Park Mortgage Loan
and the Fair
Lakes Office Park Pari Passu Companion Mortgage Loan relating to
the relative
rights of the holders of the Fair Lakes Office Park Mortgage Loan
and the Fair
Lakes Office Park Pari Passu Companion Mortgage Loan, as the same
may be amended
from time to time in accordance with the terms thereof.
"Fair Lakes Office Park Mortgage": The Mortgage securing the
Fair
Lakes Office Park Mortgage Loan and the Fair Lakes Office Park Pari
Passu
Companion Loan.
"Fair
Lakes Office Park Mortgage Loan": With respect to the Fair
Lakes Office Park Whole Loan, the Mortgage Loan included in the
Trust, which is
designated as promissory note A-2 and which is pari passu in right
of payment to
the Fair Lakes Office Park Pari Passu Companion Loan to the extent
set forth in
the related Loan Documents and as provided in the Fair Lakes Office
Park
Intercreditor Agreement.
"Fair Lakes Office Park Noteholders": Collectively, the holder
of
the Fair Lakes Office Park Mortgage Loan and the holder of the Fair
Lakes Office
Park Pari Passu Companion Loan.
"Fair Lakes Office Park Pari Passu Companion Loan": With respect
to
the Fair Lakes Office Park Whole Loan, the related promissory note
made by the
related Mortgagor and secured by the Fair Lakes Office Park
Mortgage and
designated as promissory note A-1, which is not included in the
Trust, and is
pari passu in right of payment to the Fair Lakes Office Park
Mortgage Loan to
the extent set forth in the related Loan Documents and as provided
in the Fair
Lakes Office Park Intercreditor Agreement.
"Fair Lakes Office Park Whole Loan": The Fair Lakes Office Park
Mortgage Loan, together with the Fair Lakes Office Park Pari Passu
Companion
Loan, each of which is secured by the Fair Lakes Office Park
Mortgage.
References herein to the Fair Lakes Office Park Whole Loan shall be
construed to
refer to the aggregate indebtedness under the Fair Lakes Office
Park Mortgage.
"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 Serviced Whole Loan that is a Specially Serviced
Mortgage Loan
or REO Property as the case may be, a determination that there has
been a
recovery of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds,
REO Revenue and other payments or recoveries that the Special
Servicer has
determined in accordance with the Servicing Standard will
ultimately be
recoverable; provided that with respect to the Non-Serviced
Mortgage Loan, the
Final Recovery Determination shall be made by the applicable Other
Special
Servicer in accordance with the related Pooling Agreement.
"Fitch": Fitch, Inc., or its successor in interest.
"Form 8-K Disclosure Information": As defined in Section 10.07.
"Freddie Mac": The Federal Home Loan Mortgage Corporation, and
its
successors in interest.
"GCFP": Greenwich Capital Financial Products, Inc., or any
successor
thereto.
"GCFP Loan Sale Agreement": The Loan Sale Agreement, dated as of
the
Cut-off Date, by and between GCFP and the Depositor.
"Global Certificates": The Class A, Class X, Class A-M, Class
A-J,
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 Q and Class S
Certificates.
"Ground Lease": The ground lease pursuant to which any
Mortgagor
holds a leasehold interest in the related Mortgaged Property.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"GSMC": Goldman Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
"GSMC Loan Sale Agreement": The Loan Sale Agreement, dated as of
the
Cut-off Date, by and between GSMC 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;
and
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, the
Companion Loan Noteholders 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; provided,
however,
that a Person shall not fail to be Independent of the Mortgage Loan
Sellers, the
Depositor, the Trustee, the Master Servicer, the Special Servicer,
any
Mortgagor, the Companion Loan Noteholders or any Affiliate thereof
merely
because such Person is the beneficial owner of 1% or less of any
class of
securities issued by the Depositor, the Mortgage Loan Sellers, the
Trustee, the
Master Servicer, the Special Servicer, any Mortgagor, the Companion
Loan
Noteholders or any Affiliate thereof, as the case may be, provided
that such
ownership constitutes less than 1% of the total assets owned by
such Person.
"Independent Appraiser": An Independent professional real
estate
appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii)
if the state in which the subject Mortgaged Property is located
certifies or
licenses appraisers, is certified or licensed in such state, and
(iii) has a
minimum of five years experience in the subject property type and
market.
"Independent Contractor": Either (i) any Person that would be
an
"independent contractor" with respect to the Trust Fund within the
meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate
investment
trust (except that the ownership tests set forth in that section
shall be
considered to be met by any Person that owns, directly or
indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all
Classes of
Certificates), provided that the Trust Fund does not receive or
derive any
income from such Person and the relationship between such Person
and the Trust
Fund is at arm's length, all within the meaning of Treasury
Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special
Servicer shall
be considered to be an Independent Contractor under the definition
in this
clause (i) unless an Opinion of Counsel (at the expense of the
party seeking to
be deemed an Independent Contractor) addressed to the Master
Servicer and the
Trustee has been delivered to the Trustee to that effect) or (ii)
any other
Person (including the Master Servicer and the Special Servicer) if
the Master
Servicer, on behalf of itself and the Trustee, has received an
Opinion of
Counsel (at the expense of the party seeking to be deemed an
Independent
Contractor) to the effect that the taking of any action in respect
of any REO
Property by such Person, subject to any conditions therein
specified, that is
otherwise herein contemplated to be taken by an Independent
Contractor will not
cause such REO Property to cease to qualify as "foreclosure
property" within the
meaning of Section 860G(a)(8) of the Code (determined without
regard to the
exception applicable for purposes of Section 860D(a) of the Code)
or cause any
income realized in respect of such REO Property to fail to qualify
as Rents from
Real Property (provided that such income would otherwise so
qualify).
"Individual
Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated
under the Act, or an entity in which all the equity owners meet
such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a
Mortgage Loan or a
Serviced Whole Loan (including any amounts paid by the Master
Servicer pursuant
to Section 3.08). In the case of the Non-Serviced Mortgage Loan, to
the extent
of any portion of such proceeds or amounts are received by the
Trust Fund in
connection with the applicable Mortgage Loan, pursuant to the
allocations set
forth in the related Intercreditor Agreement.
"Intercreditor Agreement": Each of the CA Headquarters
Intercreditor
Agreement, the ECM Theater Portfolio Intercreditor Agreement, the
Fair Lakes
Office Park Intercreditor Agreement, the Pinnacle II Intercreditor
Agreement,
the Meridian Apartments Intercreditor Agreement, the Village of
Merrick Park
Intercreditor Agreement, the Lichtins Office Intercreditor
Agreement and the
Talmadge Town Center Intercreditor Agreement.
"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 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).
"Interest Reserve Account": The trust account or subaccount
created
and maintained by the Trustee pursuant to Section 3.25, which shall
be entitled
"Wells Fargo Bank, N.A., as Trustee, in trust for Holders of GS
Mortgage
Securities Corporation II, Commercial Mortgage Pass-Through
Certificates, Series
2006-GG8, 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 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.
"Lichtins Office Intercreditor Agreement": With respect to the
Lichtins Office Mortgage Loan, the related intercreditor agreement
by and
between the holder of the Lichtins Office Mortgage Loan and the
Lichtins Office
Subordinate Companion Mortgage Loan relating to the relative rights
of the
holders of the Lichtins Office Mortgage Loan and the Lichtins
Office Subordinate
Companion Mortgage Loan, as the same may be amended from time to
time in
accordance with the terms thereof.
"Lichtins Office Mortgage": The Mortgage securing the Lichtins
Office Mortgage Loan and the Lichtins Office Subordinate Companion
Loan.
"Lichtins Office Mortgage Loan": With respect to the Lichtins
Office
Whole Loan, the Mortgage Loan included in the Trust, which is
designated as
promissory note A and is senior to the Lichtins Office Subordinate
Companion
Loan to the extent set forth in the related Loan Documents and as
provided in
the Lichtins Office Intercreditor Agreement.
"Lichtins Office Subordinate Companion Loan": With respect to
the
Lichtins Office Whole Loan, the related promissory note made by the
related
Mortgagor and secured by the Lichtins Office Mortgage and
designated as
promissory note B, which is not included in the Trust, and is
subordinate to the
Lichtins Office Mortgage Loan to the extent set forth in the
related Loan
Documents and as provided in the Lichtins Office Intercreditor
Agreement.
"Lichtins Office Whole Loan": The Lichtins Office Mortgage
Loan,
together with the Lichtins Office Subordinate Companion Loan, each
of which is
secured by the Lichtins Office Mortgage. References herein to the
Lichtins
Office Whole Loan shall be construed to refer to the aggregate
indebtedness
under the Lichtins Office Mortgage.
"Liquidation Event": With respect to any Mortgage Loan or
Serviced
Whole Loan, any of the following events: (i) such Mortgage Loan or
Serviced
Whole Loan is paid in full; (ii) a Final Recovery Determination is
made with
respect to such Mortgage Loan or Serviced Whole Loan; (iii) such
Mortgage Loan
is repurchased by the applicable Mortgage Loan Seller pursuant to
Section 6 of
the related Loan Sale Agreement; (iv) such Mortgage Loan or
Serviced Whole Loan
is purchased by the Controlling Class Option Holder pursuant to
Section 3.18(b);
(v) such Mortgage Loan or Serviced Whole Loan is purchased by the
Special
Servicer, the Master Servicer, the Holders of the Controlling
Class, the Holders
of the Class LR Certificates or the Remaining Certificateholder
pursuant to
Section 9.01; (vi) such Mortgage Loan is purchased by the holder of
a mezzanine
loan pursuant to the related intercreditor agreement; (vii) the
taking of a
Mortgaged Property (or portion thereof) by exercise of the power of
eminent
domain or condemnation, or (viii) such Mortgage Loan is purchased
by the
applicable Companion Loan Noteholder pursuant to the applicable
Intercreditor
Agreement or the Other Pooling Agreement. 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 pursuant to Section 9.01; (iii) the 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 holder
of a mezzanine
loan pursuant to the related intercreditor agreements.
"Liquidation Expenses": All customary, reasonable and necessary
costs and expenses incurred by the Master Servicer, the Special
Servicer and the
Trustee in connection with the liquidation of any Specially
Serviced Mortgage
Loan or REO 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).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage
Loan or REO Mortgage Loan as to which the Special Servicer receives
a full,
partial or discounted payoff (or unscheduled partial payment to the
extent such
prepayment is required by the Special Servicer as a condition to a
workout) and
each Specially Serviced Mortgage Loan or REO Property as to which
the Special
Servicer receives Liquidation Proceeds, Insurance Proceeds or
Condemnation
Proceeds, an amount calculated by the application of 1% to the
related payment
or proceeds (exclusive of any portion of such payoff or proceeds
that represents
Default Interest); provided, however, that (a) the Liquidation Fee
with respect
to any Mortgage Loan or Serviced Whole Loan or Mortgaged Property
purchased or
repurchased pursuant to clauses (iii) through (vi) and clause
(viii) of the
first sentence of the definition of Liquidation Event (unless with
respect to
(A) clause (iii), the applicable Mortgage Loan Seller does not
repurchase such
Mortgage Loan until after more than 180 days following its receipt
of notice or
discovery of a Material Breach or Material Defect and (B) clause
(vi), the
holder of a mezzanine loan does not purchase such Mortgage Loan
until after more
than 60 days after the date the related purchase option becomes
exercisable or
if the holder of a mezzanine loan is required to include the
Liquidation Fee as
part of its purchase price) or clauses (ii) or (iv) of the second
sentence of
such definition shall be zero and (b) the Liquidation fee with
respect to each
Mortgage Loan or REO Mortgage Loan repurchased after more than 180
days
following the Mortgage Loan Seller's receipt of notice or discovery
of a
Material Breach or Material Defect shall be in an amount equal to
1% of the
outstanding principal balance of such Mortgage Loan or REO Mortgage
Loan.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds)
received in connection with a Liquidation Event.
"Loan Agreement": With respect to any Mortgage Loan and
Serviced
Companion Loan, the loan agreement, if any, between the related
Originator(s)
and the Mortgagor, pursuant to which such Mortgage Loan and
Serviced Companion
Loan was made.
"Loan Documents": With respect to any Mortgage Loan and
Serviced
Companion Loan, the documents executed or delivered in connection
with the
origination of such Mortgage Loan and Serviced Companion Loan, or
subsequently
added to the related Mortgage File.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available Funds
attributable to
Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, an amount equal to the sum of (x) the sum of (a)
the Loan
Group 1 Principal Shortfall for such Distribution Date and (b) that
portion, if
any, of the Principal Distribution Amount for such Distribution
Date
attributable to Loan Group 1; provided that the Loan Group 1
Principal
Distribution Amount for any Distribution Date shall be reduced by
the amount of
any reimbursements of (i) Nonrecoverable Advances plus interest on
such
Nonrecoverable Advances that are paid or reimbursed from principal
collections
on the Group 1 Mortgage Loans in a period during which such
principal
collections would have otherwise been included in the Loan Group 1
Principal
Distribution Amount for such Distribution Date, (ii)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal
collections on
the Group 1 Mortgage Loans in a period during which such principal
collections
would have otherwise been included in the Loan Group 1 Principal
Distribution
Amount for such Distribution Date and (iii) following the
reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of
(A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed
Reimbursement
Amounts, that would have been paid or reimbursed from principal
collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii)
of the
definition of "Loan Group 2 Principal Distribution Amount" had the
aggregate
amount available for distribution of principal with respect to Loan
Group 2 been
sufficient to make such reimbursements in full, over (B) the
aggregate amount
available for distribution of principal with respect to Loan Group
2 (prior to
giving effect to clauses (i), (ii) and (iii) of the definition of
"Loan Group 2
Principal Distribution Amount") for that Distribution Date
(provided, further,
that, with respect to the amounts identified in clauses (i), (ii)
and (iii)
above, if any of such amounts that were reimbursed from principal
collections on
the Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage
Loan, such recovery will be applied to increase the Loan Group 1
Principal
Distribution Amount for the Distribution Date related to the period
in which
such recovery occurs) and (y) after reduction of the Class A-1A
Certificates to
zero, the Loan Group 2 Principal Distribution Amount (or portion
thereof
remaining after the Class A-1A Certificates has been reduced to
zero and
assuming for purposes of this calculation that the Loan Group 2
Principal
Distribution Amount has been distributed prior to the distribution
of the Loan
Group 1 Principal Distribution Amount on such Distribution
Date).
"Loan Group 1 Principal Shortfall": With respect to any
Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan
Group 1
Principal Distribution Amount for the prior Distribution Date and
(b) the
Certificate Principal Amount of the Class A-1, Class A-2, Class
A-3, Class A-AB
and Class A-4 Certificates, exceeds (2) the aggregate amount
distributed in
respect of principal on the Class A-1, Class A-2, Class A-3, Class
A-AB and
Class A-4 Certificates on the prior Distribution Date. There will
be no Loan
Group 1 Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available Funds
attributable to
Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, an amount equal to the sum of (x) the sum of (a)
the Loan
Group 2 Principal Shortfall for such Distribution Date and (b) that
portion, if
any, of the Principal Distribution Amount for such Distribution
Date
attributable to Loan Group 2; provided that the Loan Group 2
Principal
Distribution Amount for any Distribution Date shall be reduced by
the amount of
any reimbursements of (i) Nonrecoverable Advances plus interest on
such
Nonrecoverable Advances that are paid or reimbursed from principal
collections
on the Group 2 Mortgage Loans in a period during which such
principal
collections would have otherwise been included in the Loan Group 2
Principal
Distribution Amount for such Distribution Date, (ii)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal
collections on
the Group 2 Mortgage Loans in a period during which such principal
collections
would have otherwise been included in the Loan Group 2 Principal
Distribution
Amount for such Distribution Date and (iii) following the
reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of
(A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed
Reimbursement
Amounts, that would have been paid or reimbursed from principal
collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii)
of the
definition of "Loan Group 1 Principal Distribution Amount" had the
aggregate
amount available for distribution of principal with respect to Loan
Group 1 been
sufficient to make such reimbursements in full, over (B) the
aggregate amount
available for distribution of principal with respect to Loan Group
1 (prior to
giving effect to clauses (i), (ii) and (iii) of the definition of
"Loan Group 1
Principal Distribution Amount") for that Distribution Date
(provided, further,
that, with respect to the amounts identified in clauses (i), (ii)
and (iii)
above, if any of such amounts that were reimbursed from principal
collections on
the Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage
Loan, such recovery will be applied to increase the Loan Group 2
Principal
Distribution Amount for the Distribution Date related to the period
in which
such recovery occurs) and (y) after reduction of the Class A-4
Certificates to
zero, the Loan Group 1 Principal Distribution Amount (or portion
thereof
remaining after the Class A-4 Certificates has been reduced to zero
and assuming
for purposes of this calculation that the Loan Group 1 Principal
Distribution
Amount has been distributed prior to the distribution of the Loan
Group 2
Principal Distribution Amount on such Distribution Date).
"Loan Group 2 Principal Shortfall": With respect to any
Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan
Group 2
Principal Distribution Amount for the prior Distribution Date and
(b) the
Certificate Principal Amount of the Class A-1A Certificates,
exceeds (2) the
aggregate amount distributed in respect of principal on the Class
A-1A
Certificates on the prior Distribution Date. There will be no Loan
Group 2
Principal Shortfall on the first Distribution Date.
"Loan Number" or "Loan No.": 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 Sale Agreement": The GSMC Loan Sale Agreement or the GCFP
Loan
Sale Agreement.
"Loan-to-Value Ratio": With respect to any Mortgage Loan or
Whole
Loan, as of any date of determination, the fraction, expressed as a
percentage,
the numerator of which is the then unpaid principal balance of such
Mortgage
Loan or Whole Loan, as applicable, 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(s)
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 "Wells Fargo
Bank, N.A., as
Trustee, in trust for Holders of GS Mortgage Securities Corporation
II,
Commercial Mortgage Pass-Through Certificates, Series 2006-GG8,
Lower-Tier
Distribution Account" and which must be an Eligible Account. The
Lower-Tier
Distribution Account shall be an asset of the Lower-Tier REMIC.
"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)(ii), and shall be further permanently reduced on such
Distribution Date
by all Realized Losses deemed to have been allocated thereto on
such
Distribution Date pursuant to Section 4.01(f).
"Lower-Tier Regular Interests": The Class LA-1, Class LA-2,
Class
LA-3, Class LA-AB, Class LA-4, Class LA-1A, Class LA-M, Class LA-J,
Class LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class
LJ, Class LK,
Class LL, Class LM, Class LN, Class LO, Class LP, Class LQ and
Class LS
Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust
Fund
consisting of the Mortgage Loans, collections thereon, any related
REO Property
(or a beneficial interest in the applicable portion of the "REO
Property" under
the Other Pooling Agreement related to the Non-Serviced Mortgage
Loan) 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
Closing Date
Deposit Amount, the Lower-Tier Distribution Account, the related
REO Account and
the Excess Liquidation Proceeds Reserve Account, in each case
excluding amounts
allocable to any Serviced Companion Loan.
"MAI": Member of the Appraisal Institute.
"Manager": With respect to any Mortgage Loan, any property
manager
for the related Mortgaged Properties.
"Master Servicer": Wachovia Bank, National Association, a
national
banking association, or its successor in interest, or any successor
Master
Servicer appointed as herein provided.
"Master Servicer Remittance Date": With respect to any
Distribution
Date, the Business Day immediately preceding such Distribution
Date.
"Material Breach": As defined in Section 2.03(a).
"Material Document Defect": As defined in Section 2.03(a).
"Maturity Date": With respect to each Mortgage Loan, the
maturity
date as set forth on the Mortgage Loan Schedule.
"Meridian Apartments Intercreditor Agreement": With respect to
the
Meridian Apartments Mortgage Loan, the related intercreditor
agreement by and
between the holder of the Meridian Apartments Mortgage Loan and the
Meridian
Apartments Subordinate Companion Mortgage Loan relating to the
relative rights
of the holders of the Meridian Apartments Mortgage Loan and the
Meridian
Apartments Subordinate Companion Mortgage Loan, as the same may be
amended from
time to time in accordance with the terms thereof.
"Meridian Apartments Mortgage": The Mortgage securing the
Meridian
Apartments Mortgage Loan and the Meridian Apartments Subordinate
Companion Loan.
"Meridian Apartments Mortgage Loan": With respect to the
Meridian
Apartments Whole Loan, the Mortgage Loan included in the Trust,
which is
designated as promissory note A and is senior to the Meridian
Apartments
Subordinate Companion Loan to the extent set forth in the related
Loan Documents
and as provided in the Meridian Apartments Intercreditor
Agreement.
"Meridian Apartments Subordinate Companion Loan": With respect
to
the Meridian Apartments Whole Loan, the related promissory note
made by the
related Mortgagor and secured by the Meridian Apartments Mortgage
and designated
as promissory note B, which is not included in the Trust, and is
subordinate to
the Meridian Apartments Mortgage Loan to the extent set forth in
the related
Loan Documents and as provided in the Meridian Apartments
Intercreditor
Agreement.
"Meridian Apartments Whole Loan": The Meridian Apartments
Mortgage
Loan, together with the Meridian Apartments Subordinate Companion
Loan, each of
which is secured by the Meridian Apartments Mortgage. References
herein to the
Meridian Apartments Whole Loan shall be construed to refer to the
aggregate
indebtedness under the Meridian Apartments Mortgage.
"Mezz Cap B Loan": The Lichtins Office Subordinate Companion
Loan
and the Talmadge Town Center Subordinate Companion Loan.
"Modified Loan": Any Mortgage Loan or any Serviced Whole Loan as
to
which any Servicing Transfer Event has occurred and which has been
modified by
the Special Servicer pursuant to Section 3.27 in a manner that:
(a)
affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing Monthly
Payments
current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Loan
Documents,
results in
a release of the lien of the related Mortgage on any material
portion of
the related Mortgaged Property without a corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less
than the
fair market value (as is) of the property to be released, as
determined
by an appraisal delivered to the Special Servicer (at the
expense of
the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer,
otherwise
materially impairs the security for such Mortgage Loan or
Serviced
Whole Loan or materially reduces the likelihood of timely
payment
of amounts
due thereon.
"Monthly Payment": With respect to any Mortgage Loan or
Serviced
Whole Loan, as applicable, (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.
"Moody's": Moody's Investors Service, Inc. or its successors in
interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating
a first lien on or first priority ownership interest in a Mortgaged
Property
securing a Note and the related note(s) in favor of a Companion
Loan Noteholder.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(b), collectively the following documents:
(1) (A) the original executed Note for such Mortgage Loan,
endorsed
(without
recourse, representation or warranty, express or implied) to
the
order of
"Wells Fargo Bank, N.A., as trustee for the registered holders
of
GS
Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through
Certificates, Series 2006-GG8" or in blank, and further showing
a
complete,
unbroken chain of endorsement from the originator (if such
originator
is not the applicable Mortgage Loan Seller) (or, alternatively,
if the
original executed Note has been lost, a lost note affidavit and
indemnity
with a copy of such Note), and (B) in the case of a Whole Loan,
a copy of
the executed Note for the related Companion Loans;
(2) an original or copy of the Mortgage, together with originals
or
copies of
any and all intervening assignments thereof, in each case
(unless
the particular item has not been returned from the applicable
recording
office) with evidence of recording indicated thereon;
(3) an original or copy of any related Assignment of Leases (if
such
item is a
document separate from the Mortgage), together with originals
or
copies of
any and all intervening assignments thereof, in each case
(unless
the particular item has not been returned from the applicable
recording
office) with evidence of recording indicated thereon;
(4) an original executed assignment, in recordable form (except
for
recording
information not yet available if the instrument being assigned
has not been returned
from the applicable recording office), of (A) the
Mortgage
and (B) any related Assignment of Leases (if such item is a
document
separate from the Mortgage), in favor of "Wells Fargo Bank,
N.A.,
as trustee
for the registered holders of GS Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates,
Series
2006-GG8"
(or, in each case, a copy thereof, certified to be the copy of
such
assignment submitted for recording);
(5) an
original or copy of the assignment of all unrecorded
documents
relating to the Mortgage Loan, in favor of "Wells Fargo Bank,
N.A., as
trustee for the registered holders of GS Mortgage Securities
Corporation II, Commercial Mortgage Pass-Through Certificates,
Series
2006-GG8";
(6) originals or copies of final written modification agreements
in
those
instances where the terms or provisions of the Note for such
Mortgage
Loan (or, if applicable, any Note of a Whole Loan) or the
related
Mortgage
have been modified as to a monetary term or other material term
thereof,
in each case (unless the particular item has not been returned
from the
applicable recording office) with evidence of recording
indicated
thereon if
the instrument being modified is a recordable document;
(7) the original or a copy of the policy or certificate of
lender's
title
insurance issued in connection with such Mortgage Loan (or, if
such
policy has
not been issued, a "marked-up" pro forma title policy marked as
binding
and countersigned by the title insurer or its authorized agent,
or
an
irrevocable, binding commitment to issue such title insurance
policy);
(8) with respect to Mortgage Loans secured by hospitality
properties
only,
filed copies (with evidence of filing) of any prior effective
UCC
Financing
Statements in favor of the originator of such Mortgage Loan or
in favor
of any assignee prior to the Trustee (but only to the extent
the
applicable
Mortgage Loan Seller had possession of such UCC Financing
Statements
prior to the Closing Date) and an original UCC-2 or UCC-3
assignment
thereof, as appropriate, in form suitable for filing, in favor
of "Wells
Fargo Bank, N.A., in its capacity as trustee for the registered
holders of
GS Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through Certificates, Series 2006-GG8";
(9) an original or copy of the related Ground Lease relating to
such
Mortgage
Loan, if any;
(10) an original or copy of the related loan agreement, if any;
(11) an original of the related guaranty of payment under, or a
copy
of the
original letter of credit in connection with, such Mortgage
Loan,
if
any;
(12) an original or copy of the lock box agreement or cash
management
agreement relating to such Mortgage Loan, if any;
(13) an original or copy of the environmental indemnity from
the
related
Mortgagor, if any;
(14) an original or copy of the 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;
(15) an original assignment of the related security agreement
(if
such item
is a document separate from the Mortgage and if such item is
not
included
in the assignment described in clause (5)), in favor of "Wells
Fargo
Bank, N.A., in its capacity as trustee for the registered holders
of
GS
Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through
Certificates, Series 2006-GG8";
(16) in the case of a Whole Loan, a copy of the related
Intercreditor Agreement;
(17) in the case of any Loan as to which there exists a related
mezzanine
loan, the original or a copy of the related intercreditor
agreement;
(18) an original or copy of any related Environmental Insurance
Policy;
and
(19) with respect to hospitality properties, a signed copy of
the
franchise
agreement (if any), franchisor comfort letter (if any) and
transfer
documents for such comfort letter;
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.
Notwithstanding anything to the contrary contained herein, with
respect to the Non-Serviced Mortgage Loan, the preceding document
delivery
requirements with respect to clauses (2) through (15) and (17)
through (19)
above shall be met by the delivery by the applicable Mortgage Loan
Seller of
copies of mortgage file delivered under the applicable Other
Pooling Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and from time to time held
in the Trust
Fund, the mortgage loans originally so transferred, assigned and
held being
identified on the Mortgage Loan Schedule as of the Cut-Off Date.
Such term shall
include any REO Mortgage Loan or defeased Mortgage Loan.
"Mortgage Loan Schedule": The list of Mortgage Loans included in
the
Trust Fund as of the Closing Date being attached hereto as Exhibit
B, which list
shall set forth the following information with respect to each
Mortgage Loan:
(i) the Loan Number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Servicing Fee
Rate (separately identifying any primary servicing fee rate or
subservicing fee rate included in the Servicing Fee Rate, and in
the
case of each Whole Loan, separately identifying the Servicing
Fee
Rate applicable to each Companion Loan in such Whole Loan);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether the Mortgage Loan is cross-collateralized and
the cross-collateralized group it belongs to; and
(xiv) whether such Mortgage Loan is part of a Whole Loan, in
which case the information required by clauses (iii), (iv),
(v),
(vi), (vii), (viii) and (ix)(B) shall also be set forth for the
Companion Loans in such Whole Loan.
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.
"Mortgage Loan Seller": Each of GCFP and GSMC, and their
respective
successors in interest.
"Mortgage Rate": With respect to any Mortgage Loan or Serviced
Whole
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 Default
Rate with respect to any Mortgage Loan or the related note(s) held
by a
Companion Loan Noteholder. 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
(exclusive of Default Interest) 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 that 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
(unless, in either
case, the related Distribution Date is the final Distribution
Date), 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 and the related Serviced Companion Loan(s), including any REO
Property
(including with respect to the Non-Serviced Mortgaged Loan),
consisting of a fee
simple estate, and, with respect to certain Mortgage Loans and the
related
Serviced Companion Loan(s), 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 and the related
note(s) in favor of a Companion Loan Noteholder(s), including,
without
limitation, any Person that has acquired the related Mortgaged
Property and
assumed the obligations of the original obligor under such Note and
the related
note(s) in favor of a Companion Loan Noteholder(s).
"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 the Servicing Standard, 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 or Serviced Whole Loan (including an
REO Mortgage
Loan) net of the amount of (i) Liquidation Expenses incurred with
respect
thereto and, (ii) with respect to proceeds received in connection
with the
taking of a Mortgaged Property (or portion thereof) by the power of
eminent
domain in condemnation, amounts required to be applied to the
restoration or
repair of the related Mortgaged Property.
"Net Mortgage Rate": With respect to any Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate
for such
Mortgage Loan minus the related 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.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Property Advance. Workout-Delayed Reimbursement
Amounts shall
constitute a Nonrecoverable Advance only when the Person making
such
determination in accordance with the procedures specified in the
definition of
Nonrecoverable P&I Advance or Nonrecoverable Property Advance,
as applicable,
and taking into account factors such as all other outstanding
Advances, either
(a) has determined that such Workout-Delayed Reimbursement Amounts,
would not
ultimately be recoverable from late collections or any other
recovery on or in
respect of the related Mortgage Loan or Whole Loan or REO Mortgage
Loan, or (b)
has determined that such Workout-Delayed Reimbursement Amount,
along with any
other Workout-Delayed Reimbursement Amounts (that have not been
reimbursed to
the party that made such Advance) or unreimbursed Nonrecoverable
Advances, would
not be ultimately recoverable from the principal portion of future
general
collections on the Mortgage Loans and REO Properties.
"Nonrecoverable P&I Advance": With respect to any Mortgage
Loan, any
P&I Advance previously made or proposed to be made in respect
of such Mortgage
Loan or a related REO Mortgage Loan by the Master Servicer or the
Trustee, or in
the case of the Non-Serviced Mortgage Loan, made by the Other
Master Servicer,
the Master Servicer or the Trustee, which P&I Advance such
party or the Special
Servicer has determined pursuant to and in accordance with Section
4.06, would
not or will not be ultimately recoverable from late payments,
Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or any
other recovery
on or in respect of such Mortgage Loan, Whole Loan or REO Mortgage
Loan, as the
case may be.
"Nonrecoverable Property Advance": Any Property Advance
previously
made or proposed to be made in respect of a Mortgage Loan or REO
Property by the
Master Servicer, the Special Servicer or the Trustee, or in the
case of the
Non-Serviced Mortgage Loan, made by the Other Master Servicer or
the Other
Trustee, which Property Advance such party has determined pursuant
to and in
accordance with Section 3.22 (or in the case of the Special
Servicer made, or to
be made, by any one of them), in its reasonable, good faith
judgment, will not
be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in
respect of such
Mortgage Loan, Whole Loan or REO Property, as the case may be. Any
Property
Advance that is not required to be repaid by the related Mortgagor
under the
terms of the related Loan Documents shall be deemed to be a
Nonrecoverable
Advance for purposes of the Master Servicer's, the Special
Servicer's or the
Trustee's entitlement to reimbursement for such Advance.
"Non-Serviced Companion Loan": The Fair Lakes Office Park
Companion
Loan.
"Non-Serviced Mortgage Loan": The Fair Lakes Office Park
Mortgage
Loan.
"Non-Serviced Whole Loan": The Fair Lakes Office Park Whole
Loan.
"Non-Serviced Whole Loan Servicing Fee Rate": The servicing fee
rate
paid to the Other Master Servicer under the Other Pooling Agreement
in
connection with the servicing of the Non-Serviced Whole Loan.
"Non-U.S. Person": A person other than a U.S. Person.
"Note": With respect to any Mortgage Loan as of any date of
determination, the note or other evidence of indebtedness and/or
agreements
evidencing the indebtedness of a Mortgagor under such Mortgage
Loan, including
any amendments or modifications, or any renewal or substitution
notes, as of
such date.
"Notice of Termination": Any of the notices given to the Trustee
by
the Master Servicer, the 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 Certificates, a notional principal amount equal to
the Class X
Notional Amount and (b) in the case of each Component, the amount
set forth in
the applicable definition thereof.
"Officers' Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, as the case may be,
or an
authorized officer of the Depositor, and delivered to the
Depositor, the
Trustee, the Master Servicer or the Special Servicer, as the case
may be.
"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 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") or (c) 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).
"Original Class X Notional Amount": $4,242,880,299.
"Original Notional Amount": The Original Class X Notional
Amount.
"Originator": Each of Greenwich Capital Financial Products,
Inc.,
Goldman Sachs Commercial Mortgage Capital, L.P., Metropolitan Life
Insurance
Company, German American Capital Corporation, NY Credit Funding I,
LLC and
MetLife Insurance Company of Connecticut (f/k/a The Travelers
Insurance
Company).
"Other Depositor": The depositor under the Other Pooling
Agreement
which, as of the date hereof, is Deutsche Mortgage & Asset
Receiving
Corporation.
"Other Indemnified Parties": As defined in Section 6.03.
"Other Master Servicer": The "master servicer" under the Other
Pooling Agreement which, as of the date hereof, is Capmark Finance
Inc.
"Other Pooling Agreement": The pooling and servicing agreement
dated
as of October 1, 2006 among Deutsche Mortgage & Asset Receiving
Corporation, as
depositor, Capmark Finance Inc., as master servicer, J.E. Robert
Company, Inc.,
as special servicer and LaSalle Bank National Association, as
trustee, as from
time to time amended, supplemented or modified, related to the
Deutsche Mortgage
& Asset Receiving Corporation, Commercial Mortgage Pass-Through
Certificates,
Series 2006-CD3.
"Other Special Servicer": The "special servicer" under the
Other
Pooling Agreement which, as of the date hereof, is J.E. Robert
Company, Inc.
"Other Trust": The trust created under the Other Pooling
Agreement.
"Other Trustee": The "trustee" under the Other Pooling
Agreement
which, as of the date hereof, is LaSalle Bank National
Association.
"Ownership Interest": Any record or beneficial interest in a
Class
LR or Class R 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.
"Pari Passu Companion Loan": The Fair Lakes Office Park Pari
Passu
Companion Loan.
"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 A-AB
Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-1A
Pass-Through
Rate, the Class X Pass-Through Rate, the Class A-M Pass-Through
Rate, the Class
A-J 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, the
Class Q
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
Serviced
Whole 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, and excluding any such amounts allocable
to a
Companion Loan pursuant to the related Intercreditor Agreement.
"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.
"PCAOB": The Public Company Accounting Oversight Board.
"Performance Certification": As defined in Section 10.06.
"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 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 or any
securities issued as part of a securitization of a Pari Passu
Companion Loan:
(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 September 30, 2008), 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 Fitch
or
Moody's,
otherwise acceptable to Fitch or Moody's, as applicable, as
confirmed
in writing that such investment would not, in and of itself,
result in
a downgrade, qualification or withdrawal of the then current
ratings
assigned to the Certificates); provided, however, that the
investments described in this clause must (A) have a predetermined
fixed
dollar
amount of principal due at maturity that cannot vary or change,
(B)
if such
investments have a variable rate of interest, such interest
rate
must be
tied to a single interest rate index plus a fixed spread (if
any)
and must
move proportionately with that index, and (C) such investments
must not
be subject to liquidation prior to their maturity;
(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 Moody's or Fitch, otherwise acceptable to Moody's or
Fitch, as
applicable, as confirmed in writing that such investment would
not, in
and of itself, result in a downgrade, qualification or
withdrawal
of the
then current ratings assigned to the Certificates or any
securities
issued as
part of a securitization of a Pari Passu Companion Loan);
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 Moody's
or Fitch, otherwise acceptable to Moody's or Fitch, as
applicable, as confirmed in writing that such investment would not,
in and
of itself,
result in a downgrade, qualification or withdrawal of the then
current
ratings assigned to the Certificates or any securities issued
as
part of a
securitization of a Pari Passu Companion Loan) 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 Moody's or Fitch,
otherwise
acceptable to Moody's or Fitch, as applicable, as confirmed in
writing
that such investment would not, in and of itself, result in a
downgrade,
qualification or withdrawal of the then current ratings
assigned
to the Certificates or any securities issued as part of a
securitization of a Pari Passu Companion Loan) 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 Wells Fargo Prime Investment 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 Moody's or Fitch,
otherwise
acceptable to Moody's or Fitch, as applicable, as confirmed in
writing
that such investment would not, in and of itself, result in a
downgrade,
qualification or withdrawal of the then current ratings
assigned
to the Certificates or any securities issued as part of a
securitization of a Pari Passu Companion Loan); and
(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 or any
securities
issued as
part of a securitization of a Pari Passu Companion Loan;
provided, however, that 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 the 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, (e) a
Plan or any
Person investing the assets of a Plan and (f) any partnership if
any of its
interests are owned (or are permitted under the applicable
partnership agreement
to be owned), directly or indirectly (other than through a U.S.
corporation) by
a Non-U.S. Person.
"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.
"Pinnacle II Intercreditor Agreement": With respect to the
Pinnacle
II Mortgage Loan, the related intercreditor agreement by and
between the holder
of the Pinnacle II Mortgage Loan and the Pinnacle II Subordinate
Companion
Mortgage Loan relating to the relative rights of the holders of the
Pinnacle II
Mortgage Loan and the Pinnacle II Subordinate Companion Mortgage
Loan, as the
same may be amended from time to time in accordance with the terms
thereof.
"Pinnacle II Mortgage": The Mortgage securing the Pinnacle II
Mortgage Loan and the Pinnacle II Subordinate Companion Loan.
"Pinnacle II Mortgage Loan": With respect to the Pinnacle II
Whole
Loan, the Mortgage Loan included in the Trust, which is designated
as promissory
note A and is senior to the Pinnacle II Subordinate Companion Loan
to the extent
set forth in the related Loan Documents and as provided in the
Pinnacle II
Intercreditor Agreement.
"Pinnacle II Subordinate Companion Loan": With respect to the
Pinnacle II Whole Loan, the related promissory note made by the
related
Mortgagor and secured by the Pinnacle II Mortgage and designated as
promissory
note B, which is not included in the Trust, and is subordinate to
the Pinnacle
II Mortgage Loan to the extent set forth in the related Loan
Documents and as
provided in the Pinnacle II Intercreditor Agreement.
"Pinnacle II Whole Loan": The Pinnacle II Mortgage Loan,
together
with the Pinnacle II Subordinate Companion Loan, each of which is
secured by the
Pinnacle II Mortgage. References herein to the Pinnacle II Whole
Loan shall be
construed to refer to the aggregate indebtedness under the Pinnacle
II Mortgage.
"Plan": As defined in Section 5.02(k).
"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.
"Prepayment Interest Excess": With respect to any Distribution
Date,
for each Mortgage Loan or Serviced Companion 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 or Serviced
Companion
Loan after the Due Date in such Prepayment Period, the amount of
interest that
accrued for such Mortgage Loan or Serviced Companion 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 or Serviced
Companion Loan,
inclusive, to the extent collected from the related Mortgagor
(exclusive of any
related Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall": With respect to any
Distribution
Date, for each Mortgage Loan or Serviced Companion 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 or Serviced
Companion
Loan prior to the Due Date in such Prepayment Period, the amount of
interest,
net of the Servicing Fee and the Other Master Servicer Fee, to the
extent not
collected from the related Mortgagor, that would have accrued on
such Mortgage
Loan or Serviced Companion 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 or
Serviced
Companion 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 Scheduled Principal Distribution Amount for such
Distribution Date;
(B) the Unscheduled Payments of any Mortgage Loan on deposit
in the Collection Account as of the related Determination Date;
and
(C) the Principal Shortfall, if any, for such Distribution
Date;
provided that the Principal Distribution Amount for any
Distribution Date shall
be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or
reimbursed from
principal collections on the Mortgage Loans in a period during
which such
principal collections would have otherwise been included in the
Principal
Distribution Amount for such Distribution Date and (ii)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal
collections on
the Mortgage Loans in a period during which such principal
collections would
have otherwise been included in the Principal Distribution Amount
for such
Distribution Date (provided that, in the case of clause (i) and
(ii) above, if
any of the amounts that were reimbursed from principal collections
on the
Mortgage Loans are subsequently recovered on the related Mortgage
Loan, such
recovery will increase the Principal Distribution Amount for the
Distribution
Date related to the period in which such recovery occurs).
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 or Serviced Whole Loan which is received in
advance of its
scheduled Due Date and which is not accompanied by an amount of
interest
representing the full amount of scheduled interest due on any date
or dates in
any month or months subsequent to the month of prepayment other
than any amount
paid in connection with the release of the related Mortgaged
Property through
defeasance.
"Principal Shortfall": For any Distribution Date, 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 G, Class H,
Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
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, the Companion Loan
Noteholders, a
designee of the Depositor and any Person who provides the Trustee
with an
Investor Certification.
"Property Advance": As to any Mortgage Loan or Serviced Whole
Loan,
any advance made by the Master Servicer, the Special Servicer or
the Trustee in
respect of Property Protection Expenses, together with all other
customary,
reasonable and necessary "out of pocket" costs and expenses
(including
attorneys' fees and fees and expenses of real estate brokers)
incurred by the
Master Servicer, the Special Servicer or the Trustee in connection
with the
servicing and administration of a Mortgage Loan (other than the
Non-Serviced
Mortgage Loan) or Serviced Whole Loan, if a default is imminent
thereunder or a
default, delinquency or other unanticipated event has occurred with
respect
thereto, or in connection with the administration of any REO
Property,
including, but not limited to, the cost of (a) compliance with the
obligations
of the Master Servicer, the Special Servicer or the Trustee, if
any, set forth
in Section 2.03, Section 3.04 and Section 3.08, (b) the
preservation, insurance,
restoration, protection and management of a Mortgaged Property, (c)
obtaining
any Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, (d) any
enforcement or judicial proceedings with respect to a Mortgaged
Property,
including foreclosures, (e) any Appraisal or any other appraisal or
update
thereof expressly permitted or required to be obtained hereunder
and (f) the
operation, management, maintenance and liquidation of any REO
Property; provided
that, notwithstanding anything to the contrary, "Property Advances"
shall not
include allocable overhead of the Master Servicer, the Special
Servicer or the
Trustee, such as costs for office space, office equipment, supplies
and related
expenses, employee salaries and related expenses and similar
internal costs and
expenses, or costs and expenses incurred by any such party in
connection with
its purchase of any Mortgage Loan or REO Property pursuant to any
provision of
this Agreement, or the applicable Intercreditor Agreement. Each
reference to the
payment or reimbursement of a Property Advance shall be deemed to
include,
whether or not specifically referred to, payment or reimbursement
of interest
thereon at the Advance Rate from and including the date of the
making of such
Advance through and including the date of payment or
reimbursement.
"Property Protection Expenses": Any costs and expenses incurred
by
the Master Servicer, the Special Servicer or the Trustee pursuant
to Sections
3.04, 3.08, 3.10(f), 3.10(g), 3.10(i) and 3.17(b) or indicated
herein as being a
cost or expense of the Lower-Tier REMIC (in respect of the Mortgage
Loans and
the Serviced Companion Loans), in each case to be advanced by the
Master
Servicer, the Special Servicer or the Trustee, as applicable.
"Prospectus": The prospectus dated October 6, 2006, as
supplemented
by the Prospectus Supplement relating to the Public Global
Certificates.
"Prospectus Supplement": The prospectus supplement dated October
17,
2006, relating to the Public Global Certificates.
"Public Global Certificate": Each of the Class A-1, Class A-2,
Class
A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C,
Class D, Class E and Class F 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 (or REO
Property), a price equal to the following: (a) the outstanding
principal balance
of such Mortgage Loan (or the related REO Mortgage Loan) as of the
date of
purchase; plus (b) all accrued and unpaid interest on such Mortgage
Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate in effect
from time to
time through the Due Date in the Collection Period of purchase (or,
in the case
of any Mortgage Loan for which the Due Date occurs on a day other
than the first
day of each month, the Due Date occurring in the month in which
such Collection
Period ends); plus (c) all related unreimbursed Property Advances
(including any
Property Advances and Advance Interest Amounts that were reimbursed
out of
general collections on the Mortgage Loans); 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 (to the extent not otherwise included in the amount
described in
clause (c) above) and (ii) any unpaid Special Servicing Fees and
Additional
Trust Fund Expenses in respect of the related Mortgage Loan and, if
the
applicable Mortgage Loan Seller repurchases such Mortgage Loan more
than 180
days following the earlier of the responsible party's discovery or
receipt of
notice of the subject Material Breach or Material Document Defect,
as the case
may be, a Liquidation Fee. With respect to any REO Property that
relates to a
Whole Loan, the Purchase Price for the Trust Fund's interest in
such REO
Property shall be the amount calculated in accordance with the
first sentence of
this definition in respect of the related REO Mortgage Loan.
"Qualified Bidder": As defined in Section 7.01(b).
"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 at least
"A3" by Moody's (or, if not rated by Moody's, at least "A" by AM
Best or "A-" by
S&P) and "A-" by Fitch and (ii) in the case of the fidelity
bond and the errors
and omissions insurance required to be maintained pursuant to
Section 3.08(c), a
company that shall have a claim paying ability rated by each Rating
Agency no
lower than two ratings categories (without regard to pluses or
minuses) lower
than the highest rating of any outstanding Class of Certificates
from time to
time, but in no event lower than "A3" by Moody's (or, if not rated
by Moody's,
at least "A" by AM Best or "A-" by S&P) and "A-" by Fitch,
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 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).
"Rated Final Distribution Date": The Distribution Date occurring
in
November 2039.
"Rating Agency": Either of Moody's or Fitch. References herein
to
the highest long-term unsecured debt rating category of Moody's or
Fitch shall
mean "Aaa" with respect to Moody's and "AAA" with respect to Fitch,
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.
Notwithstanding the foregoing, when used with respect to any
securities issued
as part of a securitization of a Pari Passu Companion Loan, Rating
Agency means
any of the foregoing rating agencies that rated such
securities.
"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 or any certificate
issued pursuant
to a securitization of any Pari Passu Companion Loan. 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.
"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 (for
purposes of this calculation only, not giving effect to any
reductions of the
Stated Principal Balance for principal payments received on the
Mortgage Loans
that were used to reimburse the Master Servicer, the Special
Servicer or the
Trustee from general collections of principal on the Mortgage Loans
for
Workout-Delayed Reimbursement Amounts, to the extent such
Workout-Delayed
Reimbursement Amounts are not otherwise determined to be
Nonrecoverable
Advances) after giving effect to any payments of principal received
or advanced
with respect to the Due Date occurring immediately prior to such
Distribution
Date. Realized Losses may be reversed as provided in Section
4.01(g).
"Record Date": With respect to each Distribution Date and each
Class
of Certificates, the close of business on the last day of the month
immediately
preceding the month in which such Distribution Date occurs, or if
such day is
not a Business Day, the immediately preceding Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, 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 Q, Class S and Class X Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have been
provided by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(January 7, 2005))
or by the staff of the Commission, or as may be provided by the
Commission or
its staff from time to time.
"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.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit T attached
hereto. For
clarification purposes, multiple parties can have responsibility
for the same
Relevant Servicing Criteria. With respect to a Servicing Function
Participant
engaged by the Master Servicer, the Special Servicer or the
Trustee, the term
"Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or
the Trustee.
"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
Principal
Amounts of the Class A, Class A-J, Class B, Class C, Class D and
Class E
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;
(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 and the related
Companion Loan
Noteholders, which shall be entitled "CWCapital Asset Management
LLC, or the
applicable successor Special Servicer, as Special Servicer, for the
benefit of
Wells Fargo Bank, N.A., as trustee, in trust for registered Holders
of GS
Mortgage Securities Corporation II, Commercial Mortgage
Pass-Through
Certificates, Series 2006-GG8 and the related Companion Loan
Noteholders REO
Account." Any such account or accounts shall be an Eligible
Account.
"REO Extension": As defined in Section 3.17.
"REO Mortgage Loan": Any Mortgage Loan or Serviced Whole Loan as
to
which the related Mortgaged Property has become an REO Property
(including with
respect to the Non-Serviced Mortgaged Loan).
"REO Proceeds": With respect to any REO Property and the related
REO
Mortgage Loan, all revenues received by the Special Servicer or
Other 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 on behalf of the Trust Fund and any related Companion Loan
Noteholders
through foreclosure, deed in lieu of foreclosure or otherwise
(other than
respect to the Non-Serviced Mortgage Loan unless indicated
otherwise).
"Reportable Event": As defined in Section 10.07.
"Reporting Servicer": As defined in Section 10.10.
"Request for Release": A request for a release signed by a
Servicing
Officer, substantially in the form of Exhibit E hereto.
"Residual Certificates": The Class R and Class LR Certificates.
"Responsible Officer": Any officer of the Corporate Trust Office
of
the Trustee (and, in the event that the Trustee is the Certificate
Registrar or
the Paying Agent, of the Certificate Registrar or the Paying Agent,
as
applicable) assigned to the Corporate Trust Office with direct
responsibility
for the administration of this Agreement and also, with respect to
a particular
matter, any other officer to whom such matter is referred because
of such
officer's knowledge of and familiarity with the particular
subject.
"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.
"Review Package": A package of documents consisting of a
memorandum
outlining the analysis and recommendation (in accordance with the
Servicing
Standard) of the Master Servicer or the Special Servicer, as the
case may be,
with respect to the matters that are the subject thereof, and
copies of all
relevant documentation.
"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., and its successors in interest.
"Sarbanes-Oxley Act" means the Sarbanes-Oxley Act of 2002 and
the
rules and regulations of the Commission promulgated thereunder
(including any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification": As defined in Section 10.06.
"Scheduled 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
and Balloon Payments which became due on the related Due Date
(if
received by the Master Servicer by the Business Day prior to
the
Master Servicer Remittance Date, or advanced by the Master
Servicer
or the Trustee, in respect of such Distribution Date) with
respect
to the Mortgage Loans; and
(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.
"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-1, Class A-2, Class
A-3,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, 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 Q and Class S Certificates,
collectively.
"Service(s)" or "Servicing": In accordance with Regulation AB,
the
act of servicing and administering the Mortgage Loans or any other
assets of the
Trust by an entity that meets the definition of "servicer" set
forth in Item
1101 of Regulation AB and is subject to the disclosure requirements
set forth in
Item 1108 of Regulation AB. For clarification purposes, any
uncapitalized
occurrence of this term shall have the meaning commonly understood
by
participants in the commercial mortgage-backed securities
market.
"Serviced Companion Loan": The CA Headquarters Companion Loan,
the
CM Theater Portfolio Companion Loan, the Pinnacle Refi II Companion
Loan, the
Meridian Apartments Companion Loan, the Lichtins Companion Loan,
the Village at
Merrick Park Companion Loan and the Talmadge Town Center Companion
Loan.
"Serviced Whole Loan": The CA Headquarters Whole Loan, the ECM
Theater Portfolio Whole Loan, the Pinnacle Refi II Whole Loan, the
Meridian
Apartments Whole Loan, the Lichtins Office Whole Loan and the
Talmadge Town
Center Whole Loan.
"Servicer Indemnified Party": As defined in Section 8.05(c).
"Servicer Reports": The CMSA Delinquent Loan Status Reports,
the
CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, the CMSA
Historical Liquidation Report, the CMSA REO Status Report, the CMSA
Servicer
Watch List and Portfolio Review Guidelines, the CMSA NOI Adjustment
Worksheet,
the CMSA Comparative Financial Status Report, the CMSA Operating
Statement
Analysis Report and the CMSA Loan Level Reserve/LOC Report.
"Servicing Criteria": The criteria set forth in paragraph (d)
of
Item 1122 of Regulation AB, as such may be amended from time to
time.
"Servicing Fee": With respect to each Mortgage Loan or Serviced
Whole Loan (or any successor REO Mortgage Loan with respect
thereto) and for any
Distribution Date, the amount accrued at the related Servicing Fee
Rate on the
Stated Principal Balance of such Mortgage Loan or such Serviced
Whole Loan, as
the case may be, and otherwise calculated on a 30/360 Basis and
shall be
prorated for partial periods.
"Servicing Fee Amount": With respect to each sub-servicer and
any
date of determination, the aggregate of the products obtained by
multiplying,
for each Mortgage Loan or Serviced Whole Loan serviced by such
sub-servicer, (a)
the Stated Principal Balance of such loan as of the end of the
immediately
preceding Collection Period and (b) the servicing fee rate
specified in the
related sub-servicing agreement for such loan. With respect to the
Master
Servicer and any date of determination, the aggregate of the
products obtained
by multiplying, for each Mortgage Loan or Serviced Whole Loan (a)
the Stated
Principal Balance of such loan as of the end of the immediately
preceding
Collection Period and (b) the difference between the Servicing Fee
Rate for such
loan and the servicing fee rate (if any) applicable to such loan as
specified in
any sub-servicing agreement related to such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and
Companion Loan, the per annum rate set forth on the Mortgage Loan
Schedule.
"Servicing File": Any documents (other than documents required to
be
part of the related Mortgage File) related to the origination or
the servicing
of the Mortgage Loans that are in the possession of or under the
control of the
applicable Mortgage Loan Seller, including but not limited to
appraisals,
environmental reports, engineering reports, legal opinions, and the
applicable
Mortgage Loan Seller's asset summary, delivered to the Master
Servicer or the
Special Servicer; provided that no information that is proprietary
to the
related Mortgage Loan Seller nor any draft documents, privileged or
internal
communications, credit underwriting, due diligence analysis or data
shall be
required to be delivered as part of the Servicing File.
Notwithstanding anything
to the contrary contained herein, with respect to the Non-Serviced
Mortgage
Loan, the Servicing File shall consist of a copy of the Servicing
File delivered
under the Other Pooling Agreement.
"Servicing Function Participant" Any Person, other than the
Master
Servicer, the Special Servicer and the Trustee, that is performing
activities
that address the Servicing Criteria, unless such Person's
activities relate only
to 5% or less of the Mortgage Loans by unpaid principal balance
calculated in
accordance with the provisions of Regulation AB.
"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-Released Bid": As defined in Section 7.01(b).
"Servicing-Retained Bid": As defined in Section 7.01(b).
"Servicing Standard": With respect to the Master Servicer or
the
Special Servicer, to service and administer the Mortgage Loans and
Companion
Loans (including the Serviced Whole Loans but excluding the
Non-Serviced
Mortgage Loan) and any REO Properties that such party is obligated
to service
and administer pursuant to this Agreement on behalf of the Trust
Fund and the
Trustee (as trustee for Certificateholders and, with respect to
each Serviced
Whole Loan, on behalf of the Certificateholders and the related
Companion Loan
Noteholders, as a collective whole) as determined in the good faith
and
reasonable judgment of the Master Servicer or the Special Servicer,
as the case
may be: (i) in accordance with the higher of the following
standards of care:
(A) with the same care, skill, prudence and diligence with which,
the Master
Servicer or the Special Servicer, as the case may be, services and
administers
comparable mortgage loans with similar borrowers and comparable REO
properties
for other third party portfolios (giving due consideration to the
customary and
usual standards of practice of prudent institutional commercial
mortgage lenders
servicing their own mortgage loans and REO properties), and (B)
with the same
care, skill, prudence and diligence with which, the Master Servicer
or the
Special Servicer, as the case may be, services and administers
comparable
mortgage loans owned by the Master Servicer or the Special
Servicer, as the case
may be, in either case, exercising reasonable business judgment and
acting in
accordance with applicable law, the terms of this Agreement and the
terms of the
respective Mortgage Loan or Companion Loan; (ii) with a view to:
the timely
recovery of all payments of principal and interest, including
Balloon Payments,
under the Mortgage Loans or Serviced Whole Loan or, in the case of
the Special
Servicer and (1) Specially Serviced Mortgage Loan or (2) a Mortgage
Loan or
Serviced Whole Loan as to which the related Mortgaged Property has
become an REO
Property, the maximization of recovery on the Mortgage Loan to
the
Certificateholders (as a collective whole) (or, if any Companion
Loan is
involved, with a view to the maximization of recovery on such
Companion Loan to
the Certificateholders and the related Companion Loan Noteholders
(as a
collective whole, it being understood that the interest of any
Subordinate
Companion Loan is a subordinate interest, subject to the terms and
conditions of
the related Intercreditor Agreement) of principal and interest,
including
Balloon Payments, on a present value basis (the relevant
discounting of
anticipated collections that will be distributable to the
Certificateholders
(or, in the case of any Companion Loan, to the Certificateholders
and the
related Companion Loan Noteholders) to be performed at the related
Mortgage Rate
(or, in the case of any Serviced Whole Loan, at the weighted
average of the
Mortgage Rates for such Serviced Whole Loan); and (iii) without
regard to (A)
any relationship, including as lender on any other debt, that the
Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof,
may have with any of the related Mortgagors, or any Affiliate
thereof, or any
other party to this Agreement; (B) the ownership of any Certificate
(or any
Companion Loan or other indebtedness secured by the related
Mortgaged Property
or any certificate backed by a Companion Loan) or any mezzanine
loan by the
Master Servicer or the Special Servicer, as the case may be, or any
Affiliate
thereof; (C) the obligation of the Master Servicer or the Special
Servicer, as
the case may be, to make Advances; (D) the right of the Master
Servicer or the
Special Servicer, as the case may be, or any Affiliate, to receive
compensation
or reimbursement of costs hereunder generally or with respect to
any particular
transaction; and (E) the ownership, servicing or management for
others of any
other mortgage loan or real property not subject to this Agreement
by the Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof.
"Servicing Transfer Event": With respect to any Mortgage Loan or
any
Serviced Whole Loan, the occurrence of any of the events described
in clauses
(a) through (h) of the definition of "Specially Serviced Mortgage
Loan," except
in the case of a Whole Loan, if the related Companion Loan
Noteholder and/or the
Companion Loan Representative, as applicable under the related
Intercreditor
Agreement, is exercising its cure rights under the related
Intercreditor
Agreement, if applicable.
"Significant Obligor": There are no "significant obligors" for
GS
Mortgage Securities Corporation II, Commercial Mortgage Pass
Through
Certificates, Series 2006-GG8.
"Single Purpose Entity": An entity, other than an individual,
whose
organizational documents and/or the related Loan Documents provide
substantially
to the effect that: (i) it was formed or organized solely for the
purpose of
either owning and operating the Mortgaged Property or Properties
securing one or
more Mortgage Loans or Whole Loans, (ii) it may not engage in any
business
unrelated to such Mortgaged Property or Properties, (iii) it will
not have any
assets other than those related to its interest in and operation of
such
Mortgaged Property, (iv) it may not incur indebtedness other than
incidental to
its ownership and operation of the applicable Mortgaged Property or
Properties,
(v) it will maintain its own books and records and accounts
separate and apart
from any other Person, (vi) it will hold itself out as a legal
entity, separate
and apart from any other Person, and (vii) in the case of such an
entity whose
sole purpose is owning or operating a Mortgaged Property, it will
have an
independent director or, if such entity is a partnership or a
limited liability
company, at least one general partner or limited liability company
member
thereof, as applicable, which shall itself be a "single purpose
entity" (having
as its sole asset its interest in the Single Purpose Entity) with
an independent
director.
"Special Servicer": CWCapital Asset Management, a Massachusetts
limited liability company, or its successor in interest, or any
successor
Special Servicer appointed as provided herein.
"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 and on the same interest
accrual basis
respecting which any related interest payment due or deemed due on
the related
Mortgage Loan is computed; provided, further, that such fee for the
first
Interest Accrual Period shall be appropriately prorated to reflect
the fact that
the first Interest Accrual Period is less than a full month.
"Special Servicing Fee Rate": A rate equal to 0.25% per annum
(other
than with respect to the Non-Serviced Mortgage Loan).
"Specially Serviced Mortgage Loan": Any Mortgage Loan or
Serviced
Whole Loan (other than the Non-Serviced Mortgage Loan) as to which
any of the
following events has occurred, except in the case of any of the
Whole Loans, if
either the related Companion Loan Noteholder and/or the Companion
Loan
Representative, as applicable under the related Intercreditor
Agreement, is
exercising its cure rights in accordance with the Intercreditor
Agreement, if
applicable, (within the applicable cure period set forth
therein):
(a) the related Mortgagor has failed to make when due any
Monthly
Payment or
a Balloon Payment, which failure continues, or the Master
Servicer
determines, in its reasonable, good faith judgment, will
continue,
unremedied (without regard to any grace period):
(i)
except in the case of a Balloon Mortgage Loan delinquent
in respect of its Balloon Payment, for 60 days beyond the date
on
which the subject payment was due, or
(ii) in the case of a delinquent Balloon Payment, (A) 60 days
beyond the date on which such Balloon Payment was due (except
as
described in clause B below) or (B) in the case of a Mortgage
Loan
or Serviced Whole Loan delinquent with respect to the Balloon
Payment as to which the related borrower delivered a
refinancing
commitment acceptable to the Special Servicer prior to the date
60
days after the Balloon Payment was due, for 120 days beyond the
date
on which the Balloon Payment was due (or such shorter period
beyond
the date on which that Balloon Payment as due during which the
refinancing is scheduled to occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special
Servicer, with the consent of the applicable Controlling Class
Representative, subject to Sections 3.26 and 3.31) shall have
determined,
in
accordance with the Servicing Standard, based on communications
with
the
related Mortgagor, that a default in the making of a Monthly
Payment
on such
Mortgage Loan or Serviced Whole Loan, including a Balloon
Payment,
is likely
to occur and is likely to remain unremedied (without regard to
any grace
period) for at least the applicable period contemplated by
clause (a)
of this definition; or
(c) there shall have occurred a default (other than as described
in
clause (a)
above and provided that any determination that there is a
default
with respect to any Mortgage Loan solely by reason of the
failure
of the
related Mortgagor to maintain or cause to be maintained
insurance
coverage
against damages or losses arising from acts of terrorism may
only
be made by
the Special Servicer, subject to the second paragraph of
Section
3.08(a)) that (i) in the judgment of the Master Servicer or the
Special
Servicer materially impairs the value of the related Mortgaged
Property
as security for the Mortgage Loan or Serviced Whole Loan or
otherwise
materially adversely affects the interests of
Certificateholders
(or, in
the case of any Whole Loan, the related Companion Loan
Noteholders), and (ii) continues unremedied for the applicable
grace
period
under the terms of the Mortgage Loan (or, if no grace period is
specified
and the default is capable of being cured, for 30 days);
provided
that any default that results in acceleration of the related
Mortgage
Loan without the application of any grace period under the
related
Loan Documents shall be deemed not to have a grace period; and
provided,
further, that any default requiring a Property Advance will be
deemed to
materially and adversely affect the interest of the
Certificateholders (or in the case of any Whole Loan, the
related
Companion
Loan Noteholder); or
(d) the Master Servicer or the Special Servicer (in the case of
the
Special
Servicer, with the consent of the applicable Controlling Class
Representative, subject to Sections 3.26 and 3.31) has determined
that (i)
a default
(other than as described in clause (b) of this definition)
under
the
Mortgage Loan is imminent, (ii) such default will materially
impair
the value
of the related Mortgaged Property as security for such Mortgage
Loan or
Serviced Whole Loan or otherwise materially adversely affects
the
interests
of Certificateholders (or, in the case of the Serviced Whole
Loans, the
related Companion Loan Noteholders), and (iii) the default is
likely to
continue unremedied for the applicable grace period under the
terms of
such Mortgage Loan or Serviced Whole Loan or, if no grace
period
is
specified and the default is capable of being cured, for 30
days;
provided
that any default that results in acceleration of the related
Mortgage
Loan without the application of any grace period under the
related
Loan Documents shall be deemed not to have a grace period; and
provided,
further, that any determination that a Servicing Transfer Event
has
occurred under this clause (d) with respect to any Mortgage
Loan
solely by
reason of the failure of the related Mortgagor to maintain or
cause to
be maintained insurance coverage against damages or losses
arising
from acts of terrorism may only be made by the Special
Servicer,
subject to
the second paragraph of Section 3.08(a); or
(e) a decree or order of a court or agency or supervisory
authority
having
jurisdiction in the premises in any 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, marshaling of assets and
liabilities or
similar
proceedings, or for the winding up or liquidation or its
affairs,
shall have
been entered against the related Mortgagor and such decree or
order
shall have remained in force and not dismissed for a period of
60
days;
(f) the related Mortgagor consents to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment or
debt,
marshalling of assets and liability or similar proceedings of
or
relating
to such Mortgagee or of or relating to all or substantially all
of its
property; or
(g) the related Mortgagor shall admit in writing its inability
to
pay its
debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property;
provided, however, that a Mortgage Loan or Serviced Whole Loan will
cease to be
a Specially Serviced Mortgage Loan, when a Liquidation Event has
occurred with
respect to such Mortgage Loan or Serviced Whole Loan, when the
related Mortgaged
Property has become an REO Property or, so long as at such time no
circumstance
identified in clauses (a) through (h) above exists that would cause
the Mortgage
Loan or Serviced Whole Loan to continue to be characterized as a
Specially
Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
of
this
definition, the related Mortgagor has made three consecutive full
and
timely
Monthly Payments under the terms of such Mortgage Loan or
Serviced
Whole 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, extension, waiver or amendment granted or
agreed
to by the
Master Servicer or the Special Servicer pursuant to Section
3.27);
(x) with respect to the circumstances described in clauses (b),
(d),
(e), (f)
and (g) of this definition, such circumstances cease to exist
in
the good
faith, reasonable judgment of the Special Servicer, but, with
respect to
any bankruptcy or insolvency proceedings described in clauses
(e), (f)
and (g), no later than the entry of an order or decree
dismissing
such
proceeding;
(y) with respect to the circumstances described in clause (c)
of
this
definition, such default is cured as determined by the Special
Servicer
in its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h)
of
this
definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master
Servicer's
determination and the Master Servicer may conclusively rely on the
Special
Servicer's determination as to whether a Servicing Transfer Event
has occurred
giving rise to a Mortgage Loan's becoming a Specially Serviced
Mortgage Loan. If
any Mortgage Loan that is in a Serviced Whole Loan becomes a
Specially Serviced
Mortgage Loan, then each Companion Loan in such Serviced Whole Loan
shall also
become a Specially Serviced Mortgage Loan. If any Companion Loan
that is
included in a Serviced Whole Loan becomes a Specially Serviced
Mortgage Loan,
the related Mortgage Loan in such Serviced Whole Loan shall also
become a
Specially Serviced Mortgage Loan.
"Startup Day": The day designated as such pursuant to Section
2.07(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan,
at
any date of determination, an amount equal to (a) the principal
balance as of
the Cut-Off Date of such Mortgage Loan, minus (b) the sum of (i)
the principal
portion of each Monthly Payment due on such Mortgage Loan after the
Cut-Off Date
and prior to such date of determination, if received from the
Mortgagor or
advanced by the Master Servicer or the Trustee, (ii) all
Unscheduled Payments
with respect to such Mortgage Loan and (iii) any adjustment thereto
as a result
of a reduction of principal by a bankruptcy court or as a result of
a
modification reducing the principal amount due on such Mortgage
Loan. The Stated
Principal Balance of a Mortgage Loan with respect to which title to
the related
Mortgaged Property has been acquired by the Trust Fund is equal to
the principal
balance thereof outstanding on the date on which such title is
acquired less any
Net REO Proceeds allocated to principal on such Mortgage Loan. The
Stated
Principal Balance of a Specially Serviced Mortgage Loan with
respect to which
the Special Servicer has made a Final Recovery Determination is
zero.
"Statement to Certificateholders": As defined in Section
4.02(a).
"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.
"Subcontractor": Any vendor, subcontractor or other Person that
is
not responsible for the overall servicing (as "servicing" is
commonly understood
by participants in the mortgage-backed securities market) of
Mortgage Loans but
performs one or more discrete functions of the Servicing Criteria
with respect
to Mortgage Loans under the direction or authority of the Master
Servicer, the
Special Servicer, the Trustee, an Additional Servicer, or a
Sub-Servicer.
"Subordinate Certificates": Any of the Class A-M, Class A-J,
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 Q and Class S
Certificates.
"Subordinate Companion Loans": Collectively, CA Headquarters
Subordinate Companion Loan, the ECM Theater Portfolio Subordinate
Companion
Loan, the Pinnacle Refi II Subordinate Companion Loan, the Meridian
Apartments
Subordinate Companion Loan, the Village of Merrick Park Subordinate
Companion
Loan, the Lichtins Office Subordinate Companion Loan and the
Talmadge Town
Center Subordinate Companion Loan.
"Sub-Servicer": Any Person that Services Mortgage Loans on behalf
of
the Master Servicer, the Special Servicer or an Additional Servicer
and is
responsible for the performance (whether directly or through
Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing
functions
required to be performed by the Master Servicer, the Special
Servicer or an
Additional Servicer under this Agreement, with respect to some or
all of the
Mortgage Loans, that are identified in the Servicing Criteria.
"Sub-Servicing Agreement": The written contract between the
Master
Servicer, an Additional Servicer or the Special Servicer, as the
case may be,
and any Sub-Servicer relating to servicing and administration of
Mortgage Loans
as provided in Section 3.01(c).
"Successful Bidder": As defined in Section 7.01(b).
"Supplemental Servicer Schedule": With respect to the Mortgage
Loans
to be serviced by the Master Servicer, a list attached hereto as
Schedule VI,
which list sets forth the following information with respect to
each Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the original balance;
(iv) the original and remaining amortization term;
(v) whether such Mortgage Loan has a guarantor;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve or
escrowed funds;
(viii) the grace period with respect to both default interest
and late payment charges;
(ix) whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an operation and maintenance plan exists and, if
so, what repairs are required;
(xi) whether a cash management agreement or lock-box agreement
is in place; and
(xii) the number of units, pads, rooms or square feet of the
Mortgaged Property.
Such list may be in the form of more than one list,
collectively
setting forth all of the information required.
"Talmadge Town Center Intercreditor Agreement": With respect to
the
Talmadge Town Center Mortgage Loan, the related intercreditor
agreement by and
between the holder of the Talmadge Town Center Mortgage Loan and
the Talmadge
Town Center Subordinate Companion Mortgage Loan relating to the
relative rights
of the holders of the Talmadge Town Center Mortgage Loan and the
Talmadge Town
Center Subordinate Companion Mortgage Loan, as the same may be
amended from time
to time in accordance with the terms thereof.
"Talmadge Town Center Mortgage": The Mortgage securing the
Talmadge
Town Center Mortgage Loan and the Talmadge Town Center Subordinate
Companion
Loan.
"Talmadge Town Center Mortgage Loan": With respect to the
Talmadge
Town Center Whole Loan, the Mortgage Loan included in the Trust,
which is
designated as promissory note A and is senior to the Talmadge Town
Center
Subordinate Companion Loan to the extent set forth in the related
Loan Documents
and as provided in the Talmadge Town Center Intercreditor
Agreement.
"Talmadge Town Center Subordinate Companion Loan": With respect
to
the Talmadge Town Center Whole Loan, the related promissory note
made by the
related Mortgagor and secured by the Talmadge Town Center Mortgage
and
designated as promissory note B, which is not included in the
Trust, and is
subordinate to the Talmadge Town Center Mortgage Loan to the extent
set forth in
the related Loan Documents and as provided in the Talmadge Town
Center
Intercreditor Agreement.
"Talmadge Town Center Whole Loan": The Talmadge Town Center
Mortgage
Loan, together with the Talmadge Town Center Subordinate Companion
Loan, each of
which is secured by the Talmadge Town Center Mortgage. References
herein to the
Talmadge Town Center Whole Loan shall be construed to refer to the
aggregate
indebtedness under the Talmadge Town Center Mortgage.
"Tax Returns": The federal income tax return on IRS Form 1066,
U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return,
including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders
of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to
be filed on
behalf of each of the Upper-Tier REMIC or Lower-Tier REMIC under
the REMIC
Provisions, together with any and all other information, reports or
returns that
may be required to be furnished to the Certificateholders or filed
with the IRS
or any other governmental taxing authority under any applicable
provisions of
federal, state or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund
is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR
Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Treasury Regulations": Applicable final or temporary regulation
of
the U.S. Department of the Treasury.
"Trust": 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
(including with respect to the Non-Serviced Mortgaged Loan) (to the
extent of
the Trust Fund's interest therein); (iv) all revenues received in
respect of any
REO Property (including with respect to the Non-Serviced Mortgaged
Loan) (to the
extent of the Trust Fund's interest therein); (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) the Trustee's rights in 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
Escrow Accounts and Lock-Box Accounts and all proceeds of the
Mortgage Loans
deposited in the Whole Loan Custodial Account, the Collection
Account, the
Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Reserve
Account and
any REO Account, including reinvestment income thereon (in each
case, to the
extent of the Trust Fund's interest therein); (ix) the Trustee's
rights in any
environmental indemnity agreements relating to the Mortgaged
Properties and the
Trustee's rights under the Intercreditor Agreements; (x) the
Lower-Tier Regular
Interests; and (xi) the Closing Date Deposit Amount.
"Trust REMIC": Each of the Lower-Tier REMIC and the Upper-Tier
REMIC.
"Trustee": Wells Fargo Bank, N.A., 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 any
successor
REO Mortgage Loan with respect thereto) and for any Distribution
Date, the
amount accrued at the related Trustee Fee Rate on the Stated
Principal Balance
of such Mortgage Loan or such REO Mortgage Loan, as the case may
be, and
otherwise calculated on a 30/360 Basis and shall be prorated for
partial
periods.
"Trustee Fee Rate": A rate equal to 0.00049% per annum.
"Underwriters": Goldman, Sachs & Co., Greenwich Capital
Markets,
Inc., Banc of America Securities LLC, Credit Suisse Securities
(USA) LLC, Morgan
Stanley & Co. Incorporated and Wachovia Capital Markets,
LLC.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person
that made the
Advance hereunder, on the one hand, and the Trust Fund, on the
other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
(B) and (C)
of Section 3.06(a) but that has not been recovered from the
Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan
or REO
Property in respect of which the Advance was made.
"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
"Wells Fargo
Bank, N.A., as Trustee, in trust for Holders of GS Mortgage
Securities
Corporation II, Commercial Mortgage Pass-Through Certificates,
Series 2006-GG8,
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;
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 (c) in
the case of
any of the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A,
Class A-M, Class A-J, 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 Q
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.
"Whole Loan": Each of the CA Headquarters Whole Loan, the ECM
Theater Portfolio Whole Loan, the Fair Lakes Office Park Whole
Loan, the
Pinnacle Refi II Whole Loan, the Meridian Apartments Whole Loan,
the Village of
Merrick Park Whole Loan, the Lichtins Office Whole Loan and the
Talmadge Town
Center Whole Loan. (and shall include any successor REO Mortgage
Loans).
"Whole Loan Custodial Account": With respect to any Serviced
Whole
Loan, the segregated account or sub-accounts created and maintained
by the
Master Servicer pursuant to Section 3.04A on behalf of the holders
of such Whole
Loan, which shall be entitled "Wachovia Bank, National Association,
as Master
Servicer, in trust for Wells Fargo Bank, N.A., as Trustee, for the
registered
holders of GS Mortgage Securities Corporation II, Commercial
Mortgage
Pass-Through Certificates, Series 2006-GG8, and COMPANION LOAN
NOTEHOLDERS, as
their interests may appear."
"Withheld Amounts": As defined in Section 3.25.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advance made with respect to such
Mortgage Loan
on or before the date such Mortgage Loan becomes (or, but for the
making of
three monthly payments under its modified terms, would then
constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and
unpaid)
interest on such Advances, to the extent that (i) such Advance is
not reimbursed
to the Person who made such Advance on or before the date, if any,
on which such
Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount
of such
Advance becomes a future obligation of the Mortgagor to pay under
the terms of
modified Loan Documents. That any amount constitutes all or a
portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit
the right of
any Person hereunder to determine in the future that such amount
instead
constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect
to
each Corrected Mortgage Loan (other than with respect to the
Non-Serviced
Mortgage Loan).
"Workout Fee Rate": A fee of 1.0% 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
and
Serviced Companion Loan, the yield maintenance charge or prepayment
premium, if
any, payable under the related Note (in the case of a Mortgage
Loan) or the
related note(s) in favor of the related Companion Loan Noteholder
(in the case
of a Serviced Companion Loan) 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 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) 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, (without
duplication) as
a recovery of (i) any related Property Advance and P&I Advance
not previously
reimbursed to the Person that made such Advance, (ii) related
Nonrecoverable
Advances and any Advance Interest Amount and (iii) related
Workout-Delayed
Reimbursement Amounts, in the case of each of clause (ii) and (iii)
that were
paid from collections on the Mortgage Loans and resulted in
principal
distributed to the Certificateholders being reduced as a result of
the first
proviso in the definition of each of "Principal Distribution
Amount," "Loan
Group 1 Principal Distribution Amount" and/or "Loan Group 2
Principal
Distribution Amount" 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 Escrow Payments to the
extent then
required to be held in escrow; sixth, as a recovery of any Yield
Maintenance
Charge 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 then due and owing under such
Mortgage Loan and
ninth, as a recovery of any remaining principal of such Mortgage
Loan to the
extent of its entire remaining unpaid principal balance. For
avoidance of doubt,
the provisions of this Section 1.02(d) shall not affect the
application of
Liquidation Proceeds to pay the Liquidation Fee to the Special
Servicer pursuant
to Section 3.12(b).
(e) 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,
(without duplication) as a recovery of (i) any related Property
Advance and P&I
Advance not previously reimbursed to the Person that made such
Advance, (ii)
related Nonrecoverable Advances and any Advance Interest Amount,
and (iii)
related Workout-Delayed Reimbursement Amounts, in cases of each of
(ii) and
(iii), that were paid from collections on the Mortgage Loans and
resulted in
principal distributed to the Certificateholders being reduced as a
result of the
first proviso in the definition of "Principal Distribution Amount,"
"Loan Group
1 Principal Distribution Amount" and/or "Loan Group 2 Principal
Distribution
Amount"; 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 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.
(f) 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 accordance with the
Servicing
Standard.
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
A-M, Class
A-J, 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 Q 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. For purposes of this Agreement the Class LR and
the Class R
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, sell, transfer, set over and otherwise
convey to the
Trustee in trust 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), 5(c) and 6 (and to the extent related to the foregoing) 7,
11, 12, 14, 15,
16 and 21 of each Loan Sale Agreement, (iii) the Intercreditor
Agreements and
(iv) all Escrow 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), subject to any related Intercreditor Agreement. Such
assignment of the
Non-Serviced Mortgage Loan are further subject to the terms and
conditions of
the related Other Pooling Agreement and the Fair Lakes Office Park
Intercreditor
Agreement. The transfer of the Mortgage Loans and the related
rights and
property accomplished hereby is absolute and, notwithstanding
Section 11.08, is
intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage
Loan Seller
(pursuant to the related Loan Sale Agreement) to deliver to and
deposit with the
Trustee or a Custodian appointed thereby, on or before the Closing
Date, the
Mortgage File for each Mortgage Loan, with copies to be delivered
to the Master
Servicer and the Special Servicer. None of the Trustee, any
Custodian, the
Master Servicer or the Special Servicer shall be liable for any
failure by any
Mortgage Loan Seller or the Depositor to comply with the document
delivery
requirements of the related Loan Sale Agreement and this Section
2.01(b).
Notwithstanding anything herein to the contrary, with respect to
letters of
credit, the applicable Mortgage Loan Seller shall deliver to the
Master Servicer
and the Master Servicer shall hold the original (or copy, if such
original has
been submitted by the applicable Mortgage Loan Seller to the
issuing bank to
effect an assignment or amendment of such letter of credit
(changing the
beneficiary thereof to the Trust (in care of the Master Servicer)
that may be
required in order for the Master Servicer to draw on such letter of
credit on
behalf of the Trust in accordance with the applicable terms thereof
and/or of
the related Mortgage Loan documents) and the applicable Mortgage
Loan Seller
shall be deemed to have satisfied any delivery requirements of the
related
Mortgage Loan Purchase Agreement and this Section 2.01(b) by
delivering with
respect to any letter(s) of credit a copy thereof to the Trustee
together with
an officer's certificate of the applicable Mortgage Loan Seller
certifying that
such document has been delivered to the Master Servicer or an
officer's
certificate from the Master Servicer certifying that it holds the
letter(s) of
credit pursuant to this Section 2.01(b), the original or a copy
shall be
delivered to the Trustee on the Closing Date. If a letter of credit
referred to
in the previous sentence is not in a form that would allow the
Master Servicer
to draw on such letter of credit on behalf of the Trust in
accordance with the
applicable terms thereof and/or of the related Mortgage Loan
documents, the
applicable Mortgage Loan Seller shall deliver the appropriate
assignment or
amendment documents (or copies of such assignment or amendment
documents if the
related Mortgage Loan Seller has submitted the originals to the
related issuer
of such letter of credit for processing) to the Master Servicer
within 90 days
of the Closing Date. The applicable Mortgage Loan Seller shall pay
any costs of
assignment or amendment of such letter(s) of credit required in
order for the
Master Servicer to draw on such letter(s) of credit on behalf of
the Trust and
shall cooperate with the reasonable requests of the Master Servicer
or the
Special Servicer, as applicable, in connection with effectuating a
draw under
any such letter of credit prior to the date such letter of credit
is assigned or
amended in order that it may be drawn by the Master Servicer on
behalf of the
Trust.
After the
Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any
action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that each
Mortgage
Loan Seller has covenanted in the applicable Loan Sale Agreement
that it shall
record and file, or shall cause the Trustee to record and file at
the Mortgage
Loan Seller's expense, in the appropriate public office for real
property
records or UCC financing statements, as appropriate, each related
assignment of
Mortgage and assignment of Assignment of Leases, in favor of the
Trustee
referred to in clause (4) of the definition of "Mortgage File" and
each related
UCC-2 and UCC-3 assignment referred to in clause (8) of the
definition of
"Mortgage File" and, with respect to any Mortgage Loan to which the
Trustee has
agreed to record and file such documents, the Trustee shall
promptly undertake
to record or file any such document upon its receipt thereof. This
clause (c)
shall not apply to the Non-Serviced Mortgage Loan since the
documents referred
to herein have been assigned to the Other Trustee.
The Depositor hereby represents and warrants that the
applicable
Mortgage Loan Seller has covenanted in the related Loan Sale
Agreement as to
each Mortgage Loan, that if it cannot deliver or cause to be
delivered the
documents and/or instruments referred to in clauses (2), (3), (6)
(if recorded)
and (8) of the definition of "Mortgage File" solely because of a
delay caused by
the public recording office where such document or instrument has
been delivered
for recordation, a copy of the original certified by the applicable
Mortgage
Loan Seller to be a true and complete copy of the original thereof
submitted for
recording, shall be forwarded to the Trustee. Each assignment
referred to in the
prior paragraph that is recorded shall reflect that it should be
returned by the
public recording office to the Trustee or its agent following
recording, and
each UCC-2 and UCC-3 assignment referred to in the prior paragraph
that is filed
by shall reflect that the file copy thereof should be returned to
the Trustee or
its agent following filing; provided that, in those instances where
the public
recording office retains the original assignment of Mortgage or
assignment of
Assignment of Leases, the Trustee shall obtain therefrom a
certified copy of the
recorded original. On a monthly basis, at the expense of the
applicable Mortgage
Loan Seller, the Trustee shall forward to the Master Servicer a
copy of each of
the aforementioned assignments following the Trustee's receipt
thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, then the
Trustee shall direct the applicable Mortgage Loan Seller (pursuant
to the Loan
Sale Agreement) promptly to prepare or cause the preparation of a
substitute
therefor or to cure such defect, as the case may be, and record or
file, or with
respect to any assignments the Trustee has agreed to file as
described above, to
deliver to the Trustee the substitute or corrected document. The
Trustee shall
upon receipt from the applicable Mortgage Loan Seller cause the
same to be duly
recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct the applicable
Mortgage Loan
Seller (pursuant to the Loan Sale Agreement) to deliver to and
deposit (or cause
to be delivered and deposited) with the Master Servicer on the
Closing Date, all
documents and records that (A) relate to the servicing and
administration of the
Serviced Loans, (B) are part of the Servicing File and (C) are in
possession or
under control of the applicable Mortgage Loan Seller, together with
(i) all
unapplied Escrow Payments in the possession of the applicable
Mortgage Loan
Seller that relate to such Serviced Loans and (ii) a statement
indicating which
Escrow Payments are allocable to such Serviced Whole Loans,
provided that the
applicable Mortgage Loan Seller shall not be required to deliver
any draft
documents, privileged or other related Mortgage Loan Seller
communications,
credit underwriting, due diligence analyses or data, or internal
worksheets,
memoranda, communications or evaluations. The Master Servicer shall
hold all
such documents, records and funds on behalf of the Trustee in trust
for the
benefit of the Certificateholders (and, insofar as they also relate
to the
Companion Loans, on behalf of and for the benefit of the applicable
Companion
Loan Noteholder).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby
represents and
warrants that it has delivered, to the Trustee and the Master
Servicer, on or
before the Closing Date, a fully executed original counterpart of
each Loan Sale
Agreement, as in full force and effect, without amendment or
modification, on
the Closing Date.
(f) The Trustee (i) with respect to the Serviced Whole Loans,
shall
also hold the related Mortgage File for the use and benefit of the
Companion
Loan Noteholders and (ii) with respect to the Non-Serviced Mortgage
Loan, hereby
agrees that the Trust assumes the obligations and rights of the
holder of the
Non-Serviced Mortgage Loan under the Fair Lakes Office Park
Intercreditor
Agreement and/or Other Pooling Agreement.
(g) It is not intended that this Agreement create a partnership or
a
joint-stock association.
(h) The Master Servicer hereby acknowledges the receipt by it of
the
Closing Date Deposit Amount. The Master Servicer shall hold such
Closing Date
Deposit Amount in the Collection Account and shall include the
Closing Date
Deposit Amount in Available Funds for the initial Distribution
Date. The Closing
Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Custodian and the Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement,
hereby accepts receipt, directly or through a Custodian on its
behalf, of (i)
the Mortgage Loans and all documents delivered to it that
constitute portions of
the related Mortgage Files and (ii) all other assets delivered to
it and
included in the Trust Fund, in good faith and without notice of any
adverse
claim, and declares that it or a Custodian on its behalf holds and
will hold
such documents and any other documents subsequently received by it
that
constitute portions of the Mortgage Files, and that it holds and
will hold the
Mortgage Loans and such other assets, together with any other
assets
subsequently delivered to it that are to be included in the Trust
Fund, in trust
for the exclusive use and benefit of all present and future
Certificateholders
and, if applicable, the Companion Loan Noteholders pursuant to
Section 2.01(f).
With respect to each Serviced Whole Loan, the Trustee shall also
hold the
portion of such Mortgage File that relates to the Companion Loan(s)
in such
Serviced Whole Loan in trust for the use and benefit of the related
Companion
Loan Noteholder. In connection with the foregoing, the Trustee
hereby certifies
to each of the other parties hereto, the applicable Mortgage Loan
Seller and
each Underwriter that, as to each Mortgage Loan, except as
specifically
identified in the exception report attached hereto as Exhibit Q-1,
(i) all
documents specified in clause (1) of the definition of "Mortgage
File" are in
its possession or the possession of a Custodian on its behalf, and
(ii) the
original Note (or, if accompanied by a lost note affidavit, the
copy of such
Note) received by it or any Custodian with respect to such Mortgage
Loan has
been reviewed by it or by such Custodian on its behalf and (A)
appears regular
on its face (handwritten additions, changes or corrections shall
not constitute
irregularities if initialed by the Mortgagor), (B) appears to have
been executed
(where appropriate) and (C) purports to relate to such Mortgage
Loan.
(b) On or about the 60th day following the Closing Date (and, if
any
exceptions are noted, again on or about the 90th day following the
Closing Date
and monthly thereafter until the earliest of (i) the second
anniversary of the
Closing Date, (ii) the day on which all material exceptions have
been removed
and (iii) the day on which the Depositor has repurchased the last
affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall
review the
documents delivered to it or such Custodian with respect to each
Mortgage Loan,
and the Trustee shall, subject to Sections 2.01, 2.02(c) and
2.02(d), certify in
writing (substantially in the form of Exhibit Q-2 hereto) to each
of the other
parties hereto, the applicable Mortgage Loan Seller and each
Underwriter (and
upon request, in the case of a Serviced Whole Loan, to the related
Companion
Loan Noteholder) that, as to each Mortgage Loan then subject to
this Agreement
(except as specifically identified in any exception report annexed
to such
certification): (i) all documents specified in clauses (1) through
(5), (7) and
(8) (without regard to the second parenthetical in such clause (8)
of the
definition of "Mortgage File" are in its possession or the related
Mortgage Loan
Seller has otherwise satisfied the delivery requirements in
accordance with
Section 2.01(b)); (ii) the recordation/filing contemplated by
Section 2.01(c)
has been completed (based solely on receipt by the Trustee of the
particular
recorded/filed documents); (iii) all documents received by it or
any Custodian
with respect to such Mortgage Loan have been reviewed by it or by
such Custodian
on its behalf and (A) appear regular on their face (handwritten
additions,
changes or corrections shall not constitute irregularities if
initialed by the
Mortgagor), (B) appear to have been executed (where appropriate)
and (C) purport
to relate to such Mortgage Loan; and (iv) based on the examinations
referred to
in Section 2.02(a) above and this Section 2.02(b) and only as to
the foregoing
documents, the information set forth in the Mortgage Loan Schedule
with respect
to the items specified in clauses (v) and (vi)(B) of the definition
of "Mortgage
Loan Schedule" accurately reflects the information set forth in the
Mortgage
File. With respect to the items listed in clauses (2), (3), (4) and
(6) of the
definition of Mortgage File if the original of such document is not
in the
Trustee's possession because it has not been returned from the
applicable
recording office, then the Trustee's or Custodian's certification
prepared
pursuant to this Section 2.02(b) should indicate the absence of
such original.
If the Trustee's obligation to deliver the certifications
contemplated in this
subsection terminates because two years have elapsed since the
Closing Date, the
Trustee shall deliver a comparable certification to any party
hereto, the
applicable Companion Loan Noteholder and any Underwriter on
request.
(c) It is acknowledged that none of the Trustee, the Master
Servicer, the Special Servicer or any Custodian is under any duty
or obligation
to inspect, review or examine any of the documents, instruments,
certificates or
other papers relating to the Loans delivered to it to determine
that the same
are valid, legal, effective, genuine, binding, enforceable,
sufficient or
appropriate for the represented purpose or that they are other than
what they
purport to be on their face. Furthermore, none of the Trustee, the
Master
Servicer, the Special Servicer or any Custodian shall have any
responsibility
for determining whether the text of any assignment or endorsement
is in proper
or recordable form, whether the requisite recording of any document
is in
accordance with the requirements of any applicable jurisdiction, or
whether a
blanket assignment is permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of
the
Mortgage Files is limited solely to confirming that the documents
specified in
clauses (1) through (5), (7) and (8) of the definition of "Mortgage
File" have
been received, appear regular on their face and such additional
information as
will be necessary for delivering the certifications required by
Sections 2.02(a)
and (b) above.
(e) If, after the Closing Date, the Depositor comes into
possession
of any documents or records that constitute part of the Mortgage
File or
Servicing File for any Mortgage Loan, the Depositor shall promptly
deliver such
document to the Trustee with a copy to the Master Servicer (if it
constitutes
part of the Mortgage File) or the Master Servicer (if it
constitutes part of the
Servicing File), as applicable.
Section 2.03 Mortgage Loan Sellers' Repurchase or Cures of
Mortgage
Loans for Document Defects in Mortgage Files and Breaches of
Representations and
Warranties.
(a) If any party hereto discovers that any document constituting
a
part of a Mortgage File has not been properly executed, is missing,
contains
information that does not conform in any material respect with the
corresponding
information set forth in the Mortgage Loan Schedule, or does not
appear to be
regular on its face (each, a "Document Defect"), or discovers or
receives notice
of a breach of any representation or warranty of the applicable
Mortgage Loan
Seller made pursuant to Section 6(c) of the Loan Sale Agreement
with respect to
any Mortgage Loan (a "Breach"), such party shall give prompt
written notice
thereof to each of the Rating Agencies, the applicable Mortgage
Loan Seller, the
other parties hereto and the Companion Loan Noteholders. If any
such Document
Defect or Breach with respect to any Mortgage Loan materially and
adversely
affects the value of the Mortgage Loans, the related Mortgaged
Property or the
interests of the Certificateholders therein, then such Document
Defect shall
constitute a "Material Document Defect" or such Breach shall
constitute a
"Material Breach," as the case may be. Promptly upon becoming aware
of any such
Material Document Defect or Material Breach (including through a
written notice
given by any party hereto, as provided above), the Trustee shall
require the
applicable Mortgage Loan Seller, not later than 90 days from the
earlier of the
applicable Mortgage Loan Seller's discovery or receipt of notice of
such
Material Document Defect or Material Breach, as the case may be
(or, in the case
of a Material Document Defect or Material Breach relating to a
Mortgage Loan not
being a Qualified Mortgage, not later than 90 days of any party
discovering such
Material Document Defect or Material Breach), cure the same in all
material
respects (which cure shall include payment of losses and any
Additional Trust
Fund Expenses associated therewith) or, if such Material Document
Defect or
Material Breach, as the case may be, cannot be cured within such 90
day period,
repurchase the affected Mortgage Loan or any related REO Property
(including
with respect to the Non-Serviced Mortgaged Loan) at the applicable
Purchase
Price by wire transfer of immediately available funds to the
Collection Account;
provided, however, that if (i) such Material Document Defect or
Material Breach
is capable of being cured but not within such 90 day period, (ii)
such Material
Document Defect or Material Breach is not related to any Mortgage
Loan's not
being a Qualified Mortgage and (iii) the applicable Mortgage Loan
Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach within such 90 day period, then such
Mortgage Loan
Seller shall have an additional 90 days to complete such cure or,
in the event
of a failure to so cure, to complete such repurchase (it being
understood and
agreed that, in connection with such Mortgage Loan Seller's
receiving such
additional 90 day period, such Mortgage Loan Seller shall deliver
an Officer's
Certificate to the Trustee setting forth the reasons such Material
Document
Defect or Material Breach is not capable of being cured within the
initial 90
day period and what actions such Mortgage Loan Seller is pursuing
in connection
with the cure thereof and stating that such Mortgage Loan Seller
anticipates
that such Material Document Defect or Material Breach will be cured
within such
additional 90 day period); and provided, further, that, if any such
Material
Document Defect is still not cured after the initial 90 day period
and any such
additional 90 day period solely due to the failure of such Mortgage
Loan Seller
to have received the recorded document, then such Mortgage Loan
Seller shall be
entitled to continue to defer its cure and repurchase obligations
in respect of
such Document Defect so long as such Mortgage Loan Seller certifies
to the
Trustee every 30 days thereafter that the Document Defect is still
in effect
solely because of its failure to have received the recorded
document and that
such Mortgage Loan Seller is diligently pursuing the cure of such
defect
(specifying the actions being taken), except that no such deferral
of cure or
repurchase may continue beyond the second anniversary of the
Closing Date. If
the affected Mortgage Loan is to be repurchased, the Master
Servicer shall
designate the Collection Account as the account to which funds in
the amount of
the Purchase Price are to be wired. Any such repurchase of a
Mortgage Loan shall
be on a whole loan, servicing released basis.
If one or more (but not all) of the Mortgage Loans constituting
a
cross-collateralized group are to be repurchased by the applicable
Mortgage Loan
Seller as contemplated by this Section 2.03(a), then, prior to the
subject
repurchase, the applicable Mortgage Loan Seller or its designee
shall use its
reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to
prepare and, to the extent necessary and appropriate, have executed
by the
related Mortgagor and record, such documentation as may be
necessary to
terminate the cross-collateralization between the Mortgage Loan(s)
in such
Cross-Collateralized Group that are to be repurchased, on the one
hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that
those two
groups of Mortgage Loans are each secured only by the Mortgaged
Properties
identified in the Mortgage Loan Schedule as directly corresponding
thereto;
provided that no such termination shall be effected unless and
until the
Controlling Class Representative has consented (which consent shall
not be
unreasonably withheld and shall be deemed to have been given if no
written
objection is received by the applicable Mortgage Loan Seller within
10 days of
such Controlling Class Representative's receipt of a written
request for such
consent) and the Trustee has received from such Mortgage Loan
Seller (i) an
Opinion of Counsel that such repurchase will not cause the
imposition of a tax
on the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC
Provisions nor cause
the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any
time that any Certificate is outstanding and (ii) a Rating Agency
Confirmation;
and provided, further, that such Mortgage Loan Seller may, at its
option,
purchase the entire subject Cross-Collateralized Group in lieu of
effecting a
termination of the cross-collateralization. All costs and expenses
incurred by
the Trustee or any Person on its behalf pursuant to this paragraph
shall be
included in the calculation of the Purchase Price for the Mortgage
Loan(s) to be
repurchased. If the cross-collateralization of any
Cross-Collateralized Group is
not or cannot be terminated as contemplated by this paragraph,
then, for
purposes of (i) determining whether any Breach or Document Defect,
as the case
may be is a Material Breach or Material Document Defect, and (ii)
the
application of remedies, such Cross-Collateralized Group shall be
treated as a
single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant
to
this Section 2.03, and subject to Section 3.29, the Trustee, the
Custodian, the
Master Servicer and the Special Servicer shall each tender to the
repurchasing
entity, upon delivery to each of them of a receipt executed by the
repurchasing
entity, all portions (including, without limitation, the Servicing
File) of the
Mortgage File and other documents pertaining to such Mortgage Loan
possessed by
it, and each document that constitutes a part of the Mortgage File
shall be
endorsed or assigned to the extent necessary or appropriate to the
repurchasing
entity or its designee in the same manner, but only if the
respective documents
have been previously assigned or endorsed to the Trustee, and
pursuant to
appropriate forms of assignment, substantially similar to the
manner and forms
pursuant to which such documents were previously assigned to the
Trustee;
provided that such tender by the Trustee shall be conditioned upon
its receipt
from the Master Servicer of a Request for Release and an Officer's
Certificate
to the effect that the requirements for repurchase have been
satisfied. The
Master Servicer shall, and is hereby authorized and empowered by
the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements
and
assignments contemplated by this Section 2.03(b), and such other
instruments as
may be necessary or appropriate to transfer title to an REO
Property (including
with respect to the Non-Serviced Mortgaged Loan) in connection with
the
repurchase of an REO Mortgage Loan and the Trustee shall execute
and deliver any
powers of attorney necessary to permit the Master Servicer to do
so; provided,
however, that the Trustee shall not be held liable for any misuse
of any such
power of attorney by the Master Servicer.
(c) Each Loan Sale Agreement and Section 2.03(a) provide the
sole
remedies available to the Certificateholders, or the Trustee on
behalf of the
Certificateholders, respecting any Document Defect or Breach with
respect to any
Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the
Certificateholders and the
Companion Loan Noteholders, and to the Depositor and the Special
Servicer, as of
the Closing Date, that:
(i) The Master Servicer is a national banking association
validly
existing
and in good standing under the laws of the United States of
America,
and the Master Servicer is in compliance with the laws of each
state in
which any Mortgaged Property is located to the extent necessary
to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer,
and the performance and compliance with the terms of this
Agreement
by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event
which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material agreement or other material
instrument
to which it is a party or which is applicable to it or any of
its
assets.
(iii) The Master Servicer has the full power and authority to
enter
into and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement,
and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Master Servicer, enforceable against
the
Master
Servicer in accordance with the terms hereof, subject to (A)
applicable
bankruptcy, receivership, insolvency, reorganization,
moratorium
and other laws affecting the enforcement of creditors'
(including
bank creditors') rights generally, and (B) general principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(v) The Master Servicer is not in violation of, and its
execution
and
delivery of this Agreement and its performance and compliance with
the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Master Servicer's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Master Servicer to perform its obligations under
this
Agreement
or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's
knowledge, threatened, against the Master Servicer, the outcome
of which,
in the Master Servicer's good faith and reasonable judgment,
could
reasonably be expected to prohibit the Master Servicer from
entering
into this
Agreement or materially and adversely affect the ability of the
Master
Servicer to perform its obligations under this Agreement.
(vii) No consent, approval, authorization or order,
registration,
filing
with or notice to any governmental authority or court is
required
under
federal or state law, for the execution, delivery and performance
by
the Master
Servicer, or compliance by the Master Servicer with, this
Agreement
or the consummation of any transactions contemplated hereby,
other than
(A) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and
(B)
where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse
effect on
the
performance by the Master Servicer under this Agreement; and
(viii) The Master Servicer has errors and omissions insurance
coverage
which is in full force and effect and complies with the
requirements of Section 3.08(c) of this Agreement.
(b) The representations and warranties set forth in paragraph
(a)
above shall survive the execution and delivery of the Agreement.
Upon discovery
by the Depositor, the Master Servicer, the Special Servicer or a
Responsible
Officer of the Trustee (or upon written notice thereof from any
Certificateholder or any Companion Loan Noteholder) of a breach of
any of the
representations and warranties set forth in this Section which
materially and
adversely affects the interests of the Certificateholders or any
Companion Loan
Noteholders, the Master Servicer, the Special Servicer or the
Trustee in any
Mortgage Loan or Serviced Whole Loan, the party discovering such
breach shall
give prompt written notice to the other parties hereto and the
Controlling Class
Representative and the Companion Loan Noteholders.
Section 2.05 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the
Certificateholders and the
Companion Loan Noteholders, and to the Depositor and the Master
Servicer, as of
the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized,
validly existing and in good standing under the laws of the
State of
New York, and the Special Servicer is in compliance with the
laws
of each
State in which any Mortgaged Property is located to the extent
necessary
to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Special
Servicer,
and the performance and compliance with the terms of this
Agreement
by the Special Servicer, will not violate the Special
Servicer's
bylaws or
Articles of Incorporation or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a
default)
under, or
result in the breach of, any material agreement or other
instrument
to which it is a party or which is applicable to it or any of
its
assets, or result in the violation of any law, rule,
regulation,
order,
judgment or decree which the Special Servicer or its property
is
subject;
(iii) The Special Servicer has the full power and authority to
enter
into and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement,
and has
duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Special Servicer, enforceable against
the
Special
Servicer in accordance with the terms hereof, subject to (A)
applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws
affecting the enforcement of creditors' rights generally and
(B)
general
principles of equity, regardless of whether such enforcement is
considered
in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its
execution
and
delivery of this Agreement and its performance and compliance with
the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Special Servicer's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Special Servicer to perform its obligations under
this
Agreement
or the financial condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's
knowledge, threatened against the Special Servicer which would
prohibit
the Special Servicer from entering into this Agreement or, in
the
Special
Servicer's good faith and reasonable judgment is likely to
materially
and adversely affect either the ability of the Special Servicer
to perform its
obligations under this Agreement or the financial condition
of the
Special Servicer;
(vii) Each officer, director or employee of the Special
Servicer
that has
or, following a transfer of servicing responsibilities to the
Special
Servicer pursuant to Section 3.24, would have responsibilities
concerning
the servicing and administration of Mortgage Loans is covered
by errors
and omissions insurance in the amounts and with the coverage
required
by Section 3.08(c); and
(viii) No consent, approval, authorization or order of,
regulation
or filing
with or notice to, any court or governmental authority or court
is
required, under federal or state laws, for the execution, delivery
and
performance of or compliance by the Special Servicer this Agreement
or the
consummation by the Special Servicer of the transactions
contemplated by
this
Agreement, other than (1) such consents, approvals,
authorizations,
qualifications, registrations, filings or notices as have been
obtained or
made and
(2) where the lack of such consent, approval, authorization,
registration, filing or notice would not have a materially adverse
effect
on the
performance by the Special Servicer under this Agreement.
(b) The representations and warranties set forth in paragraph
(a)
above shall survive the execution and delivery of the Agreement.
Upon discovery
by the Depositor, the Master Servicer, the Special Servicer or a
Responsible
Officer of the Trustee (or upon written notice thereof from any
Certificateholder or any Companion Loan Noteholder) of a breach of
any of the
representations and warranties set forth in this Section which
materially and
adversely affects the interests of the Certificateholders or any
Companion Loan
Noteholder, the Master Servicer, the Special Servicer or the
Trustee in any
Mortgage Loan, the party discovering such breach shall give prompt
written
notice to the other parties hereto and the Controlling Class
Representative and
the Companion Loan Noteholders.
Section 2.06 Execution and Delivery of Certificates; Issuance
of
Lower-Tier Regular Interests. The Trustee acknowledges the
assignment to it of
the Mortgage Loans and the delivery of the related Mortgage Files
to the
Custodian (to the extent the documents constituting the Mortgage
Files are
actually delivered to the Custodian), subject to the provisions of
Section 2.01
and Section 2.02 and, concurrently with such delivery, (i) the
Trustee
acknowledges the issuance of the Lower-Tier Regular Interests to
the Depositor
and the execution, authentication, and delivery of the Class LR
Certificates to
or upon the order of the Depositor, evidencing ownership of the
entire
Lower-Tier REMIC, in exchange for the Mortgage Loans and the other
property
constituting the Lower-Tier REMIC, receipt of which is hereby
acknowledged, (ii)
the Depositor hereby conveys all rights, title and interest in and
to the
Lower-Tier Regular Interests to the Trustee and (iii) the Trustee
acknowledges
that it has executed and caused to be authenticated and delivered
to and upon
the order of the Depositor, in exchange for the Lower-Tier Regular
Interests,
the Regular Certificates and the Class R Certificates, registered
in the names
set forth in such order and duly authenticated by the Trustee
evidencing
ownership of the Upper-Tier REMIC.
Section 2.07 Miscellaneous REMIC Provisions.
(a) The Class LA-1, Class LA-2, Class LA-3, Class LA-AB, Class
LA-4,
Class LA-1A, Class LA-M, Class LA-J, Class LB, Class LC, Class LD,
Class LE,
Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class
LM, Class LN,
Class LO, Class LP, Class LQ and Class LS Interests are hereby
designated as
"regular interests" in the Lower-Tier REMIC within the meaning of
Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby
designated as
the sole class of "residual interests" in the Lower-Tier REMIC
within the
meaning of Section 860G(a)(2) of the Code.
(b) The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class X, Class A-M, Class A-J, 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 Q and Class S Certificates are hereby designated as
representing
"regular interests" in the Upper-Tier REMIC within the meaning of
Section
860G(a)(1) of the Code and the Class R Certificates are hereby
designated as the
sole class of "residual interests" in the Upper-Tier REMIC within
the meaning of
Section 860G(a)(2) of the Code.
(c) The Closing Date is hereby designated as the "Startup Day"
of
the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section
860G(a)(9) of the Code. The "latest possible maturity date" of the
Lower-Tier
Regular Interests and the Regular Certificates for purposes of
Section
860G(a)(1) of the Code is the Rated Final Distribution Date.
(d) None of the Depositor, the Trustee, the Master Servicer or
the
Special Servicer shall enter into any arrangement by which the
Trust Fund will
receive a fee or other compensation for services other than as
specifically
contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Master Servicer;
Administration of the Mortgage Loans. (a) The Master Servicer and
the Special
Servicer, each as an independent contractor, shall service and
administer the
Mortgage Loans and the Serviced Companion Loans (other than the
Non-Serviced
Mortgage Loan and the Companion Loan related to the Non-Serviced
Mortgage Loan,
which will be serviced pursuant to the Other Pooling Agreement) on
behalf of the
Trust Fund and the Trustee (as trustee for Certificateholders and,
with respect
to each Serviced Whole Loan, on behalf of the Certificateholders
and the related
Companion Loan Noteholders as a collective whole) as determined in
the good
faith and reasonable judgment of the Master Servicer or the Special
Servicer, as
the case may be, in accordance with: (i) any and all applicable
laws; (ii) the
express terms of this Agreement, the respective Serviced Loans and,
in the case
of the Serviced Whole Loans, the related Intercreditor Agreement;
and (iii) to
the extent consistent with the foregoing, the Servicing Standard.
To the extent
consistent with the foregoing and subject to any express
limitations set forth
in this Agreement and any related Intercreditor Agreement or
mezzanine loan
intercreditor agreement, the Master Servicer and Special Servicer
shall seek to
maximize the timely and complete recovery of principal and interest
on the
Mortgage Loans and Companion Loans (other than the Non-Serviced
Mortgage Loan
and the Companion Loan related thereto). Subject only to the
Servicing Standard,
the Master Servicer and Special Servicer shall have full power and
authority,
acting alone or, in the case of the Master Servicer only, through
sub-servicers
(subject to paragraph (c) of this Section 3.01 and to Section
3.02), to do or
cause to be done any and all things in connection with such
servicing and
administration which it may deem consistent with the Servicing
Standard and, in
its judgment exercised in accordance with the Servicing Standard,
in the best
interests of the Certificateholders and holders of the related
Companion Loans
(as a collective whole), including, without limitation, with
respect to each
Mortgage Loan and Companion Loan, to prepare, execute and deliver,
on behalf of
the Certificateholders, related Companion Loan Noteholders and the
Trustee or
either of them: (i) any and all financing statements, continuation
statements
and other documents or instruments necessary to maintain the lien
on each
Mortgaged Property and related collateral; (ii) subject to Sections
3.08, 3.09,
3.10 and 3.27, any modifications, waivers, consents or amendments
to or with
respect to any documents contained in the related Mortgage File or
defeasance of
the Mortgage Loan or Companion Loan; and (iii) any and all
instruments of
satisfaction or cancellation, or of partial or full release or
discharge, and
all other comparable instruments, with respect to the Mortgage
Loans (and
related Companion Loans) and the Mortgaged Properties.
Notwithstanding the
foregoing, neither the Master Servicer nor the Special Servicer
shall modify,
amend, waive or otherwise consent to any change of the terms of any
Mortgage
Loan or Companion Loan except under the circumstances described in
Sections
3.08, 3.09, 3.10 and 3.27 hereof or in Section 3.03(a) hereof. The
Master
Servicer and Special Servicer shall service and administer the
Mortgage Loans
and the Companion Loans (other than the Non-Serviced Mortgage Loan
and the
Companion Loan related thereto) in accordance with applicable law
and the terms
hereof and the Intercreditor Agreements and shall provide to the
Mortgagors any
reports required to be provided to them thereby.
Pursuant to the terms of the Intercreditor Agreements relating
to
the Whole Loans that have a Mezz Cap B Loan as its Companion Loan,
it is
contemplated that the Mortgagor under such Whole Loan and its
related Mezz Cap B
Loan will remit payments on such Whole Loan to the Master Servicer
hereunder,
and for each Mezz Cap B Loan that has been securitized and for each
Mezz Cap B
Loan that is securitized in the future, the related Mortgagor will
remit
payments on such Mezz Cap B Loans directly to the servicer for
such
securitizations; provided, however, that under the circumstances
identified in
the related Intercreditor Agreements, the Mortgagor under each Mezz
Cap B Loan
(even after such Mezz Cap B Loan has been securitized) will be
required to remit
payments on such Mezz Cap B Loan directly to the Master Servicer
under this
Agreement.
Subject to Section 3.11, the Trustee shall, upon the receipt of
a
written request of a Servicing Officer, execute and deliver to the
Master
Servicer and Special Servicer any powers of attorney and other
documents
prepared by the Master Servicer and Special Servicer and necessary
or
appropriate (as certified in such written request) to enable the
Master Servicer
and Special Servicer to carry out their servicing and
administrative duties
hereunder. Notwithstanding anything contained herein to the
contrary, neither
the Master Servicer nor the Special Servicer shall, without the
Trustee's
written consent: (i) initiate any action, suit or proceeding solely
under the
Trustee's name without indicating the Master Servicer's or Special
Servicer's,
as applicable, representative capacity; or (ii) take any action
with the intent
to cause, and that actually causes, the Trustee to be registered to
do business
in any state. Each of the Master Servicer and the Special Servicer
shall
indemnify the Trustee for any and all costs, liabilities and
expenses incurred
by the Trustee in connection with the negligent or willful misuse
of such powers
of attorney by the Master Servicer or the Special Servicer, as
applicable.
(b) Unless otherwise provided in the related Loan Documents,
the
Master Servicer shall apply any partial Principal Prepayment
received on a
Mortgage Loan or Companion Loan (other than the Non-Serviced
Mortgage Loan or
the Companion Loan related thereto), on a date other than a Due
Date to the
principal balance of such Mortgage Loan as of the Due Date
immediately following
the date of receipt of such partial Principal Prepayment. Unless
otherwise
provided in the related Loan Documents, the Master Servicer shall
apply any
amounts received on "government securities" within the meaning of
Section
2(a)(16) of the Investment Company Act of 1940, or any other
securities that
comply with Treasury Regulations Section 1.860G-2(a)(8) (which
shall not be
redeemed by the Master Servicer prior to the maturity thereof) in
respect of
such a Mortgage Loan or Companion Loan being defeased pursuant to
its terms to
the principal balance of and interest on such Mortgage Loan or
Companion Loan as
of the Due Date immediately following the receipt of such
amounts.
(c) The Master Servicer may enter into sub-servicing agreements
with
third parties with respect to any of its obligations hereunder,
provided that
(i) any such agreement shall be consistent with the provisions of
this Agreement
and (ii) such agreement shall be consistent with the Servicing
Standard. Any
such sub-servicing agreement may permit the sub-servicer to
delegate its duties
to agents or subcontractors so long as the related agreements or
arrangements
with such agents or subcontractors are consistent with the
provisions of this
Section 3.01(c). Any sub-servicing agreement entered into by the
Master Servicer
shall provide that it may be assumed by the Trustee, if the Trustee
has assumed
the duties of the Master Servicer or by any successor Master
Servicer without
cost or obligation to the assuming party or the Trust Fund, upon
the assumption
by such party of the obligations of the Master Servicer pursuant to
Section
7.02. The Special Servicer may not enter into sub-servicing
agreements.
Any sub-servicing agreement, and any other transactions or
services
relating to the Mortgage Loans involving a sub-servicer, shall be
deemed to be
between the Master Servicer and such sub-servicer alone, and the
Trustee, the
Trust Fund and the Certificateholders shall not be deemed parties
thereto and
shall have no claims, rights, obligations, duties or liabilities
with respect to
the sub-servicer, except as set forth in Section 3.01(d) and no
provision herein
may be construed so as to require the Trust Fund to indemnify any
such
sub-servicer.
Notwithstanding anything to the contrary contained herein, it
shall
be permissible for the sub-servicing agreement entered into with
any
sub-servicers dated on or prior to the Closing Date to prohibit a
termination of
the related sub-servicer without cause. Any such right of such a
designated
sub-servicer under the related sub-servicing agreement shall be
binding upon any
successor Master Servicer (including the Trustee).
(d) If the Trustee or any successor Master Servicer assumes the
obligations of the Master Servicer in accordance with Section 7.02,
the Trustee
or such successor, as applicable, to the extent necessary to permit
the Trustee
or such successor, as applicable, to carry out the provisions of
Section 7.02,
shall, without act or deed on the part of the Trustee or such
successor, as
applicable, succeed to all of the rights and obligations of the
Master Servicer
under any sub-servicing agreement entered into by the Master
Servicer pursuant
to Section 3.01(c). In such event, the Trustee or the successor
Master Servicer,
as applicable, shall be deemed to have assumed all of the Master
Servicer's
interest therein (but not any liabilities or obligations in respect
of acts or
omissions of the Master Servicer prior to such deemed assumption)
and to have
replaced the Master Servicer as a party to such sub-servicing
agreement to the
same extent as if such sub-servicing agreement had been assigned to
the Trustee
or such successor Master Servicer, as applicable, except that the
Master
Servicer shall not thereby be relieved of any liability or
obligations under
such sub-servicing agreement that accrued prior to the succession
of the Trustee
or the successor Master Servicer, as applicable.
In the event that the Trustee or any successor Master Servicer,
assumes the servicing obligations of the Master Servicer, upon
request of the
Trustee, or such successor Master Servicer, as applicable, the
Master Servicer
shall at its own expense deliver or cause to be delivered to the
Trustee or such
successor Master Servicer all documents and records relating to
any
sub-servicing agreement and the Mortgage Loans then being serviced
thereunder
and an accounting of amounts collected and held by it, if any, and
will
otherwise use its reasonable efforts to effect the orderly and
efficient
transfer of any sub-servicing agreement to the Trustee or the
successor Master
Servicer, as applicable.
(e) Notwithstanding anything herein to the contrary, the
parties
hereto acknowledge and agree that the Master Servicer's obligations
and
responsibilities hereunder and the Master Servicer's authority with
respect to
the Non-Serviced Mortgage Loan and the Companion Loan related to
the
Non-Serviced Mortgage Loan are limited by and subject to the terms
of the Fair
Lakes Office Park Intercreditor Agreement and this Agreement and
the rights of
the Other Master Servicer and the Other Special Servicer with
respect thereto
under the Other Pooling Agreement. The parties further recognize
the respective
rights and obligations of the Other Trustee, the Companion Loan
Noteholders
and/or the Companion Loan Representative under the Fair Lakes
Office Park
Intercreditor Agreement including with respect to (i) the
allocation of
collections on or in respect of the Fair Lakes Office Park Whole
Loan in
accordance with the Fair Lakes Office Park Intercreditor Agreement,
(ii) the
purchase of the Fair Lakes Office Park Whole Loan or Companion Loan
by the
related Companion Loan Noteholder or their designees in accordance
with the Fair
Lakes Office Park Intercreditor Agreement to the extent provided
therein and
(iii) any cure rights that the Companion Loan Noteholder may
exercise, if
applicable, in accordance with the Fair Lakes Office Park
Intercreditor
Agreement. The Master Servicer shall cooperate with the Trustee in
connection
with the enforcement of the rights by the Trustee (as holder of the
Non-Serviced
Mortgage Loan) under the Fair Lakes Office Park Intercreditor
Agreement and the
Other Pooling Agreement. The Trustee (with the cooperation of the
Master
Servicer) shall take such actions as it shall deem reasonably
necessary to
facilitate the servicing of the Non-Serviced Companion Loan by the
Other Master
Servicer and the Other Special Servicer, including, but not limited
to,
delivering appropriate requests for release to the custodian (if
any) in order
to deliver any portion of the related Mortgage File to the Other
Master Servicer
or Other Special Servicer under the Other Pooling Agreement.
None of the Master Servicer, the Special Servicer or the
Trustee
shall have any obligations or authority to supervise the Other
Master Servicer,
the Other Special Servicer or the Other Trustee or to make
servicing advances
with respect to the Non-Serviced Mortgage Loan or the Companion
Loan related to
the Non-Serviced Mortgage Loan. The obligation of the Master
Servicer and the
Special Servicer to provide information to the Trustee and any
other Person with
respect to the Non-Serviced Mortgage Loan and the Companion Loan
related to the
Non-Serviced Mortgage Loan is dependent on their receipt of the
corresponding
information from the Other Master Servicer or the Other Special
Servicer, as
applicable.
(f) The parties hereto acknowledge that the Non-Serviced
Mortgage
Loan is subject to the terms and conditions of the Fair Lakes
Office Park
Intercreditor Agreement and further acknowledge that, pursuant to
the Fair Lakes
Office Park Intercreditor Agreement, (i) the Non-Serviced Mortgage
Loan and the
Companion Loan that is related to the Non-Serviced Mortgage Loan is
to be
serviced and administered by the Other Master Servicer and Other
Special
Servicer in accordance with the Other Pooling Agreement, and (ii)
in the event
that the Companion Loan related to the Non-Serviced Mortgage Loan
is no longer
part of the trust fund created by the Other Pooling Agreement and
the
Non-Serviced Mortgage Loan remains an asset of the Trust Fund,
then, as set
forth in the Fair Lakes Office Park Intercreditor Agreement, the
Fair Lakes
Office Park Whole Loan shall be serviced in accordance with the
applicable
provisions of the Other Pooling Agreement as if such agreement was
still in full
force and effect with respect to the Fair Lakes Office Park Whole
Loan, until
such time as a new servicing agreement has been agreed to by the
parties to the
Fair Lakes Office Park Intercreditor Agreement in accordance with
the provisions
of such agreement and confirmation has been obtained from the
Rating Agencies
that such new servicing agreement would not result in a downgrade,
qualification
or withdrawal of the then current ratings of any Class of
Certificates then
outstanding and any other requirements applicable to the
Non-Serviced Mortgage
Loan.
(g) The parties hereto acknowledge that each Serviced Whole Loan
is
subject to the terms and conditions of the related Intercreditor
Agreement and
recognize the respective rights and obligations of the Trust, as
holder of the
related Mortgage Loan, and of the related Companion Loan
Noteholders under the
related Intercreditor Agreements, including with respect to: (i)
the allocation
of collections on or in respect of such Serviced Whole Loan, and
the making of
remittances, to the Trust, as holder of the related Mortgage Loan,
and to the
related Companion Loan Noteholders, (ii) the allocation of expenses
and losses
relating to such Serviced Whole Loan to the Trust, as holder of the
related
Mortgage Loan, and to the related Companion Loan Noteholders, (iii)
the right of
the related Companion Loan Noteholder to purchase the related
Mortgage Loan,
(iv) the right of the related Companion Loan Noteholder to cure
certain defaults
and (v) the consent, consultation and approval rights of the
related Companion
Loan Noteholder. In addition, the parties hereto further
acknowledge that,
pursuant to such Intercreditor Agreements, in the event that the
Mortgage Loan
(and any successor REO Mortgage Loan) related to any Serviced Whole
Loan is no
longer part of the Trust Fund created hereunder, then in accordance
with the
related Intercreditor Agreement, the applicable Serviced Whole Loan
shall
continue to be serviced in accordance with the applicable
provisions of this
Agreement as if this Agreement was still in full force and effect
with respect
to such Serviced Whole Loan, until such time as a new servicing
agreement has
been agreed to by the parties to related Intercreditor Agreement in
accordance
with the provisions of such Intercreditor Agreement and, if any
related Pari
Passu Companion Loan is part of a trust fund created pursuant to
a
securitization, confirmation has been obtained from the applicable
rating
agencies that such new servicing agreement would not result in a
downgrade,
qualification or withdrawal of the then current ratings of any of
the
certificates issued in connection with such securitization.
(h) Notwithstanding anything to the contrary herein, (a) at no
time
shall the Master Servicer or the Trustee be required to make any
P&I Advance on
any Companion Loan and (b) if the Mortgage Loan (or the related REO
Property)
that is part of a Whole Loan is no longer part of the Trust Fund,
neither the
Master Servicer nor the Trustee, as the case may be, shall have any
obligation
to make any Property Advance on such Whole Loan. If pursuant to the
foregoing
sentence, the Master Servicer or the Trustee does not intend to
make a Property
Advance with respect to a Whole Loan that the Master Servicer or
the Trustee
would have made if the related Mortgage Loan or REO Property were
still part of
the Trust Fund, the Master Servicer or the Trustee, as the case may
be, shall
promptly notify the holder of the related Companion Loan of its
intention to no
longer make such Property Advances and shall additionally promptly
notify such
holder of any required Property Advance it would have otherwise
made upon
becoming aware of the need for such Property Advance. Additionally,
at the time
the Mortgage Loan relating to a Serviced Whole Loan is removed from
the Trust
Fund, the Master Servicer or the Trustee, as the case may be, shall
deliver to
the related Companion Holder (or the master servicer of any
securitization of
the related Companion Loan) (i) a copy of the most recent
inspection report and
the inspection report for the prior calendar year, (ii) all
financial statements
collected from the related borrower for the most recent calendar
year and the
prior calendar year, (iii) a copy of the most recent Appraisal and
any other
Appraisal done in the prior year and (iv) a copy of all tax and
insurance bills
for the current calendar year and the prior calendar year.
Section 3.02 Liability of the Master Servicer. Notwithstanding
any
sub-servicing agreement, any of the provisions of this Agreement
relating to
agreements or arrangements between the Master Servicer and any
Person acting as
sub-servicer (or its agents or subcontractors) or any reference to
actions taken
through any Person acting as sub-servicer or otherwise, the Master
Servicer
shall remain obligated and primarily liable for the servicing and
administering
of the Mortgage Loans and the Serviced Companion Loans in
accordance with the
provisions of this Agreement without diminution of such obligation
or liability
by virtue of such sub-servicing agreements or arrangements or by
virtue of
indemnification from any Person acting as sub-servicer (or its
agents or
subcontractors) to the same extent and under the same terms and
conditions as if
the Master Servicer alone were servicing and administering the
Mortgage Loans
and the Serviced Companion Loans. The Master Servicer shall be
entitled to enter
into an agreement with any sub-servicer providing for
indemnification of the
Master Servicer by such sub-servicer, and nothing contained in this
Agreement
shall be deemed to limit or modify such indemnification, but no
such agreement
for indemnification shall be deemed to limit or modify this
Agreement.
Section 3.03 Collection of Certain Mortgage Loan Payments.
(a) The Master Servicer (with respect to non-Specially Serviced
Mortgage Loans) or the Special Servicer (with respect to Specially
Serviced
Mortgage Loans), as applicable, shall use reasonable efforts to
collect all
payments called for under the terms and provisions of the Mortgage
Loans
(including the Serviced Whole Loans but excluding the Non-Serviced
Whole Loan)
it is obligated to service hereunder, and shall follow the
Servicing Standard
with respect to such collection procedures. The Master Servicer,
with respect to
the Mortgage Loans and Serviced Companion Loans other than
Specially Serviced
Mortgage Loans, and Special Servicer, with respect to the Specially
Serviced
Mortgage Loans, shall use its reasonable efforts to collect income
statements,
rent rolls and other reporting information from Mortgagors (as
required under
the related Loan Documents). Consistent with the foregoing, the
Master Servicer
(with respect to non-Specially Serviced Mortgage Loans) or Special
Servicer
(with respect to Specially Serviced Mortgage Loans), as applicable,
may in its
discretion waive any late payment charge or Default Interest in
connection with
any delinquent Monthly Payment with respect to any Mortgage Loan or
Serviced
Companion Loan. In addition, the Master Servicer shall be entitled
to take such
actions with respect to the collection of payments on the Mortgage
Loans and the
Serviced Companion Loans as are permitted or required under Section
3.26 hereof.
(b) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit R) to each
Other Master
Servicer and Other Special Servicer stating that, as of the Closing
Date, the
Trustee is the holder of the related Mortgage Loan and directing
such Other
Master Servicer to remit to the Master Servicer all amounts payable
and to
forward, deliver or otherwise make available, as the case may be,
to the Master
Servicer all reports, statements, documents, communications and
other
information that are to be forwarded, delivered or otherwise made
available to,
the Companion Loan Noteholders under the applicable Intercreditor
Agreement and
the Other Pooling Agreement. The Master Servicer shall, within one
Business Day
of receipt, deposit into the Collection Account all amounts
received with
respect to the Non-Serviced Mortgage Loan, the Mortgaged Property
related to the
Non-Serviced Mortgage Loan or any related REO Property.
Section 3.04 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
(a) With respect to each Mortgaged Property securing a Mortgage
Loan
or Serviced Whole Loan (other than the Non-Serviced Mortgage Loan),
the Master
Servicer shall maintain accurate records with respect to each
related Mortgaged
Property reflecting the status of taxes, assessments, ground rents
and other
similar items that are or may become a lien on the related
Mortgaged Property
and the status of insurance premiums payable with respect thereto.
From time to
time, to the extent such payments are to be made from escrowed
funds, the Master
Servicer shall (i) obtain all bills for the payment of such items
(including
renewal premiums), and (ii) effect payment of all such bills with
respect to
such Mortgaged Properties prior to the applicable penalty or
termination date,
in each case employing for such purpose Escrow Payments as allowed
under the
terms of the related Mortgage Loan (other than the Non-Serviced
Mortgage Loan)
or Serviced Whole Loan. With respect to non-escrowed payments, when
the Master
Servicer becomes aware in accordance with the Servicing Standard
that a
Mortgagor (other than with respect to the Non-Serviced Mortgage
Loan) has failed
to make any such payment or, with respect to escrowed loans,
collections from
the Mortgagor are insufficient to pay any such item before the
applicable
penalty or termination date, the Master Servicer shall advance the
amount of any
shortfall as a Property Advance unless the Master Servicer
determines in
accordance with the Servicing Standard that such Advance would be
a
Nonrecoverable Advance. Notwithstanding anything in this Agreement
to the
contrary, the Master Servicer may in accordance with the Servicing
Standard
elect (but is not required) to make a payment from amounts on
deposit in the
Collection Account that would otherwise be a Property Advance with
respect to a
Mortgage Loan notwithstanding that the Master Servicer has
determined that such
a Property Advance would be nonrecoverable if making the payment
would prevent
(i) the related Mortgaged Property from being uninsured or being
sold at a tax
sale or (ii) any event that would cause a loss of the priority of
the lien of
the related Mortgage, or the loss of any security for the related
Mortgage Loan,
