EXHIBIT 4.1
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
GMAC COMMERCIAL MORTGAGE CORPORATION,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
WELLS
FARGO BANK, N.A.,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Bond Administrator and Paying Agent
---------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2004
---------------------------------------
COMM 2004-LNB2
Commercial Mortgage Pass-Through Certificates
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<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 and
Loan REMIC Interests;
Assignment of Mortgage Loan Purchase Agreements.............
Section 2.02 Acceptance by Custodian and the
Trustee......................
Section 2.03 Representations, Warranties and
Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans....
Section 2.04 Representations, Warranties and
Covenants of the
Servicer, Special Servicer, Trustee and the Bond
Administrator...............................................
Section 2.05 Execution and Delivery of
Certificates; Issuance of
Lower-Tier Regular Interests................................
Section 2.06 Miscellaneous REMIC and Grantor
Trust Provisions.............
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer;
Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans
and
the Serviced Companion Loans............................
Section 3.02 Liability of the
Servicer....................................
Section 3.03 Collection of Mortgage Loan and
Serviced Companion Loan
Payments....................................................
Section 3.04 Collection of Taxes, Assessments
and Similar Items;
Escrow Accounts.............................................
Section 3.05 Collection Account; Excess
Liquidation Proceeds Account;
the
Distribution Accounts; Interest Reserve Account and
the Serviced Whole Loan Collection Account..................
Section 3.06 Permitted Withdrawals from the
Collection Account, the
Distribution Accounts and the Serviced Whole Loan
Collection Account; Trust Ledger............................
Section 3.07 Investment of Funds in the
Collection Account, the
Serviced Whole Loan Collection Account, REO Account, the
Lock-Box Accounts, the Cash Collateral Accounts and the
Reserve 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 Appraisals; Realization Upon
Defaulted Mortgage Loans........
Section 3.11 Trustee to Cooperate; Release of
Mortgage Files..............
Section 3.12 Servicing Fees, Trustee Fees and
Special Servicing
Compensation................................................
Section 3.13 Reports to the Bond Administrator;
Collection Account
Statements..................................................
Section 3.14 Annual Statement as to
Compliance............................
Section 3.15 Annual Independent Public
Accountants' Servicing Report......
Section 3.16 Access to Certain
Documentation..............................
Section 3.17 Title and Management of REO
Properties and REO Account
Properties..................................................
Section 3.18 Sale of Specially Serviced Loans
and REO Properties..........
Section 3.19 Additional Obligations of the
Servicer and Special
Servicer; Inspections.......................................
Section 3.20 Authenticating
Agent.........................................
Section 3.21 Appointment of
Custodians....................................
Section 3.22 Reports to the Securities and
Exchange Commission;
Available Information.......................................
Section 3.23 Lock-Box Accounts, Cash Collateral
Accounts, Escrow
Accounts and Reserve Accounts...............................
Section 3.24 Property
Advances............................................
Section 3.25 Appointment of Special
Servicer..............................
Section 3.26 Transfer of Servicing Between
Servicer and Special
Servicer; Record Keeping; Asset Status Report...............
Section 3.27
[Reserved]...................................................
Section 3.28 Limitations on and Authorizations
of the Servicer and
Special
Servicer with Respect to Certain Mortgage Loans.....
Section 3.29
[Reserved]...................................................
Section 3.30 Modifications, Waivers, Amendments
and Consents..............
Section 3.31 Rights of Holders of the Tysons
Corner Center Whole Loan.....
Section 3.32
[Reserved]...................................................
Section 3.33 Certain Intercreditor Matters
Relating to the Whole Loans....
Section 3.34 Certain Matters Relating to the
AFR/Bank of America
Portfolio Whole Loan........................................
Section 3.35 Certain Matters Relating to the
Meadows Mall Whole Loan......
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02 Statements to Certificateholders;
Reports by Bond
Administrator; Other Information Available to the
Holders and Others..........................................
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..................................................
Section 4.07 P&I
Advances.................................................
Section 4.08 Grantor Trust
Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02 Registration, Transfer and
Exchange of Certificates..........
Section 5.03 Mutilated, Destroyed, Lost or
Stolen Certificates............
Section 5.04 Appointment of Paying
Agent..................................
Section 5.05 Access to Certificateholders'
Names and Addresses............
Section 5.06 Actions of
Certificateholders................................
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the
Servicer and the Special
Servicer....................................................
Section 6.02 Merger or Consolidation of the
Servicer......................
Section 6.03 Limitation on Liability of the
Depositor, the Servicer
and Others..................................................
Section 6.04 Limitation on Resignation of the
Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer....................................................
Section 6.05 Rights of the Depositor and the
Trustee in Respect of the
Servicer and the Special Servicer...........................
Section 6.06 Servicer or Special Servicer as
Owner of a Certificate.......
Section 6.07 Certain Matters Relating to the
Non-Serviced Mortgage
Loans.......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee to Act; Appointment of
Successor.....................
Section 7.03 Notification to Certificateholders
and Other Persons.........
Section 7.04 Other Remedies of
Trustee....................................
Section 7.05 Waiver of Past Events of Default;
Termination................
Section 7.06 Trustee as Maker of
Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee and the Bond
Administrator.................
Section 8.02 Certain Matters Affecting the
Trustee and the Bond
Administrator...............................................
Section 8.03 Trustee and Bond Administrator Not
Liable for
Certificates or Mortgage Loans..............................
Section 8.04 Trustee and Bond Administrator May
Own Certificates..........
Section 8.05 Payment of Trustee's and Bond
Administrator's Fees and
Expenses; Indemnification...................................
Section 8.06 Eligibility Requirements for
Trustee and Bond
Administrator...............................................
Section 8.07 Resignation and Removal of the
Trustee or Bond
Administrator...............................................
Section 8.08 Successor Trustee or Bond
Administrator......................
Section 8.09 Merger or Consolidation of Trustee
or Bond Administrator.....
Section 8.10 Appointment of Co-Trustee or
Separate Trustee................
ARTICLE IX
TERMINATION
Section 9.01
Termination..................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01
Counterparts.................................................
Section 10.02 Limitation on Rights of
Certificateholders...................
Section 10.03 Governing
Law................................................
Section 10.04
Notices......................................................
Section 10.05 Severability of
Provisions...................................
Section 10.06 Notice to the Depositor and
Each Rating Agency...............
Section 10.07
Amendment....................................................
Section 10.08 Confirmation of
Intent.......................................
Section 10.09 No Intended Third-Party
Beneficiaries........................
Section 10.10
[Reserved.]..................................................
Section 10.11 Entire
Agreement.............................................
Section 10.12 Third Party
Beneficiaries....................................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form
of Class A-1 Certificate
Exhibit A-2 Form
of Class A-2 Certificate
Exhibit A-3 Form
of Class A-3 Certificate
Exhibit A-4 Form
of Class A-4 Certificate
Exhibit A-5 Form
of Class X-1 Certificate
Exhibit A-6 Form
of Class X-2 Certificate
Exhibit A-7 Form
of Class B Certificate
Exhibit A-8 Form
of Class C Certificate
Exhibit A-9 Form
of Class D Certificate
Exhibit A-10 Form of
Class E Certificate
Exhibit A-11 Form of
Class F Certificate
Exhibit A-12 Form of
Class G Certificate
Exhibit A-13 Form of
Class H Certificate
Exhibit A-14 Form of
Class J Certificate
Exhibit A-15 Form of
Class K Certificate
Exhibit A-16 Form of
Class L Certificate
Exhibit A-17 Form of
Class M Certificate
Exhibit A-18 Form of
Class N Certificate
Exhibit A-19 Form of
Class O Certificate
Exhibit A-20 Form of
Class P Certificate
Exhibit A-21 Form of
Class R Certificate
Exhibit A-22 Form of
Class LR Certificate
Exhibit B-1
Mortgage Loan Schedule
Exhibit B-2
Servicing Fee Rate 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 Regulation S Transfer Certificate
Exhibit H
Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate during the Restricted Period
Exhibit I
Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global
Certificate after the Restricted Period
Exhibit J
Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global
Certificate
Exhibit K
Form of Distribution Date Statement
Exhibit L
Form of Investor Certification
Exhibit M
[Reserved]
Exhibit N
Form of Purchase Option Notice
Exhibit O
Form of Bond Administrator Backup Certification
Exhibit P
Form of Servicer Backup Certification
Exhibit Q
Form of Special Servicer Backup Certification
Exhibit R
Form of Notification from Custodian
Exhibit S-1 Form
of Closing Date Trustee Certification
Exhibit S-2 Form
of Post-Closing Trustee Certification
Exhibit T
Form of Monthly Additional Report on Recoveries and
Reimbursements
Exhibit U
Form of Notice to the Trustee, the Bond Administrator and
S&P from the Servicer Regarding Defeasance of a Mortgage
Loan
Exhibit V
Form of Notice from the Trustee Regarding the AFR/Bank of
America Portfolio Mortgage Loan and the Meadows Mall
Mortgage Loan
TABLE OF SCHEDULES
Schedule 1
Rates to be Used in Determining the Class X-1 and Class X-2
Pass-Through Rates
<PAGE>
Pooling and Servicing Agreement, dated as of March 1, 2004,
among
Deutsche Mortgage & Asset Receiving
Corporation, as Depositor, GMAC Commercial
Mortgage Corporation, as Servicer, Lennar
Partners, Inc., as initial Special
Servicer, Wells Fargo Bank, N.A., as
Trustee and LaSalle Bank National
Association, as Bond Administrator and
Paying Agent.
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
Bond Administrator will elect or will
cause an election to be made to treat the
AFR/Bank of America Portfolio Mortgage
Loan (the "Loan REMIC Loan") (and certain
other related assets) as a separate
REMIC (the "Loan REMIC") pursuant to the
REMIC Declaration dated December 18,
2003 (the "Loan REMIC Declaration"). The
Loan REMIC has issued one
uncertificated Class of regular interests
(the "Loan REMIC Regular Interest") to
be held by the Lower-Tier REMIC and one
uncertificated Class of residual
interest (the "Loan REMIC Residual
Interest"), which will be represented by the
Class LR Certificates.
The Lower-Tier REMIC will hold the Majority Mortgage Loans, the
Loan
REMIC Regular Interest and certain other
related assets subject to this
Agreement, and will issue (i) the
uncertificated Class A-1L-1, Class A-1L-2,
Class A-1L-3, Class A-1L-4, Class A-2L-1,
Class A-2L-2, Class A-2L-3, Class
A-2L-4, Class A-2L-5, Class A-3L-1, Class
A-3L-2, Class A-3L-3, Class A-3L-4,
Class A-3L-5, Class A-4L-1, Class A-4L-2,
Class A-4L-3, Class B-L, Class C-L,
Class D-L-1, Class D-L-2, Class D-L-3,
Class E-L-1, Class E-L-2, Class E-L-3,
Class F-L-1, Class F-L-2, Class G-L-1,
Class G-L-2, Class G-L-3, Class H-L-1,
Class H-L-2, Class J-L-1, Class J-L-2,
Class K-L-1, Class K-L-2, Class L-L,
Class M-L, Class N-L, Class O-L and Class
P-L Interests (the "Lower-Tier Regular
Interests"), as classes of regular
interests in the Lower-Tier REMIC, and (ii)
the Class LR Certificates, which will
represent the sole class of residual
interests in the Lower-Tier REMIC and the
Loan REMIC Residual Interest, within
the meaning of the REMIC Provisions.
The Upper-Tier REMIC will hold the Lower-Tier Regular Interests
and
certain other related assets subject to
this Agreement and will issue 20 Classes
of regular interests in the Upper-Tier
REMIC. The Class A-1, Class A-2, Class
A-3, Class A-4, Class X-1, Class X-2, Class
B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and
Class P Certificates (the "Regular
Certificates") are designated as classes of
regular interests, and the Class R
Certificates are designated as the sole class
of residual interests, in the Upper-Tier
REMIC.
The portion of the Trust Fund consisting of the Loan REMIC
Residual
Interest and the proceeds thereof will be
treated as a grantor trust (the
"Grantor Trust") for federal income tax
purposes. The Class LR Certificates will
represent the sole interests in the Grantor
Trust for federal income tax
purposes and the pro rata undivided
beneficial interests in the portion of the
Trust Fund consisting of the Loan REMIC
Residual Interest.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 1 on the Mortgage Loan Schedule
(the "Tysons Corner Center Mortgage
Loan"), also secures three separate pari
passu mortgage loans to the same
Borrower (together with any replacements
therefor, the "Tysons Corner Center
Pari Passu Loans" or the "Serviced
Companion Loans"). The Tysons Corner Center
Mortgage Loan and the Tysons Corner Center
Pari Passu Loans are collectively
referred to herein as the "Tysons Corner
Center Whole Loan" or the "Serviced
Whole Loan" and will be serviced pursuant
to this Agreement and the Tysons
Corner Center Intercreditor Agreement, as
and to the extent provided herein.
Amounts attributable to the Serviced
Companion Loans will not be assets of the
Trust Fund or the Trust REMICs and will be
beneficially owned by the respective
Serviced Companion Loan Noteholders.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 2 on the Mortgage Loan Schedule
(the "AFR/Bank of America Portfolio
Mortgage Loan"), also secures three
separate pari passu mortgage loans to the
same Borrower (the "AFR/Bank of America
Portfolio Pari Passu Loans" and together
with the AFR/Bank of America Portfolio
Mortgage Loan, the "AFR/Bank of America
Portfolio Senior Loans") and one additional
mortgage loan to the same Borrower
(the "AFR/Bank of America Portfolio B Loan"
and together with the AFR/Bank of
America Portfolio Pari Passu Loans, the
"AFR/Bank of America Portfolio Companion
Loans") which is subordinate to the
AFR/Bank of America Portfolio Senior Loans.
One of the AFR/Bank of America Portfolio
Pari Passu Loans and the AFR/Bank of
America Portfolio B Loan are owned by a
trust fund established pursuant to a
Pooling and Servicing Agreement (the
"GMACCM 2003-C3 Pooling and Servicing
Agreement"), dated as of December 1, 2003,
among GMAC Commercial Mortgage
Securities, Inc., as depositor, GMAC
Commercial Mortgage Corporation, as initial
master servicer (such master servicer or
any successor thereto, the "GMACCM
2003-C3 Servicer"), Lennar Partners, Inc.
as initial special servicer with
respect to all mortgage loans other than
the AFR/Bank of America Portfolio Whole
Loan, Midland Loan Services, Inc. as
initial special servicer with respect to
the AFR/Bank of America Portfolio Whole
Loan (such initial special servicer or
any successor thereto, the "GMACCM 2003-C3
Special Servicer"), LaSalle Bank
National Association, as the initial
trustee (such trustee or any successor
thereto, the "GMACCM 2003-C3 Trustee") and
ABN AMRO Bank N.V., as initial fiscal
agent (such fiscal agent or any successor
thereto, the "GMACCM 2003-C3 Fiscal
Agent"). The AFR/Bank of America Portfolio
Mortgage Loan and the AFR/Bank of
America Portfolio Companion Loans are
collectively referred to herein as the
"AFR/Bank of America Portfolio Whole Loan"
and will be serviced pursuant to the
GMACCM 2003-C3 Pooling and Servicing
Agreement, the AFR/Bank of America
Portfolio A Notes Intercreditor Agreement
and the AFR/Bank of America Portfolio
Agreement Among Noteholders.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 4 on the Mortgage Loan Schedule
(the "Meadows Mall Mortgage Loan"),
also secures one other pari passu mortgage
loan to the same Borrower (the
"Meadows Mall Pari Passu Loan"). The
Meadows Mall Pari Passu Loan is owned by a
trust fund established pursuant to a
Pooling and Servicing Agreement (the
"Wachovia 2003-C9 Pooling and Servicing
Agreement"), dated as of December 1,
2003, among Wachovia Commercial Mortgage
Securities, Inc., as depositor,
Wachovia Bank, National Association, as
initial master servicer (such master
servicer or any successor thereto, the
"Wachovia 2003-C9 Servicer"), Lennar
Partners, Inc. as initial special servicer
(such initial special servicer or any
successor thereto, the "Wachovia 2003-C9
Special Servicer") Wells Fargo Bank
Minnesota, N.A., as trustee (such initial
trustee or any successor thereto, the
"Wachovia 2003-C9 Trustee") and LaSalle
Bank National Association, as the
initial paying agent. The Meadows Mall
Mortgage Loan and the Meadows Mall Pari
Passu Loan are collectively referred to
herein as the "Meadows Mall Whole Loan"
and will be serviced pursuant to the
Wachovia 2003-C9 Pooling and Servicing
Agreement and the Meadows Mall
Intercreditor Agreement.
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 aggregate initial Certificate
Balance (or, with respect to the Class X-1
and Class X-2 Certificates, Notional
Balance) for each Class of Certificates
comprising interests in the Upper-Tier
REMIC.
Corresponding
Original
Corresponding
Certificate Lower-Tier
Lower-Tier
Components
Corresponding Balance or
Regular Principal
of Class X
Certificates Notional Balance
Interests (1)
Balance
Certificates(1)
------------ ----------------
-------------
------------
---------------
Class A-1
$80,000,000 A-1L-1
$10,865,000 A-1L-1
A-1L-2
$22,592,000 A-1L-2
A-1L-3
$24,774,000 A-1L-3
A-1L-4
$21,769,000 A-1L-4
Class A-2
$129,524,000 A-2L-1
$5,258,000 A-2L-1
A-2L-2
$26,269,000 A-2L-2
A-2L-3
$25,854,000 A-2L-3
A-2L-4
$24,456,000 A-2L-4
A-2L-5
$47,687,000 A-2L-5
Class A-3
$157,596,000 A-3L-1
$8,689,000 A-3L-1
A-3L-2
$99,572,000 A-3L-2
A-3L-3
$17,768,000 A-3L-3
A-3L-4
$17,066,000 A-3L-4
A-3L-5
$14,501,000 A-3L-5
Class A-4
$466,533,000 A-4L-1
$27,607,000 A-4L-1
A-4L-2
$61,308,000 A-4L-2
A-4L-3
$377,618,000 A-4L-3
Class X-1 (2)
$963,760,934
N/A
Class X-2 (2)
$931,211,000
N/A
Class B
$25,298,000 B-L
$25,298,000 B-L
Class C
$9,638,000
C-L
$9,638,000 C-L
Class D
$19,275,000 D-L-1
$5,047,000 D-L-1
D-L-2
$4,833,000 D-L-2
D-L-3
$9,395,000 D-L-3
Class E
$8,433,000
E-L-1
$2,722,000 E-L-1
E-L-2
$5,491,000 E-L-2
E-L-3
$220,000 E-L-3
Class F
$9,638,000
F-L-1
$6,651,000 F-L-1
F-L-2
$2,987,000
F-L-2
Class G
$10,842,000 G-L-1
$3,147,000 G-L-1
G-L-2
$7,511,000 G-L-2
G-L-3
$184,000 G-L-3
Class H
$10,842,000 H-L-1
$6,161,000 H-L-1
H-L-2
$4,681,000 H-L-2
Class J
$4,819,000 J-L-1
$2,824,000 J-L-1
J-L-2
$1,995,000 J-L-2
Class K
$6,024,000 K-L-1
$381,000 K-L-1
K-L-2
$5,643,000 K-L-2
Class L
$3,614,000 L-L
$3,614,000 L-L
Class M
$4,819,000 M-L
$4,819,000 M-L
Class N
$2,409,000 N-L
$2,409,000 N-L
Class O
$1,205,000 O-L
$1,205,000 O-L
Class P
$13,251,934 P-L
$13,251,934 P-L
------------
(1)The Lower-Tier Regular Interests and the
Components of the Class X
Certificates that correspond
to any particular Class of Certificates also
correspond to each other
and, accordingly, constitute the "Corresponding
Lower-Tier Regular Interest"
and the "Corresponding Components,"
respectively, with respect
to each other.
(2)The initial Notional Balance of the
Class X-1 Certificates is equal to the
aggregate of the Notional
Amounts of the Components as of the Closing Date;
the initial Notional Balance
of the Class X-2 Certificates is equal to the
aggregate of the Notional
Amounts of the Class X-2 Components as of the
Closing Date.
The initial Certificate Balance of each of the Class R and Class
LR
Certificates is zero. Additionally, the
Class R and Class LR Certificates do not
have a Notional Balance. The Certificate
Balance 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 Balance thereof are
subsequently recovered (including without
limitation after the reduction of the
Certificate Balance 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.
The initial Loan REMIC Balance and interest rate for the Loan
REMIC
Regular Interest is set forth in the Loan
REMIC Declaration. The initial
Lower-Tier Balances and Pass-Through Rates
for the Lower-Tier Regular Interests
are set forth in the definitions of such
terms.
As of the Cut-off Date, the Mortgage Loans have an aggregate
Stated
Principal Balance equal to approximately
$963,760,935.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special
Servicer, the Trustee, the Bond
Administrator and the other parties hereto
hereby 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.
"ABN AMRO Bank": ABN AMRO Bank N.V., Chicago Branch, in its
capacity
as a Mortgage Loan Seller, and its
successors.
"ABN AMRO Bank Purchase Agreement": The Mortgage Loan Purchase
Agreement dated and effective March 17,
2004, between ABN AMRO Bank and the
Depositor.
"Act": The Securities Act of 1933, as it may be amended from time
to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such
in
the Mortgage Loan Schedule and any related
Serviced Companion Loan.
"Additional Trust Fund Expense": Any expense incurred with
respect
to the Trust Fund and not otherwise
included in the calculation of a Realized
Loss that would result in the Holders of
Regular Certificates receiving less
than the full amount of principal and/or
the Interest Accrual Amount to which
they are entitled on any Distribution
Date.
"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 Servicer,
the Special Servicer or the Trustee, as
applicable, has not been reimbursed and
on Servicing Fees, Trustee Fees or Special
Servicing Compensation for which the
Servicer, the Trustee, the Bond
Administrator or the Special Servicer, as
applicable, has not been timely paid or
reimbursed for the number of days from
the date on which such Advance was made or
such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due to
the date of payment or reimbursement
of the related Advance or other such
amount, less any amount of interest
previously paid on such Advance or
Servicing Fees, Trustee Fees or Special
Servicing Compensation; provided, that if,
during any Collection Period in which
an Advance was made, the related Borrower
makes payment of an amount in respect
of which such Advance was made with
interest at the Default Rate, the Advance
Interest Amount payable to the Servicer or
the Trustee shall be paid first from
the amount of Default Interest on the
related Mortgage Loan by such Borrower,
second, from late payment fees on the
related Mortgage Loan by the related
Borrower, and third, upon determining in
good faith that such Advance Interest
Amount is not recoverable from the amounts
described in first or second, from
other amounts on deposit in the Collection
Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as
most
recently published in the "Money Rates"
section of The Wall Street Journal, New
York edition, on or before the related
Record Date). Interest at the Advance
Rate will accrue from (and including) the
date on which the related Advance is
made or the related expense incurred to
(but excluding) the date on which such
amounts are recovered out of amounts
received on the Mortgage Loan as to which
such Advances were made or servicing
expenses incurred or the first Servicer
Remittance Date after a determination of
non-recoverability, as the case may be,
is made, provided that such interest at the
Advance Rate will continue to accrue
to the extent funds are not available in
the Collection Account for such
reimbursement of such Advance.
Notwithstanding the foregoing, with respect to
any Mortgage Loan that has a grace period
that expires after the Determination
Date, such interest shall not begin to
accrue until the day succeeding the
expiration date of such grace period.
"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 Bond Administrator
may obtain and together with the Trustee,
may rely on an Officers' Certificate
of the Servicer, the Special Servicer or
the Depositor to determine whether any
Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation
of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such
Person.
"AFR/Bank of America Portfolio A Notes Intercreditor
Agreement":
With respect to the AFR/Bank of America
Portfolio Mortgage Loan and the AFR/Bank
of America Portfolio Pari Passu Loans, that
certain intercreditor agreement,
dated as December 18, 2003, by and among
the initial holder of the AFR/Bank of
America Portfolio Mortgage Loan and the
initial holder of the AFR/Bank of
America Portfolio Pari Passu Loans, as from
time to time amended, modified or
supplemented.
"AFR/Bank of America Portfolio A-1 Note": With respect to the
AFR/Bank of America Portfolio Whole Loan,
the related promissory note in the
original principal amount of $100,000,000,
which is senior in right of payment
to the AFR/Bank of America Portfolio B Loan
and pari passu in right of payment
to the AFR/Bank of America Portfolio
Mortgage Loan, the AFR/Bank of America
Portfolio A-2 Note and the AFR/Bank of
America Portfolio A-4 Note, as from time
to time amended, supplemented or modified,
and any replacements therefor.
"AFR/Bank of America Portfolio A-1 Note Controlling Class
Representative": As defined in Section
3.18(l)(i).
"AFR/Bank of America Portfolio A-2 Note": With respect to the
AFR/Bank of America Portfolio Whole Loan,
the related promissory note in the
original principal amount of $75,000,000,
which is senior in right of payment to
the AFR/Bank of America Portfolio B Loan
and pari passu in right of payment to
the AFR/Bank of America Portfolio Mortgage
Loan, the AFR/Bank of America
Portfolio A-1 Note and the AFR/Bank of
America Portfolio A-4 Note, as from time
to time amended, supplemented or modified,
and any replacements therefor.
"AFR/Bank of America Portfolio A-4 Note": With respect to the
AFR/Bank of America Portfolio Whole Loan,
the related promissory note in the
original principal amount of $80,000,000,
which is senior in right of payment to
the AFR/Bank of America Portfolio B Loan
and pari passu in right of payment to
the AFR/Bank of America Portfolio Mortgage
Loan, the AFR/Bank of America
Portfolio A-1 Note and the AFR/Bank of
America Portfolio A-2 Note, as from time
to time amended, supplemented or modified,
and any replacements therefor.
"AFR/Bank of America Portfolio Agreement Among Noteholders":
With
respect to the AFR/Bank of America
Portfolio Senior Loans and the AFR/Bank of
America Portfolio B Loan, that certain
agreement among note holders, dated as of
December 18, 2003, by and between the
initial holders of the AFR/Bank of America
Portfolio Senior Loans and the AFR/Bank of
America Portfolio B Loan, as from
time to time amended, modified or
supplemented including without limitation by
the AFR/Bank of America Portfolio Waiver
Letter.
"AFR/Bank of America
Portfolio B Loan":
As defined in the
preliminary statement herein.
"AFR/Bank of
America Portfolio B Loan Noteholder": The
holder of the promissory note for the
AFR/Bank of America Portfolio B Loan.
"AFR/Bank of
America Portfolio Co-Lender Agreement":
Collectively, the AFR/Bank of America Portfolio A Notes Intercreditor
Agreement and the AFR/Bank of America
Portfolio Agreement Among Noteholders.
"AFR/Bank of America Portfolio Companion Loan Noteholders": The
holders of the promissory notes for the
AFR/Bank of America Portfolio Companion
Loans.
"AFR/Bank of America Portfolio Companion Loans": As defined in
the
preliminary statement herein.
"AFR/Bank of America Portfolio Mortgage Loan": As defined in
the
preliminary statement herein.
"AFR/Bank of America Portfolio Nonrecoverable Servicing
Advance":
Any "Nonrecoverable Servicing Advance" (as
defined in the GMACCM 2003-C3 Pooling
and Servicing Agreement) made with respect
to the AFR/Bank of America Portfolio
Mortgage Loan pursuant to and in accordance
with the GMACCM 2003-C3 Pooling and
Servicing Agreement.
"AFR/Bank of America Portfolio Pari Passu Loans": As defined in
the
preliminary statement herein.
"AFR/Bank of America Portfolio Senior Loans": As defined in the
preliminary statement herein.
"AFR/Bank of America Portfolio Service Providers": With respect
to
each AFR/Bank of America Portfolio
Companion Loan that has been deposited into a
securitization trust, the related trustee,
master servicer, special servicer and
any other Person that makes principal
and/or interest advances in respect of
such mortgage loan pursuant to the related
pooling and servicing agreement.
"AFR/Bank of America Portfolio Waiver Letter": The letter
agreement
dated as of January 30, 2004, by the
beneficial owners of certain Classes (or
portions thereof) of Class S-AFR
Certificates, which represent certain
certificated beneficial ownership interests
in the AFR/Bank of America Portfolio
B Loan and issued pursuant to the GMACCM
2003-C3 Pooling and Servicing
Agreement, notifying the GMACCM 2003-C3
Trustee that each such owner has waived
its respective rights under Section 3.18(b)
of the GMACCM 2003-C3 Pooling and
Servicing Agreement and Section 11(c) of
the AFR/Bank of America Portfolio
Agreement Among Noteholders to exercise the
purchase options described therein
with respect to any or all of the AFR/Bank
of America Portfolio Pari Passu
Loans. The Directing Certificateholder is a
third-party beneficiary of such
letter agreement.
"AFR/Bank of America Portfolio Whole Loan": As defined in the
preliminary statement herein.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Allocated Loan
Amount": With respect to each Mortgaged
Property, the portion of the principal
amount of the related Mortgage Loan
allocated to such Mortgaged Property in the
applicable Mortgage, Loan Agreement
or the Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section
3.14 hereof and an annual report of
an Independent accountant required pursuant
to Section 3.15 hereof
"Anticipated
Termination Date": Any
Distribution
Date on
which it is anticipated that the Trust Fund will be
terminated
pursuant to
Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be
such state or local tax laws whose
applicability shall have been brought to
the attention of the Bond Administrator
by either (i) an opinion of counsel
delivered to it, or (ii) written notice from
the appropriate taxing authority as to the
applicability of such state or local
tax laws.
"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 (other than the
Non-Serviced Mortgage Loans) or the
Serviced Whole Loan, an amount calculated
by the Special Servicer by the first
Determination Date following the date the
Special Servicer receives or performs
the required Appraisal equal to the excess,
if any, of (a) the Stated Principal
Balance of such Mortgage Loan or Serviced
Whole Loan over (b) the excess of (i)
90% of the sum of the appraised values (net
of any prior mortgage liens but
including all escrows and reserves (other
than escrows and reserves for taxes
and insurance)) of the related Mortgaged
Properties as determined by Updated
Appraisals obtained by the Special Servicer
(the costs of which shall be paid by
the Servicer or the Special Servicer, as
applicable, as a Property Advance) of
the Mortgaged Properties securing such
Mortgage Loan or Serviced Whole Loan (or,
in the case of Mortgage Loans or the
Serviced Whole Loan having a Stated
Principal Balance under $2,000,000, 90% of
the sum of the Small Loan Appraisal
Estimates of the related Mortgaged
Properties (as described below)) over (ii)
the sum of (A) to the extent not previously
advanced by the Servicer or the
Trustee, all unpaid interest on such
Mortgage Loan or Serviced Whole Loan
(exclusive of Default Interest) at a per
annum rate equal to the Mortgage Rate
(or with respect to the Serviced Whole
Loan, the weighted average of the
Mortgage Rate for the related Mortgage Loan
and Companion Loan), (B) all
unreimbursed Property Advances and the
principal portion of all unreimbursed P&I
Advances, and all unpaid interest on
Advances at the Advance Rate, in respect of
such Mortgage Loan or the Serviced Whole
Loan, (C) any other unpaid Additional
Trust Fund Expenses in respect of such
Mortgage Loan or the Serviced Whole Loan,
and (D) all currently due and unpaid real
estate taxes, ground rents and
assessments and insurance premiums (net of
any escrows and reserves therefor)
and all other amounts due and unpaid with
respect to such Mortgage Loan or the
Serviced Whole Loan (which taxes, premiums
(net of any escrows and reserves
therefor) and other amounts have not been
the subject of an Advance by the
Servicer, the Special Servicer or the
Trustee, as applicable); provided,
however, without limiting the Special
Servicer's obligation to order and obtain
such Appraisal, if the Special Servicer has
not obtained the Updated Appraisal
or Small Loan Appraisal Estimate, as
applicable, referred to above within 90
days of the Appraisal Reduction Event, the
Appraisal Reduction Amount shall be
deemed to be an amount equal to 25% of the
current Stated Principal Balance of
the related Mortgage Loan or Serviced Whole
Loan until such time as such Updated
Appraisal or Small Loan Appraisal Estimate
referred to above is received and the
Appraisal Reduction Amount is calculated.
Within 60 days (or in the case of an
Appraisal Reduction Event occurring by
reason of clause (ii) of the definition
thereof, 30 days) after the Appraisal
Reduction Event (A) with respect to
Mortgage Loans (other than the Non-Serviced
Mortgage Loans) or the Serviced
Whole Loan having a Stated Principal
Balance of $2,000,000 or higher, the
Special Servicer shall obtain an Updated
Appraisal or (B) with respect to
Mortgage Loans (other than the Non-Serviced
Mortgage Loans) or the Serviced
Whole Loan having a Stated Principal
Balance of less than $2,000,000, the
Special Servicer, at its option, shall (i)
provide a Small Loan Appraisal
Estimate within the same time period as an
Appraisal would otherwise be required
and such Small Loan Appraisal Estimate
shall be used in lieu of an Appraisal to
calculate the Appraisal Reduction Amount
for such Mortgage Loans or Serviced
Whole Loan; or (ii) with the consent of the
Controlling Holder, obtain an
Updated Appraisal. On the first
Distribution Date occurring on or after the
delivery of such Updated Appraisal, the
Servicer shall adjust the Appraisal
Reduction Amount to take into account such
Updated Appraisal (regardless of
whether the Updated Appraisal is higher or
lower than the Small Loan Appraisal
Estimate). Each Appraisal Reduction Amount
shall also be adjusted to take into
account any subsequent Small Loan Appraisal
Estimate or Updated Appraisal, as
applicable, and any annual letter updates,
as of the date of each such
subsequent Small Loan Appraisal Estimate,
Updated Appraisal or letter update, as
applicable. With respect to each Mortgage
Loan that is cross-collateralized with
any other Mortgage Loan, the value of each
Mortgaged Property that is security
for each Mortgage Loan in such
cross-collateralized group, as well as the
outstanding amounts under each such
Mortgage Loan shall be taken into account
when calculating such Appraisal Reduction
Amount.
At any time that an Appraisal Reduction Amount exists with
respect
to any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), the Controlling
Holder may, at its own expense, obtain and
deliver to the Servicer, the Special
Servicer and the Trustee an Appraisal that
satisfies the requirements of an
"Updated Appraisal," and upon the written
request of the Controlling Holder, the
Special Servicer shall, subject to the
Servicing Standard, recalculate the
Appraisal Reduction Amount in respect of
such Mortgage Loan or the Serviced
Whole Loan based on such Appraisal and
shall notify the Trustee, the Servicer
and the Controlling Holder of such
recalculated Appraisal Reduction Amount.
Notwithstanding anything herein to the contrary, (a) the
aggregate
Appraisal Reduction Amount related to a
Mortgage Loan (other than a Non-Serviced
Mortgage Loan) or the Serviced Whole Loan
or the related REO Property will be
reduced to zero as of the date the related
Mortgage Loan or Serviced Whole Loan
is paid in full, liquidated, repurchased or
otherwise removed from the Trust
Fund and (b) except as otherwise expressly
noted, the terms of this definition
of "Appraisal Reduction" shall not be
applicable to the Non-Serviced Whole
Loans.
The Serviced Whole Loan will be treated as a single mortgage
loan
for purposes of calculating an Appraisal
Reduction Amount with respect to the
mortgage loans that comprise such Serviced
Whole Loan. Any Appraisal Reduction
Amount in respect of the AFR/Bank of
America Portfolio Mortgage shall be
calculated by the GMACCM 2003-C3 Servicer
in accordance with and pursuant to the
terms of the GMACCM 2003-C3 Pooling and
Servicing Agreement. Any Appraisal
Reduction Amount in respect of the Meadows
Mall Mortgage Loan shall be
calculated by the Wachovia 2003-C9 Servicer
in accordance with and pursuant to
the terms of the Wachovia 2003-C9 Pooling
and Servicing Agreement.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the Non-Serviced Mortgage
Loans) or Serviced Whole Loan, the first
Distribution Date following the earliest of
(i) the date on which such Mortgage
Loan or Serviced Whole Loan becomes a
Modified Mortgage Loan, (ii) the 90th day
following the occurrence of any uncured
delinquency in Monthly Payments with
respect to such Mortgage Loan or Serviced
Whole Loan, (iii) receipt of notice
that the related Borrower has filed a
bankruptcy petition or the date on which a
receiver is appointed and continues in such
capacity in respect of a Mortgaged
Property securing any Mortgage Loan or
Serviced Whole Loan or 60 days after the
Borrower becomes the subject of involuntary
bankruptcy proceedings and such
proceedings are not dismissed, (iv) the
date on which the Mortgaged Property
securing any Mortgage Loan or Serviced
Whole Loan becomes an REO Property, (v)
60 days after the third anniversary of any
extension of a Mortgage Loan or the
Serviced Whole Loan and (vi) the 30th day
(as may be extended by the Special
Servicer, with the consent of the
Controlling Holder, to the 60th day) following
the occurrence of any uncured delinquency
with respect to a Balloon Payment on a
Balloon Loan, unless (a) within 30 days
after such delinquency, the related
Borrower delivers a statement to the effect
that it is diligently pursuing
refinancing and (b) within 90 days (as may
be extended by the Special Servicer,
with the consent of the Controlling Holder,
to 120 days) after such delinquency,
the related Borrower delivers a binding
financing commitment reasonably
acceptable to the Special Servicer and the
Controlling Holder. The Special
Servicer shall notify the Servicer promptly
upon the occurrence of any of the
foregoing events with respect to any
Specially Serviced Loan.
"Approval Report": As
defined in Section 3.27.
"Asset Status Report":
As defined in Section 3.26(f).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of
leases, rents and profits or similar
agreement executed by the Borrower,
assigning to the mortgagee all of the
income, rents and profits derived from the
ownership, operation, leasing or
disposition of all or a portion of such
Mortgaged Property, in the form which
was duly executed, acknowledged and
delivered, as amended, modified, renewed or
extended through the date hereof and from
time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent
instrument, in recordable form, which
is sufficient under the laws of the
jurisdiction in which the related Mortgaged
Property is located to reflect of record
the sale of the Mortgage, which
assignment, notice of transfer or
equivalent instrument may be in the form of
one or more blanket assignments covering
Mortgages encumbering Mortgaged
Properties located in the same
jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Scheduled Payment": With respect to any Mortgage Loan
that
is delinquent in respect of its Balloon
Payment (including any REO Loan as to
which the Balloon Payment would have been
past due), an amount equal to the sum
of (a) the principal portion of the Monthly
Payment that would have been due on
such Mortgage Loan on the related Due Date
(or portion thereof not received),
based on the constant Monthly Payment that
would have been due on such Mortgage
Loan on the related Due Date based on the
constant payment required by the
related Note or the amortization or payment
schedule thereof (as calculated with
interest at the related Mortgage Rate) (if
any), assuming such Balloon Payment
had not become due, after giving effect to
any prior modification, and (b)
interest at the applicable Net Mortgage
Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or
Special
Servicer in connection with an assumption
or modification of a Mortgage Loan or
the Serviced Whole Loan or substitution of
a Borrower (or an interest therein)
thereunder (in each case, as set forth in
the related Loan Documents) permitted
to be executed under the provisions of this
Agreement.
"Authenticating Agent": Any authenticating agent appointed by
the
Bond Administrator pursuant to Section
3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments
or other receipts on account of
principal and interest (including
Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account
pursuant to Section 3.17(b), but
excluding any Excess Liquidation Proceeds)
on or in respect of the Mortgage
Loans, received by or on behalf of the
Servicer in the Collection Period
relating to such Distribution Date, (ii)
all P&I Advances made by the Servicer
or the Trustee, as applicable, in respect
of such Distribution Date, (iii) all
other amounts received by the Servicer in
such Collection Period and required to
be placed in the Collection Account by the
Servicer pursuant to Section 3.05
allocable to such Mortgage Loans, (iv)
without duplication, any late Monthly
Payments on or in respect of the Mortgage
Loans received after the end of the
Collection Period relating to such
Distribution Date but prior to the close of
business on the Business Day prior to the
related Servicer Remittance Date, (v)
any Servicer Prepayment Interest Shortfalls
remitted by the Servicer to the
Collection Account and (vi) with respect to
the Distribution Date in March of
each calendar year, the Withheld Amounts
deposited in the Interest Reserve
Account by the Bond Administrator in
accordance with Section 3.05(d), but
excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the
Special
Servicer or the Trustee, as applicable, for previously
unreimbursed Advances and interest thereon as described in
Section
3.06(d)(ii) and 3.06(d)(iii);
(b) those portions of each payment of interest which represent
the
applicable
Servicing Fee and Trustee Fee and an amount representing any
applicable
Special Servicing Compensation, including interest thereon at
the
Advance Rate as provided in this Agreement;
(c) all amounts in the nature of late payment fees (to the
extent
not
applied to the reimbursement of the Advance Interest Amount
and/or
Additional
Trust Fund Expenses as provided in Section 3.06 hereof), Net
Prepayment
Interest Excess, Net Default Interest, extension fees, loan
service
transaction fees, demand fees, beneficiary statement charges,
Assumption
Fees and similar fees, which the Servicer or the Special
Servicer
is entitled to retain as Servicing Compensation or Special
Servicing
Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due
after
the
related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance
Proceeds
and Net
Condemnation Proceeds with respect to a Mortgage Loan which
represents
any unpaid Servicing Fee, Trustee Fee (including the Bond
Administrator Fee) and Special Servicing Compensation, including
interest
thereon at
the Advance Rate as provided in this Agreement, to which the
Servicer,
any subservicer, Trustee, the Bond Administrator and/or the
Special
Servicer are entitled;
(f) all amounts representing certain expenses reimbursable or
payable to
the Servicer, the Special Servicer, the Bond Administrator or
the
Trustee and other amounts permitted to be retained by the Servicer
or
withdrawn
by the Servicer from the Collection Account to the extent
expressly
set forth in this Agreement (including, without limitation, as
provided
in Section 3.06 and including any indemnities provided for
herein),
including interest thereon as expressly provided in this
Agreement;
(g) any interest or investment income on funds on deposit in
the
Collection
Account, the Distribution Accounts or any REO Account or, to
the extent
payable to the Bond Administrator or the Servicer under the
terms of
the related Mortgage Loan, any Cash Collateral Account, any
Lock-Box
Account or any Reserve Account or, in each case, any interest
on
Permitted
Investments in which such funds may be invested;
(h) all amounts received with respect to each Mortgage Loan
previously
purchased or repurchased from the Trust Fund pursuant to
Sections
2.03(d), 3.18 or 9.01 during the related Collection Period and
subsequent
to the date as of which such Mortgage Loan was purchased or
repurchased;
(i) the amount reasonably determined by the Bond Administrator to
be
necessary
to pay any applicable federal, state or local taxes imposed on
the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC under
the
circumstances and to
the extent described in Section 4.05;
(j) Prepayment Premiums and Yield Maintenance Charges; and
(k) with respect to the Distribution Date occurring in (A)
January
of each
calendar year that is not a leap year and (B) February of each
calendar
year, in each case, unless such Distribution Date is the final
Distribution Date, the Withheld Amounts deposited in the Interest
Reserve
Account by
the Bond Administrator in accordance with Section 3.05(d).
"B Loan": The AFR/Bank of America Portfolio B Loan.
"Balloon Loan": Any Mortgage Loan or Serviced Whole Loan that
requires a payment of principal on the
maturity date in excess of its constant
Monthly Payment.
"Balloon Payment":
With respect to each
Mortgage Loan or
Serviced Whole Loan, the scheduled payment of principal due on the
Maturity
Date (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"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) with
respect to such Classes. Each of the
Trustee, the Bond Administrator and the
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.
"Bond Administrator":
LaSalle Bank
National Association,
and its successor in interest.
"Bond Administrator
Fee": The portion of the Trustee Fee
calculated at a rate equal to 0.00066% per annum payable to the Bond
Administrator pursuant to the terms
hereof.
"Borrower": With
respect to any
Mortgage Loan or
Serviced
Whole Loan, any obligor or obligors on any
related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Breach": As defined in Section 2.03(d).
"Business Day": Any day other than (i) a Saturday or a Sunday,
(ii)
a legal holiday in New York, New York, or
the principal cities in which the
Servicer, Special Servicer, the Trustee or
the Bond Administrator conducts
servicing or trust operations or (iii) a
day on which banking institutions or
savings associations in New York, New York
are authorized or obligated by law or
executive order to be closed.
"Calculated Payments": As defined in Section 2.03(d).
"Cash Collateral Account": With respect to any Mortgage Loan or
Serviced Whole Loan that has a Lock-Box
Account, any account or accounts created
pursuant to the related Mortgage, Loan
Agreement, Cash Collateral Account
Agreement or other Loan Document into which
the Lock-Box Account monies are
swept on a regular basis for the benefit of
the Trustee as successor to the
Mortgage Loan Sellers. Any Cash Collateral
Account shall be beneficially owned
for federal income tax purposes by the
Person who is entitled to receive all
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 in
accordance with the terms of the
related Mortgage Loan or Serviced Whole
Loan. The Servicer shall be permitted to
make withdrawals therefrom for deposit into
the Collection Account or the
Serviced Whole Loan Collection Account, as
applicable. To the extent not
inconsistent with the terms of the related
Mortgage, each such Cash Collateral
Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any
Mortgage
Loan or Serviced Whole Loan, the cash
collateral account agreement, if any,
between the related Originator and the
related Borrower, pursuant to which the
related Cash Collateral Account, if any,
may have been established.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class A-4,
Class
X-1, Class X-2, Class B, Class C, Class D,
Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class R or Class
LR Certificate issued, authenticated and
delivered hereunder.
"Certificate Balance": With respect to any Class of
Certificates
(other than the Class X-1, Class X-2, Class
R and Class LR Certificates) (a) on
or prior to the first Distribution Date, an
amount equal to the aggregate
initial Certificate Balance of such Class,
as specified in the Preliminary
Statement hereto, (b) as of any date of
determination after the first
Distribution Date, the Certificate Balance
of such Class of Certificates on the
Distribution Date immediately prior to such
date of determination after
distributions and Realized Losses allocable
to principal have been made thereon
on such prior Distribution Date
"Certificate Custodian": Initially, the Bond Administrator;
thereafter, any other Certificate Custodian
acceptable to the Depository and
selected by the Bond Administrator.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed
pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the
following:
(a) except as provided in clauses (b) and (d), for the purpose
of
giving any
consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Servicer, the
Special
Servicer,
the Trustee, the Bond Administrator, a Manager or a Borrower or
any Person
known to a Responsible Officer of the Certificate Registrar to
be an
Affiliate of any thereof 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;
(b) for purposes of obtaining the consent of Certificateholders
to
an
amendment of this Agreement, any Certificates beneficially owned by
the
Servicer
or the Special Servicer or an Affiliate thereof shall be deemed
to be
outstanding, unless such amendment relates to compensation of
the
Servicer
or the Special Servicer or benefits the 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 Certificates shall be deemed not to be outstanding;
(c) except as provided in clause (d) below, 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 Loan,
any
Certificates beneficially owned by the Special Servicer or an
Affiliate
thereof shall be deemed not to be outstanding;
(d) for the purpose of exercising its rights as a member of the
Controlling Class or as a Directing Certificateholder (if
applicable), any
Certificate beneficially owned by the Special Servicer or an
Affiliate
thereof
will be deemed outstanding; and
(e) 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 Bond Administrator 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 Servicer, the Special Servicer, the Trustee,
the Bond
Administrator, the Paying Agent or other such Person may rely,
without
limitation, on a Depository Participant listing from the
Depository
or statements furnished by a Person that on their face appear
to be
statements from a Depository Participant to such Person
indicating
that such
Person beneficially owns Certificates.
"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or
Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class
designation.
"Class A-1 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to
2.964%.
"Class A-1L-1
Component":
One of the 41
Components of the
Class X-1 Certificates having a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-1 Interest.
"Class A-1L-1
Interest":
A regular interest in the
Lower-Tier REMIC entitled to monthly
distributions payable thereto pursuant to
Section 4.01.
"Class A-1L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-2 Interest.
"Class A-1L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-3 Interest.
"Class A-1L-3
Interest":
A regular interest in the
Lower-Tier REMIC entitled to monthly
distributions payable thereto pursuant to
Section 4.01.
"Class A-1L-4 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-4 Interest.
"Class A-1L-4 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to
3.600%.
"Class A-2L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-1 Interest.
"Class A-2L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-2 Interest.
"Class A-2L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-3 Interest.
"Class A-2L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2L-4 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-4 Interest.
"Class
A-2L-4 Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2L-5 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-5 Interest.
"Class A-2L-5 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to
4.221%.
"Class A-3L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L-1 Interest.
"Class A-3L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-3L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L-2 Interest.
"Class A-3L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-3L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L-3 Interest.
"Class A-3L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-3L-4 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L-4 Interest.
"Class A-3L-4
Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-3L-5 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L-2 Interest.
"Class A-3L-5 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-4 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to
4.715%.
"Class A-4L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L-1 Interest.
"Class A-4L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-4L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L-2 Interest.
"Class A-4L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-4L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L-3 Interest.
"Class A-4L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-7 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the lesser
of
4.820% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class B-L Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class B-L Interest.
"Class B-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-8 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the lesser
of
4.869% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class C-L Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class C-L Interest.
"Class C-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-9 hereto.
"Class D Pass-Through Rate": A per annum rate equal to 4.934%.
"Class D-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class D-L Interest.
"Class D-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class D-L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class D-L-2 Interest.
"Class D-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class D-L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class D-L-3 Interest.
"Class D-L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-10 hereto.
"Class E Pass-Through Rate": A per annum rate equal to 5.357%.
"Class E-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class E-L Interest.
"Class E-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class E-L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class E-L-2 Interest.
"Class E-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class E-L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class E-L-3 Interest.
"Class E-L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-11 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the lesser
of
5.540% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class F-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class F-L-1 Interest.
"Class F-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class F-L-2
Component": One of the
41 Components
of the
Class X-1 Certificates and one of the 36
Components of the Class X-2
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class F-L-2 Interest.
"Class F-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-12 hereto.
"Class G Pass-Through
Rate": A per annum
rate equal to the
lesser of 5.540% per annum and the Weighted
Average Net Mortgage
Pass-Through
Rate.
"Class G-L-1
Component": One of the
41 Components
of the
Class X-1 Certificates and one of the 36
Components of the Class X-2
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class G-L-1 Interest.
"Class G-L-1
Interest":
A regular interest in the
Lower-Tier REMIC entitled to monthly
distributions payable thereto pursuant to
Section 4.01.
"Class G-L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class G-L-2 Interest.
"Class G-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class G-L-3 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class G-L-3 Interest.
"Class G-L-3
Interest":
A regular interest in the
Lower-Tier REMIC entitled to monthly
distributions payable thereto pursuant to
Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-13 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the lesser
of
5.701% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class H-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class H-L-1 Interest.
"Class H-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class H-L-2
Component": One of the
41 Components
of the
Class X-1 Certificates and one of the 36
Components of the Class X-2
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class H-L-2 Interest.
"Class H-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class Interest Shortfall": On any Distribution Date for any
Class of Certificates, the amount of
interest required to be distributed to the
Holders of such Class pursuant to Section
4.01(b) on such Distribution Date
minus the amount of interest actually
distributed to such Holders pursuant to
such Section, if any.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-14 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class J-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class J-L-1 Interest.
"Class J-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class J-L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class J-L-2 Interest.
"Class J-L-2
Interest":
A regular interest in the
Lower-Tier REMIC entitled to monthly
distributions payable thereto pursuant to
Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-15 hereto.
"Class K Pass-Through
Rate": A per annum
rate equal to the
lesser of 4.997% per annum and the Weighted
Average Net Mortgage
Pass-Through
Rate.
"Class K-L-1 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class K-L-1 Interest.
"Class K-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class K-L-2 Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class K-L-2 Interest.
"Class K-L-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-16 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class L-L Component": One of the 41 Components of the Class
X-1
Certificates and one of the 36 Components
of the Class X-2 Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class L-L Interest.
"Class L-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-22 hereto. The Class
LR Certificates have no Pass-Through Rate,
Certificate Balance or Notional
Balance.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-17 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class M-L Component": One of the 41 Components of the Class
X-1
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class M-L Interest.
"Class M-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-18 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class N-L Component": One of the 41 Components of the Class
X-1
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class N-L Interest.
"Class N-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class O Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-19 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class O-L Component": One of the 41 Components of the Class
X-1
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class O-L Interest.
"Class O-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to the monthly distributions
payable thereto pursuant to Section 4.01.
"Class P Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-20 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser
of
4.997% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class P-L Component": One of the 41 Components of the Class
X-1
Certificates, having a Notional Amount
equal to the Lower-Tier Balance of the
Class P-L Interest.
"Class P-L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-21 hereto. The
Class R Certificates have no Pass-Through
Rate, Certificate Balance or Notional
Balance.
"Class X Certificate": Any Class X-1 or Class X-2 Certificate.
"Class X-1 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-5 hereto.
"Class X-1 Interest Amount": With respect to any Distribution
Date
and the related Interest Accrual Period,
interest equal to the product of (i)
one-twelfth of a per annum rate equal to
the weighted average of the Class X-1
Strip Rates for each of the Components,
weighted on the basis of the respective
Notional Amounts of such Components as of
the beginning of such Distribution
Date and (ii) the Class X-1 Notional Amount
for such Distribution Date.
"Class X-1 Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Balance of the
Lower-Tier Regular Interests as of
the preceding Distribution Date (after
giving effect to the distributions of
principal on such Distribution Date), and
in the case of the first Distribution
Date, as of the Closing Date.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1
Strip Rates for the respective
Components of the Class X-1 Notional Amount
for such Distribution Date, weighted
on the basis of the respective balances of
such Components outstanding
immediately prior to such Distribution
Date.
"Class X-1 Strip Rate": With respect to any Class of Components
(other than Components that are also Class
X-2 Components) for any Distribution
Date, the (i) the Weighted Average Net
Mortgage Pass-Through Rate for such
Distribution Date over (ii) the
Pass-Through Rate for such Component. With
respect to each of the Class of Components
that are also Class X-2 Components
(A) for any Distribution Date occurring on
or before the related Class X-2
Component Crossover Date, the excess, if
any, of (i) the Weighted Average Net
Mortgage Pass-Through Rate for such
Distribution Date over (ii) the sum of (x)
the Pass-Through Rate for such Component
and (y) the rate per annum
corresponding to such Distribution Date as
set forth in Schedule 1 attached
hereto, and (B) for any Distribution Date
occurring after the related Class X-2
Component Crossover Date, the excess, if
any, of (i) the Weighted Average Net
Mortgage Pass-Through Rate for such
Distribution Date over the (ii) Pass-Through
Rate for such Component. In no event will
any Class X-1 Strip Rate be less than
zero.
"Class X-2 Certificate": Any one of the Certificates executed
and
authenticated by the Bond Administrator or
the Authenticating Agent on behalf of
the Depositor in substantially the form set
forth in Exhibit A-6 hereto.
"Class X-2 Component": Each of the Class A-1L-2 Component, the
Class
A-1L-3 Component, the Class A-1L-4
Component, the Class A-2L-1 Component, the
Class A-2L-2 Component, the Class A-2L-3
Component, the Class A-2L-4 Component,
the Class A-2L-5 Component, the Class
A-3L-1 Component, the Class A-3L-2
Component, the Class A-3L-3 Component, the
Class A-3L-4 Component, the Class
A-3L-5 Component, the Class A-4L-1
Component, Class A-4L-2 Component, the Class
A-4L-3 Component, the Class B-L Component,
the Class C-L Component, the Class
D-L-1 Component, the Class D-L-2 Component,
the Class D-L-3 Component, the Class
E-L-1 Component, the Class E-L-2 Component,
the Class E-L-3 Component, the Class
F-L-1 Component, the Class F-L-2 Component,
the Class G-L-1 Component, the Class
G-L-2 Component, the Class G-L-3 Component,
the Class H-L-1 Component, the Class
H-L-2 Component, the Class J-L-1 Component,
the Class J-L-2 Component, the Class
K-L-1 Component, the Class K-L-2 Component
and the Class L-L Component.
"Class X-2 Component Crossover Date": With respect to each
Component
set forth in the table below, the
Distribution Date occurring in the month and
year set forth in the table below:
Component
Cross-Over Date
--------------------------------------------
-------------------------
Class A-1L-2 Component
March 2005
Class A-1L-3 Component
September 2005
Class A-1L-4 Component, Class A-2L-1
Component, Class K-L-1 Component and
Class L-L Component
March 2006
Class A-2L-2 Component, Class J-L-1
Component and Class K-L-2 Component
September 2006
Class A-2L-3 Component, Class H-L-1
Component and Class J-L-2 Component
March 2007
Class A-2L-4 Component, Class H-L-2
Component and Class G-L-1 Component
September 2007
Class A-2L-5 Component, Class A-3L-1
Component and Class G-L-2 Component
March 2008
Class A-3L-2 Component, Class G-L-3
Component and Class F-L-1 Component
September 2008
Class A-3L-3 Component, Class F-L-2
Component and Class E-L-1 Component
March 2009
Class A-3L-4 Component and Class E-L-2
Component
September 2009
Class A-3L-5 Component, Class A-4L-1
Component, Class E-L-3 Component and
Class D-L-1 Component
March 2010
Class A-4L-2 Component and Class D-L-2
Component
September 2010
Class A-4L-3 Component, Class D-L-3
Component, Class BL Component and Class
CL Component
March 2011
"Class X-2 Notional Amount": With respect to any Distribution
Date,
the aggregate of the Notional Amounts of
the Class X-2 Components as of the
close of business on the preceding
Distribution Date, excluding those Class X-2
Components for which the Class X-2
Component Crossover Date has previously
passed.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date
subsequent to the initial Distribution Date
and on or before the Distribution
Date in March 2011, the weighted average of
the Class X-2 Strip Rates for the
respective Components of the Class X-2
Notional Amount, weighted on the basis of
the respective balances of such Components
outstanding immediately prior to such
Distribution Date.
"Class X-2 Strip Rate": With respect to each of the Class X-2
Components (A) for any Distribution Date
occurring on or before the related
Class X-2 Component Crossover Date, the
excess, if any, of (x) the lesser of (i)
the rate per annum corresponding to such
Distribution Date as set forth in
Schedule 1 attached hereto and (ii) the
Weighted Average Net Mortgage
Pass-Through Rate for such Distribution
Date over (y) the Pass-Through Rate for
such Component, and (B) for any
Distribution Date occurring after the related
Class X-2 Component Crossover Date, equal
to zero. In no event will any Class
X-2 Strip rate be less than zero.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": March 17, 2004.
"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 Servicer and reasonably acceptable
to the Trustee, the Bond
Administrator, the Special Servicer and the
Directing Certificateholder.
"CMSA Bond Level File": A data file substantially in the form
of,
and containing the information called for
in, the downloadable form of the "Bond
Level File" available as of the Closing
Date on the CMSA Website, or such other
form for the presentation of such
information and containing such additional
information as may from time to time be
promulgated as recommended 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 "Bond Level File" available as
of the Closing Date on the CMSA
Website, is reasonably acceptable to the
Bond Administrator.
"CMSA Collateral Summary File": The data file substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "CMSA Collateral Summary File"
available as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended 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, is reasonably acceptable
to the Bond Administrator.
"CMSA Financial File": A report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "CMSA
Financial File" available as of the Closing
Date on the CMSA Website, or such
other final form for the presentation of
such information and containing such
additional information as may from time to
time be promulgated as recommended 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 Servicer or the Special Servicer,
as applicable.
"CMSA Loan Periodic Update File": The monthly report
substantially
in the form of, and containing the
information called for in, the downloadable
form of the "CMSA Loan Periodic Update
File" available as of the Closing Date on
the CMSA Website, or such other final form
for the presentation of such
information and containing such additional
information as may from time to time
be promulgated as recommended 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, is
reasonably acceptable to the Servicer or
the Special Servicer, as applicable,
and the Bond Administrator and, provided,
that each CMSA Loan Periodic Update
File shall be accompanied by a Monthly
Additional Report on Recoveries and
Reimbursements, if such report is required
for a particular month, and all
references herein to "CMSA Loan Periodic
Update File" shall be construed
accordingly.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "CMSA
Loan Setup File" available as of the
Closing Date on the CMSA Website, or such
other final form for the presentation of
such information and containing such
additional information as may from time to
time be promulgated as recommended 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 Servicer or the Special Servicer,
as applicable, and the Bond
Administrator.
"CMSA Property File": The monthly report substantially in the
form
of, and containing the information called
for, in the downloadable form of the
"CMSA Property File" available as of the
Closing Date on the CMSA Website, or
such other final form for the presentation
of such information and containing
such additional information as may from
time to time be promulgated as
recommended 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
Servicer or the Special Servicer, as
applicable.
"CMSA Reporting Package": Collectively,
(a) the CMSA Reports;
(b) the following ten supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan
Modification and Corrected Mortgage Loan
Report, (iii) Historical Liquidation
Report, (iv) REO Status Report, (v)
Operating Statement Analysis Report, (vi)
Comparative Financial Status Report,
(vii) Watch List, (viii) NOI Adjustment
Worksheet, (ix) Loan Level Reserve/LOC
Report and (x) Reconciliation of Funds
Report; and
(c) such other reports as the CMSA may designate in the future
and
any additional information as the Servicer,
Special Servicer and the Bond
Administrator may from time to time
agree.
In addition, the CMSA Reporting Package shall include the
Monthly
Additional Report on Recoveries and
Reimbursements, if such report is required
for a particular month (notwithstanding
that such form of report has not been
adopted or recommended by the CMSA).
"CMSA Reports": Reports substantially in the forms of the CMSA
standard reporting package inclusive of the
CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Property
File, the CMSA Financial File, the CMSA
Special Servicer Defaulted Loan File, the
CMSA Bond Level File and the CMSA
Collateral Summary File.
"CMSA Special Servicer Defaulted Loan File:" The report
substantially in the form of, and
containing the information called for in, the
downloadable form of the "CMSA Special
Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such
other final form for the presentation
of such information and containing such
additional information as may from time
to time be promulgated as recommended 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 Supplemental Servicer Reports": The Delinquent Loan
Status
Report, the Historical Loan Modification
and Corrected Mortgage Loan Report, the
Historical Liquidation Report, the REO
Status Report, the Watch List, the NOI
Adjustment Worksheet, the Comparative
Financial Status Report and the Operating
Statement Analysis Report.
"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.
"Co-Lender Agreement": (i) with respect to the Tysons Corner
Center
Whole Loan, the Tysons Corner Center
Intercreditor Agreement, (ii) with respect
to the AFR/Bank of America Portfolio Whole
Loan, the AFR/Bank of America
Portfolio A Notes Intercreditor Agreement
and the AFR/Bank of America Portfolio
Agreement Among Noteholders and (iii) with
respect to the Meadows Mall Whole
Loan, the Meadows Mall Intercreditor
Agreement, in each case, as applicable and
as the context may require.
"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 trust account or accounts created and
maintained by the Servicer pursuant to
Section 3.05(a), which shall be entitled
"GMAC Commercial Mortgage Corporation, for
the benefit of Wells Fargo Bank,
N.A., as Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving
Corporation, COMM 2004-LNB2 Commercial
Mortgage Pass-Through Certificates,
Collection Account" and which must be an
Eligible Account.
"Collection Period": With respect to a Distribution Date and
each
Mortgage Loan, the period that begins
immediately following the Determination
Date in the calendar month preceding the
month in which such Distribution Date
occurs (or, in the case of the Distribution
Date occurring in April 2004, on the
day after the Cut-off Date) and ending at
the close of business on the
Determination Date in the calendar month in
which such Distribution occurs,
provided, that with respect to the payment
by a Borrower of a Balloon Payment on
its related due date or during its related
grace period, the Collection Period
shall extend up to and including the
Business Day prior to the Servicer
Remittance Date preceding the related
Distribution Date.
"Commission": The Securities and Exchange Commission.
"Companion Loan": The Tysons Corner Center Pari Passu Loans,
the
AFR/Bank of America Portfolio Companion
Loans and the Meadows Mall Pari Passu
Loan, as the context may require.
"Companion Loan Noteholder": A holder of a Companion Loan.
"Comparative Financial Status Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Comparative Financial Status Report"
available as of the Closing Date on
the CMSA Website, or such other form for
the presentation of such information
and containing such additional information
as may from time to time be
promulgated as recommended 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 Servicer or
the Special Servicer, as applicable.
"Component": Each of the Class A-1L-1 Component, the Class
A-1L-2
Component, the Class A-1L-3 Component, the
Class A-1L-4 Component, the Class
A-2L-1 Component, the Class A-2L-2
Component, the Class A-2L-3 Component, the
Class A-2L-4 Component, the Class A-3L-1
Component, the Class A-3L-2 Component,
the Class A-3L-3 Component, the Class
A-3L-4 Component, the Class A-3L-5
Component, the Class A-4L-1 Component, the
Class A-4L-2 Component, the Class
A-4L-3 Component, the Class B-L Component,
the Class C-L Component, the Class
D-L-1 Component, the Class D-L-2,
Component, the Class D-L-3 Component, the
Class E-L-1 Component, the Class E-L-2,
Component, the Class E-L-3 Component,
the Class F-L-1 Component, the Class F-L-2
Component, the Class G-L-1 Component,
the Class G-L-2 Component, the Class G-L-3
Component, the Class H-L-1 Component,
the Class H-L-2 Component, the Class J-L-1
Component, the Class J-L-2 Component,
Class K-L-1 Component, the Class K-L-2,
Component, the Class L-L Component, the
Class M-L Component, the Class N-L
Component, the Class O-L Component and the
Class P-L Component.
"Condemnation Proceeds": Any awards resulting from the full or
partial condemnation or any eminent domain
proceeding or any conveyance in lieu
or in anticipation thereof with respect to
a Mortgaged Property by or to any
governmental, quasi-governmental authority
or private entity with condemnation
powers (other than amounts to be applied to
the restoration, preservation or
repair of such Mortgaged Property or
released to the related Borrower in
accordance with the terms of the Mortgage
Loan and, if applicable, the terms of
the Serviced Whole Loan) or, if applicable,
(i) with respect to the Mortgaged
Property securing a Non-Serviced Mortgage
Loan, any portion of such amounts
received by the Trust Fund as holder of the
related Mortgage Loan pursuant to
the applicable Co-Lender Agreement, and
(ii) with respect to the Mortgaged
Property securing the Serviced Whole Loan,
any portion of such amounts payable
to the holders of the Serviced Whole
Loan.
"Controlling Class": As of any date of determination, the Class
of
Principal Balance Certificates with the
latest alphabetical Class designation
that has a then-aggregate Certificate
Balance at least equal to 25% of the
initial aggregate Certificate Balance of
such Class of Principal Balance
Certificates as of the Closing Date. As of
the Closing Date, the Controlling
Class will be the Class P Certificates. For
purposes of determining the
Controlling Class, the Class A-1, Class
A-2, Class A-3 and Class A-4
Certificates collectively will be treated
as one Class.
"Controlling Class Certificateholder": Each holder (or
Certificate
Owner, if applicable) of a Certificate of
the Controlling Class as certified to
the Bond Administrator from time to time by
such holder (or Certificate Owner).
"Controlling Holder": (i) With respect to each Mortgage Loan
(other
than the Serviced Whole Loan), the
Directing Certificateholder; and (ii) with
respect to the Tysons Corner Center Whole
Loan, the holders of the Tysons Corner
Center Whole Loan (or their designees) then
holding a majority of the aggregate
Stated Principal Balance of the Tysons
Corner Center Whole Loan and if the
holders of the Tysons Corner Center Whole
Loan (or their designees) then holding
a majority of the aggregate Stated
Principal Balance of the Tysons Corner Center
Whole Loan are not able to agree on a
course of action that satisfies the
Servicing Standard within 30 days (or such
shorter period as may be required by
the Loan Documents to the extent the
lender's approval is required), the
Directing Certificateholder, as the context
may require.
"Corporate Trust Office": The offices of the Trustee located at
9062
Old Annapolis Road, Columbia, Maryland
21045-1951, Attention: Corporate Trust
Services (CMBS), COMM 2004-LNB2, or the
principal trust office of any successor
Trustee qualified and appointed pursuant to
Section 8.08.
"Corrected Mortgage Loan": As defined under the definition of
Specially Serviced Loan.
"Corresponding Certificate": As defined in the Preliminary
Statement
with respect to any Corresponding Component
or any Corresponding Lower-Tier
Regular Interest.
"Corresponding Component": As defined in the Preliminary
Statement
with respect to any Corresponding
Certificate or any Corresponding Lower-Tier
Regular Interest.
"Corresponding Lower-Tier Regular Interest": As defined in the
Preliminary Statement with respect to any
Class of Corresponding Certificates or
any Component of the Class X-1 or Class X-2
Certificates.
"Credit Lease": With respect to the Credit Lease Loan, the
lease
agreement between the Borrower, as lessor,
and the Tenant, as lessee, of the
related Mortgaged Property.
"Credit Lease Loan": The Mortgage Loan known as "Walgreens
College
Station", identified as Loan No. 62 on the
Mortgage Loan Schedule.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage
Loans listed on the Mortgage Loan Schedule
that are cross-collateralized with
each other.
"Cross-over Date": Means the Distribution Date on which the
Certificate Balance of each Class of
Certificates other than the Class A-1,
Class A-2, Class A-3 and Class A-4
Certificates have been reduced to zero.
"Current Ratings Report": With respect to the Credit Lease Loan,
a
report or reports, dated as of a date no
earlier than three Business Days prior
to the related Determination Date, setting
forth: (i) the publicly available
corporate credit rating of S&P and
Moody's for the Tenant and the Guarantor as
of that date, (ii) the publicly available
corporate credit rating of S&P and
Moody's for such Tenant or Guarantor
included in the Current Ratings Report for
the immediately preceding Determination
Date (except for the first Determination
Date), and (iii) whether such Tenant or
Guarantor has been placed on credit
watch by S&P and Moody's.
"Custodial Agreement": The Custodial Agreement, if any, from time
to
time in effect between the Custodian named
therein and the Trustee, in the form
agreed to by the Trustee and the Custodian,
as the same may be amended or
modified from time to time in accordance
with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21
and,
unless the Trustee is Custodian, named
pursuant to any Custodial Agreement. If a
Custodian is not so appointed, then the
Custodian shall be the Trustee. The
Custodian may (but need not) be the Trustee
or the Servicer or any Affiliate of
the Trustee or the Servicer, but may not be
the Depositor, any Mortgage Loan
Seller or any Affiliate thereof.
"Cut-off Date": March 1, 2004.
"DBRS": Dominion Bond Rating Service Limited, or any successor
thereto.
"DBS": Deutsche Bank
Securities Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan
or
Serviced Companion Loan as of any date of
determination and for any period, the
ratio calculated by dividing the net
operating income or net cash flow, as
applicable, of the related Mortgaged
Property or Mortgaged Properties, as the
case may be, for the most recently ended
12-month trailing or one-year period
for which data is available from the
related Borrower (or year-to-date until
such time that data for the trailing
12-month period is available), before
payment of any scheduled payments of
principal and interest on such Mortgage
Loan or Serviced Companion Loan but after
funding of required reserves and
"normalized" by the Servicer pursuant to
Section 3.13, by the annual debt
service required by such Mortgage Loan or
Serviced Companion Loan. Annual debt
service shall be calculated by multiplying
the Monthly Payment in effect on such
date of determination for such Mortgage
Loan or Serviced Companion Loan by 12
(or such fewer number of months for which
related information is available).
"Default Interest": With respect to any Mortgage Loan or
Serviced
Companion Loan, interest accrued on such
Mortgage Loan or Serviced Companion
Loan at the excess of (i) the Default Rate
over (ii) the related Mortgage Rate.
"Default Rate": With respect to each Mortgage Loan or Serviced
Companion Loan, the per annum rate at which
interest accrues on such Mortgage
Loan or Serviced Companion Loan following
any event of default on such Mortgage
Loan or Serviced Companion Loan, including
a default in the payment of a Monthly
Payment or a Balloon Payment.
"Defaulted Mortgage Loan": A Mortgage Loan or the Serviced
Whole
Loan which is delinquent at least 60 days
in respect of its Monthly Payments or
more than 30 days 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 Loan
Documents and without regard to any
acceleration of payments under the Mortgage
Loan or the Serviced Whole Loan.
"Defeasance Account": As defined in Section 3.30(k).
"Defect": As defined in Section 2.03(d).
"Delinquency":
Any failure
of a Borrower to make a
scheduled Monthly Payment or Balloon
Payment on a Due Date.
"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 such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended 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 "Delinquent Loan Status Report"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable
to the Servicer or the Special Servicer, as
applicable.
"Denomination": As
defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation,
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 earlier of (a) the 6th day of the
month in which the related
Distribution Date occurs or, if such 6th
day is not a Business Day, the
immediately preceding Business Day and (b)
the 4th Business Day prior to the
related Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder or its designee selected
by more than 50% of the Controlling
Class Certificateholders, by Certificate
Balance, as certified by the Bond
Administrator from time to time; provided,
however, that (i) absent such
selection, or (ii) until a Directing
Certificateholder is so selected or (iii)
upon receipt of a notice from a majority of
the Controlling Class
Certificateholders, by Certificate Balance,
that a Directing Certificateholder
is no longer designated, the Controlling
Class Certificateholder that owns the
largest aggregate Certificate Balance of
the Controlling Class will be the
Directing Certificateholder; provided,
further, that in order for the Bond
Administrator to certify the status of the
Directing Certificateholder, the
Directing Certificateholder must provide
notice and certification to the Bond
Administrator as to its status as Directing
Certificateholder upon which the
Bond Administrator shall use its best
efforts to verify such status. In the
event that the Bond Administrator is unable
to verify the status of the
Directing Certificateholder, it shall
provide written notice to the Holders of
the Controlling Class as to the designation
of the Directing Certificateholder.
Delaware Securities Holdings Inc. shall be
the initial Directing
Certificateholder, without necessity of
further notice or selection.
"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
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
l.856-4(b)(5)(ii).
"Discount Rate": With respect to each Mortgage Loan or Serviced
Companion Loan as to which there has been a
prepayment during a Collection
Period and for which a Prepayment Premium
is collected, the yield (compounded
monthly, in the case of the AFR/Bank of
America Portfolio Mortgage Loan) for
"This Week" as reported by the Federal
Reserve Board in Federal Reserve
Statistical Release H.15(519) for the
constant maturity treasury security having
a maturity coterminous with the Maturity
Date of such Mortgage Loan or Serviced
Companion Loan as of the related
Determination Date. If there is no Discount
Rate for instruments having a maturity
coterminous with the Maturity Date of the
applicable Mortgage Loan or Serviced
Companion Loan, then the Discount Rate will
be equal to the linear interpolation of the
yields of the constant maturity
treasury securities with maturities next
longer and shorter than such Maturity
Date.
"Discount Rate Fraction": With respect to the distribution of
any
Prepayment Premium received with respect to
any Mortgage Loan or Serviced
Companion Loan to one or more Classes of
Certificates on any Distribution Date,
a fraction (not greater than 1.0 or less
than zero), (a) the numerator of which
is equal to the excess of (x) the
Pass-Through Rate for such Class of
Certificates over (y) the relevant Discount
Rate and (b) the denominator of
which is equal to the excess of (x) the
Mortgage Rate of the related Mortgage
Loan or Serviced Companion Loan over (y)
the relevant Discount Rate.
"Disqualified Non-U.S. Person": With respect to a Class R or
Class
LR Certificate, (A) 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 applicable successor Form
promulgated by the IRS for the purpose
of providing and certifying the information
provided on Form W-8ECI as of the
Closing Date) 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 or
(B) a U.S. Person with respect to whom
income on the Class R or Class LR
Certificate is attributable to a fixed base
or foreign permanent establishment,
within the meaning of an applicable income
tax treaty, of such Person or any
other U.S. Person.
"Disqualified Organization": Any of (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 (as
defined below) 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, the Lower-Tier REMIC or
the Loan REMIC to be subject to tax or to
fail to qualify as a REMIC at any time
that the Certificates are outstanding. For
the purposes of this definition, the
terms "United States," "State" and
"International Organization" shall have the
meanings set forth in Code Section 7701 or
successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier
Distribution
Account and the Lower-Tier Distribution
Account, all of which may be subaccounts
of a single Eligible Account.
"Distribution Date": The 10th day of each month, or if such 10th
day
is not a Business Day, the Business Day
immediately following such 10th day,
commencing in April 2004.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan or Serviced
Whole
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 or Serviced Whole
Loan after the Maturity Date therefor,
the day of the month set forth in the
related Note on which each Monthly Payment
on such Mortgage Loan or Serviced Whole
Loan had been scheduled to be first due,
and (iii) any REO Loan, the day of the
month set forth in the related Note on
which each Monthly Payment on the related
Mortgage Loan or Serviced Whole Loan
had been scheduled to be first due.
"EDGAR": The
Commission's
Electronic
Data Gathering,
Analysis and Retrieval system.
"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
aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
"Eligible Account": Any of (i) (A) an account or accounts
maintained
with a depository institution or trust
company the short term unsecured debt
obligations or commercial paper of which
are rated at least "A-1" by S&P, "F-1"
by Fitch, "P-2" by Moody's and "R-1
(middle)" by DBRS or, if not rated by DBRS,
an equivalent rating such as those listed
above by two nationally-recognized
statistical rating organizations, in the
case of accounts in which funds are
held for 30 days or less or, in the case of
accounts in which funds are held for
more than 30 days, the long term unsecured
debt obligations of which are rated
at least "AA-" by S&P, "AA-" by Fitch,
"Aa3" by Moody's and "AA (low)" by DBRS,
or if not rated by DBRS, an equivalent
rating such as those listed above by two
nationally-recognized statistical rating
organizations, or (B) as to which the
Bond Administrator 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
then-current ratings on the
Certificates or Serviced Companion Loan
Securities or (ii) a segregated trust
account or accounts maintained with a
federal or state chartered depository
institution or trust company acting in its
fiduciary capacity which, in the case
of a state chartered depository institution
or trust company is subject to
regulations substantially similar to 12
C.F.R.ss. 9.10(b), having in either case
a combined capital and surplus of at least
$50,000,000 and subject to
supervision or examination by federal and
state authority, or (iii) any other
account that, as evidenced by a written
confirmation from each Rating Agency
would not, in and of itself, cause a
downgrade, qualification or withdrawal of
the then-current ratings assigned to the
Certificates or Serviced Companion Loan
Securities, which may be an account
maintained with the Trustee, the Bond
Administrator or the 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 or (ii)
an Institutional Accredited
Investor.
"Environmental
Report": The
environmental audit
report or
reports with respect to each Mortgaged Property delivered to the Mortgage
Loan Sellers in connection with 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). Any Escrow
Account
may be a sub-account of the related Cash
Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the
Servicer
pursuant to the related Mortgage, Cash
Collateral Account Agreement, Lock-Box
Agreement or Loan Agreement for the account
of such Borrower for application
toward the payment of taxes, insurance
premiums, assessments, environmental
remediation and similar items in respect of
the related Mortgaged Property or
related to the satisfaction of closing
conditions for the related Mortgage Loan
(except with respect to any Non-Serviced
Mortgage Loan) or Serviced Whole Loan.
"Euroclear": The
Euroclear System and its successors.
"Event of Default": A Servicer Event of Default or Special
Servicer
Event of Default, as applicable.
"Excess Liquidation Proceeds": With respect to any Mortgage
Loan
(other than a Non-Serviced Mortgage Loan)
or Serviced Companion Loan, the excess
of (i) Net Liquidation Proceeds of such
Mortgage Loan or Serviced Companion Loan
or related REO Property, over (ii) the
amount that would have been received if a
principal payment and all other amounts due
in full had been made with respect
to such Mortgage Loan or Serviced Companion
Loan on the Due Date immediately
following the date on which such proceeds
were received. Any Excess Liquidation
Proceeds in respect of the Loan REMIC Loan
will be deemed distributed in respect
of the Loan REMIC Residual Interest and
deemed deposited in the Excess
Liquidation Proceeds Account.
"Excess Liquidation Proceeds Account": The segregated trust
account
or sub-account created and maintained by
the Bond Administrator pursuant to
Section 3.17(e) in trust for the
Certificateholders and, in the case of the
Serviced Companion Loans, the Serviced
Companion Loan Noteholders, which shall
be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for Holders of
Deutsche Mortgage & Asset Receiving
Corporation, COMM 2004-LNB2 Commercial
Mortgage Pass-Through Certificates [and, if
applicable, Serviced Companion Loan
Noteholders], Excess Liquidation Proceeds
Account." The Excess Liquidation
Proceeds Account must be an Eligible
Account or a sub-account of an Eligible
Account and will be an asset of the
Lower-Tier REMIC.
"Excess Prepayment Interest Shortfall": With respect to the
Mortgage
Loans, the aggregate Prepayment Interest
Shortfalls in excess of the Servicer
Prepayment Interest Shortfall.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report,
Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan
Modification Report, REO Status Report,
Operating Statement Analysis Report, NOI
Adjustment Worksheet, Watch List, or
Annual Compliance Report to be filed with
the Commission, under cover of the
related form required by the Exchange
Act.
"Extended Due Date Mortgage Loans": Any Mortgage Loan with a
grace
period expiring after the Determination
Date but prior to the related
Distribution Date.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor
thereto.
"FHA": The Federal Housing Administration.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan or any Mortgage Loan subject
to repurchase by the related Mortgage
Loan Seller pursuant to Section 2.03(d) or,
in the case of a Whole Loan, subject
to repurchase pursuant to the applicable
Co-Lender Agreement, the recovery of
all Insurance Proceeds, Liquidation
Proceeds, the related Repurchase Price and
other payments or recoveries (including
proceeds of the final sale of any REO
Property) which the Servicer (or in the
case of a Specially Serviced Loan, the
Special Servicer), in its reasonable
judgment as evidenced by a certificate of a
Servicing Officer delivered to the Bond
Administrator and the Custodian (and the
Servicer, if the certificate is from the
Special Servicer), expects to be
finally recoverable. The Servicer shall
maintain records, prepared by a
Servicing Officer, of each Final Recovery
Determination until the earlier of (i)
its termination as Servicer hereunder and
the transfer of such records to a
successor servicer and (ii) five years
following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fitch": Fitch, Inc., or any successor thereto.
"FNMA": The Federal National Mortgage Association, or any
successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act,
or
such successor form as the Commission may
specify from time to time.
"GACC": German American Capital Corporation, in its capacity as
a
Mortgage Loan Seller, and its
successors.
"GACC Purchase
Agreement":
The Mortgage Loan Purchase
Agreement dated and effective March 17,
2004, between GACC and the Depositor.
"General Servicing Standard": With respect to the Servicer, if
the
Servicer is not GMAC Commercial Mortgage
Corporation, or the Special Servicer,
shall mean to diligently service and
administer the Mortgage Loans (other than
the Non-Serviced Mortgage Loans) and the
Serviced Whole Loan for which each is
responsible in the best interests of and
for the benefit of all of the
Certificateholders and, with respect to the
Serviced Whole Loan, for the benefit
of the Serviced Companion Loan Noteholders
(as a collective whole, as determined
by the Servicer or the Special Servicer, as
the case may be, in the exercise of
its reasonable judgment) in accordance with
applicable law, the terms of this
Agreement, the terms of the related
Co-Lender Agreement, if applicable, and the
Mortgage Loans or the Serviced Whole Loan,
as applicable, and to the extent not
inconsistent with the foregoing, in
accordance with the higher of the following
standards of care:
(i)
the same manner in which, and with the same care, skill,
prudence and diligence with which the Servicer or the Special
Servicer, as the case may be, services and administers similar
mortgage loans for other third-party portfolios, giving due
consideration to the customary and usual standards of practice
of
prudent institutional commercial and multifamily mortgage
lenders
servicing their own mortgage loans with a view to the
maximization
of timely recovery of principal and interest on a net present
value
basis on the Mortgage Loans or Specially Serviced Loans, as
applicable, and the best interests of the Trust and the
Certificateholders and, with respect to the Serviced Whole Loan,
the
Certificateholders and the Serviced Companion Loan Noteholders (as
a
collective whole, as determined by the Servicer or the Special
Servicer, as the case may be, in its reasonable judgment); and
(ii) the same care, skill, prudence and diligence with which
the Servicer or the Special Servicer, as the case may be,
services
and administers commercial and multifamily mortgage loans owned
by
the Servicer or the Special Servicer, as the case may be, with
a
view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or
Specially Serviced Loans, as applicable, and the best interests
of
the Trust and the Certificateholders and, with respect to the
Serviced Whole Loan, the Certificateholders and the Serviced
Companion Loan Noteholders (as a collective whole, as determined
by
the Servicer or the Special Servicer, as the case may be, in
its
reasonable judgment),
but without regard to (a) any relationship
that the Servicer or the Special
Servicer, or any Affiliate of the Servicer
or the Special Servicer, may have
with the related Borrower, any Mortgage
Loan Seller, any other party to this
Agreement or any Affiliate of the
foregoing; (b) the ownership of any
Certificate or any Non-Serviced Mortgage
Loan by the Servicer or the Special
Servicer, as the case may be, or any
Affiliate of the Servicer or the Special
Servicer; (c) the Servicer's obligation to
make Advances; (d) the Servicer's or
the Special Servicer's, as the case may be,
right to receive compensation for
its services hereunder or with respect to
any particular transaction; (e) the
ownership, servicing or management for
others of any other mortgage loans or
mortgaged properties by the Servicer or the
Special Servicer or any Affiliate of
the Servicer or the Special Servicer, as
applicable; and (f) any debt that the
Servicer or the Special Servicer or any
Affiliate of the Servicer or the Special
Servicer, as applicable, has extended to
any Borrower (including, without
limitation, any mezzanine financing that
may exist on a future date).
"Global Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-4, Class X-1, Class X-2, Class B, Class
C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P
Certificates.
"GMACCM 2003-C3 Fiscal Agent": As defined in the preliminary
statement herein.
"GMACCM 2003-C3
Pooling and Servicing Agreement": As
defined in the preliminary statement
herein.
"GMACCM 2003-C3 Serviced Companion Loan Paying Agent": The
"Serviced
Companion Loan Paying Agent" under the
GMACCM 2003-C3 Pooling and Servicing
Agreement, which as of the date hereof is
GMAC Commercial Mortgage Corporation.
"GMACCM 2003-C3 Servicer": As defined in the preliminary
statement
herein.
"GMACCM 2003-C3 Special Servicer": As defined in the
preliminary
statement herein.
"GMACCM 2003-C3 Trustee": As defined in the preliminary
statement
herein.
"GMACCM Servicing Standard": With respect to the Servicer, if
the
Servicer is GMAC Commercial Mortgage
Corporation, shall mean the servicing of
the Mortgage Loans (other than the
Non-Serviced Mortgage Loans) and the Serviced
Whole Loan by the Servicer on behalf of the
Trust solely in the best interests
of and for the benefit of all of the
Certificateholders and, with respect to the
Serviced Whole Loan, for the benefit of the
Certificateholders and the Serviced
Companion Loan Noteholders (as a collective
whole, as determined by the Servicer
in the exercise of its reasonable judgment)
in accordance with applicable law,
the terms of this Agreement, the terms of
the related Co-Lender Agreement, if
applicable, and the Mortgage Loans and the
Serviced Whole Loan, as applicable,
and to the extent not inconsistent with the
foregoing, further as follows:
(i) with the same care, skill and diligence as is normal and
usual in its general mortgage servicing and REO Property
management
activities on behalf of third parties or on behalf of itself,
whichever is higher, with respect to mortgage loans that are
comparable to those for which it is responsible under this
Agreement; and
(ii) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans and
the
Serviced Whole Loan;
but without regard to (a) any relationship
that the Servicer or any Affiliate
thereof may have with the related Borrower;
(b) the ownership of any Certificate
or any Non-Serviced Mortgage Loan by the
Servicer or by any Affiliate thereof;
(c) the Servicer's obligation to make
Advances; and (d) the right of the
Servicer (or any Affiliate thereof) to
receive reimbursement of costs, or the
sufficiency of any compensation payable to
it, pursuant to this Agreement or
with respect to any particular
transaction.
"Grantor Trust": As defined in the preliminary statement
herein.
"Guarantor": The guarantor under the Guaranty with respect to
the
Credit Lease.
"Guaranty": With respect to the Credit Lease Loan, a guaranty
agreement executed by an affiliate of the
related Tenant that guarantees the
Tenant's obligations under the related
Credit Lease.
"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 existing, and specifically
including, without limitation, asbestos and
asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea
formaldehyde and any substances
classified as being "in inventory," "usable
work in process" or similar
classification which would, if classified
as unusable, be included in the
foregoing definition.
"Historical Liquidation Report": A report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"Historical Liquidation Report" available
as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended 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 Servicer or the Special Servicer, as
applicable.
"Historical Loan Modification and Corrected Mortgage Loan Report":
A
report substantially in the form of, and
containing the information called for
in, the downloadable form of the
"Historical Loan Modification and Corrected
Mortgage Loan 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 promulgated as recommended 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 Servicer or the Special
Servicer, as applicable.
"Holder": With respect to any Certificate, a Certificateholder;
with
respect to any Lower-Tier Regular Interest
or the Loan REMIC Regular Interest,
the Trustee; and with respect to the REMIC
Residual Interest, the Trustee on
behalf of the Class LR
Certificateholders.
"Indemnified Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Indemnifying Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Independent": When used with respect to any specified Person,
any
such Person who (i) does not have any
direct financial interest, or any material
indirect financial interest, in any of the
Depositor, the Trustee, the Bond
Administrator, the Servicer, the Special
Servicer, any Borrower or Manager or
any Affiliate thereof, and (ii) is not
connected with any such Person thereof as
an officer, employee, promoter,
underwriter, Trustee, Bond Administrator,
partner, director or Person performing
similar functions.
"Independent Contractor": Either (i) any Person that would be
an
"independent contractor" with respect to
the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust
Fund were a real estate investment
trust (except that the ownership tests set
forth in that section shall be
considered to be met by any Person that
owns, directly or indirectly, 35% or
more of any Class or 35% or more of the
aggregate value of all Classes of
Certificates), provided that the Trust Fund
does not receive or derive any
income from such Person and the
relationship between such Person and the Trust
Fund is at arm's length, all within the
meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the 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 Servicer, the Bond
Administrator and the Trustee has been
delivered to the Trustee to that effect)
or (ii) any other Person (including the
Servicer and the Special Servicer) if
the Servicer, on behalf of itself, the
Trustee and the Bond Administrator, 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 physical form without interest
coupons.
"Initial Purchasers":
DBS and ABN AMRO Incorporated or
their respective successors in
interest.
"Initial Resolution Period": As defined in Section 2.03(d).
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (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
the Serviced Whole Loan (including any
amounts paid by the Servicer pursuant to
Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date
and
any Class of Certificates (other than the
Class R and Class LR Certificates), an
amount equal to interest for the related
Interest Accrual Period at the
Pass-Through Rate for such Class on the
related Certificate Balance or Notional
Balance, as applicable, outstanding
immediately prior to such Distribution Date
(provided, that for interest accrual
purposes, any distributions in reduction of
Certificate Balance or Notional Balance, as
applicable, as a result of
allocations of Realized Losses on the
Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been
made on the first day of such
Interest Accrual Period) minus the amount
of any Excess Prepayment Interest
Shortfall allocated to such Class with
respect to such Distribution Date.
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,
the calendar month immediately preceding
the month in which such Distribution
Date occurs.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the
Bond Administrator pursuant to Section
3.05(d), which shall be entitled "Wells
Fargo Bank, N.A., as Trustee, in trust
for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2004-LNB2
Mortgage Pass-Through Certificates,
Interest Reserve Account" and which must be
an Eligible Account or a sub-account of an
Eligible Account. The Interest
Reserve Account shall be an asset of the
Lower-Tier REMIC.
"Interested Person": As of any date of determination, the
Depositor,
the Servicer, Special Servicer, the
Trustee, the Bond Administrator, any
Operating Advisor, any Borrower, any
Manager, any Independent Contractor engaged
by the Special Servicer pursuant to Section
3.17, or any Person known to a
Responsible Officer of either the Trustee
or the Bond Administrator to be an
Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"LaSalle": LaSalle Bank National Association, in its capacity as
a
Mortgage Loan Seller, and its
successors.
"LaSalle Purchase Agreement": The Mortgage Loan Purchase
Agreement,
dated and effective March 17, 2004, between
LaSalle and the Depositor.
"Late Collections": With respect to any Mortgage Loan or
Serviced
Whole Loan, all amounts received thereon
during any Collection Period (or the
related grace period), whether as payments,
Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or
collections of principal or interest due in
respect of such Mortgage Loan or
Serviced Whole Loan (without regard to any
acceleration of amounts due
thereunder by reason of default) on a Due
Date in a previous Collection Period
and not previously recovered. With respect
to any REO Loan, all amounts received
in connection with the related REO Property
during any Collection Period
(including any grace period applicable
under the original Mortgage Loan or
Serviced Whole Loan), whether as Insurance
Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Proceeds or
otherwise, which represent late
collections of principal or interest due or
deemed due in respect of such REO
Loan or the predecessor Mortgage Loan or
Serviced Whole Loan (without regard to
any acceleration of amounts due under the
predecessor Mortgage Loan or Serviced
Whole Loan by reason of default) on a Due
Date in a previous Collection Period
and not previously recovered. The term
"Late Collections" shall specifically
exclude Penalty Charges.
"Liquidation Expenses": All customary, reasonable and necessary
"out
of pocket" costs and expenses incurred by
the Servicer, the Special Servicer,
the Trustee and the Bond Administrator in
connection with the liquidation of any
Mortgage Loan or the Serviced Whole Loan or
the liquidation of an REO Property
or the sale of any Mortgage Loan pursuant
to Section 3.18 or Section 9.01
(including, without limitation, legal fees
and expenses, committee or referee
fees, and, if applicable, brokerage
commissions, and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Mortgage Loan or each
Specially Serviced Loan, as applicable, as
to which the Special Servicer receives a
full or discounted payoff with respect
thereto from the related Borrower or any
Liquidation Proceeds with respect
thereto (in any case, other than amounts
for which a Workout Fee has been paid,
or will be payable), equal to the product
of the Liquidation Fee Rate and the
proceeds of such full or discounted payoff
or the net Liquidation Proceeds (net
of the related costs and expenses
associated with the related liquidation)
related to such liquidated or repurchased
Mortgage Loan or Specially Serviced
Loan, as the case may be; provided,
however, that (a) no such fee shall be
payable with respect to clauses (iii), (v),
(vi) or (vii) of the definition of
Liquidation Proceeds and (b) in the case of
a final disposition consisting of
the repurchase of a Mortgage Loan (or
related REO Loan) by the applicable
Mortgage Loan Seller pursuant to Section
2.03, no such fee shall be paid by a
Mortgage Loan Seller or be due to the
Special Servicer if the applicable
Mortgage Loan Seller repurchases such
Mortgage Loan within the time period set
forth in Section 2.03 (and giving effect to
any applicable extension period
beyond the end of the Initial Resolution
Period set forth in Section 2.03) and,
with respect to any Serviced Companion
Loan, no such fee shall be due to the
Special Servicer under this Agreement in
connection with a repurchase of such
Serviced Companion Loan under the
applicable Serviced Companion Loan
Securitization Agreement.
"Liquidation Fee Rate": A rate equal to 1.0%.
"Liquidation Proceeds": Cash amounts (other than Insurance
Proceeds
and Condemnation Proceeds and REO Revenues)
received by or paid to the Servicer
or the Special Servicer in connection with:
(i) the liquidation of a Mortgaged
Property or other collateral constituting
security for a Defaulted Mortgage
Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise,
exclusive of any portion thereof required
to be released to the related Borrower
in accordance with applicable law and the
terms and conditions of the related
Note and Mortgage; (ii) the realization
upon any deficiency judgment obtained
against a Borrower; (iii) the purchase of a
Defaulted Mortgage Loan by the
Directing Certificateholder, the Special
Servicer or the Persons permitted to
purchase the Tysons Corner Center Pari
Passu Loans pursuant to Section 3.18;
(iv) the repurchase of a Mortgage Loan (or
related REO Loan) by the applicable
Mortgage Loan Seller pursuant to Section
2.03 or of a Serviced Companion Loan by
the seller thereof pursuant to any loan
purchase agreement; (v) the purchase of
all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan
by the Sole Certificateholder, the
Certificateholder owning a majority of the
Percentage Interests in the Controlling
Class, the Special Servicer or the
Servicer pursuant to Section 9.01; (vi) in
connection with any mezzanine
indebtedness that may exist on a future
date, the purchase of the related
Mortgage Loan by a mezzanine lender, to the
extent permitted by the related
mezzanine intercreditor agreement or (vii)
in the case of a Non-Serviced Whole
Loan, the purchase of the related Mortgage
Loan by a Companion Loan Noteholder
or its designee, as applicable, pursuant to
the related Co-Lender Agreement (in
each case, with respect to the AFR/Bank of
America Portfolio Whole Loan and the
Meadows Mall Whole Loan, to the extent of
any portion of such amounts received
by the Trust Fund as holder of the related
Mortgage Loan pursuant to the related
Co-Lender Agreement).
"Loan Agreement": With respect to any Mortgage Loan or the
Serviced
Whole Loan, the loan agreement, if any,
between the related Originator and the
Borrower, pursuant to which such Mortgage
Loan was made.
"Loan Documents": With respect to any Mortgage Loan or the
Serviced
Whole Loan, the documents executed or
delivered in connection with the
origination of such Mortgage Loan or
Serviced Whole Loan or subsequently added
to the related Mortgage File.
"Loan Level Reserve/LOC Report": A report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"Loan Level Reserve/LOC Report" available
as of the Closing Date on the CMSA
Website, or such other final form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended 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 Servicer or the Special Servicer, as
applicable.
"Loan Number": With respect to any Mortgage Loan, the loan number
by
which such Mortgage Loan was identified on
the books and records of the
Depositor or any sub-servicer for the
Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan REMIC": The REMIC that was created by the Loan REMIC
Declaration and that is constituted by the
AFR/Bank of America Portfolio
Mortgage Loan, proceeds thereof, a
beneficial interest in the applicable portion
of the related "REO Property" under the
GMACCM 2003-C3 Pooling and Servicing
Agreement, and amounts with respect thereto
held in the Collection Account and
the Distribution Accounts.
"Loan REMIC Balance": With respect to the Loan REMIC Regular
Interest, as of the Cut-off Date, an amount
equal to $85,000,000 and from time
to time, an amount equal to such amount
reduced by the amount of distributions
thereon and Realized Losses allocable
thereto in all prior periods as described
in Section 4.01(a)(ii) hereof.
"Loan REMIC Declaration": That certain REMIC Declaration dated as
of
December 18, 2003 with respect to the
AFR/Bank of America Portfolio Mortgage as
described in the preliminary statement
herein.
"Loan REMIC Interests": The Loan REMIC Regular Interest and the
Loan
REMIC Residual Interest.
"Loan REMIC Loan": The AFR/Bank of America Portfolio Mortgage
Loan.
"Loan REMIC Regular Interest": The uncertificated "regular
interest," within the meaning of Code
Section 860G(a)(1), in the Loan REMIC. The
principal balance of the Loan REMIC Regular
Interest shall equal the outstanding
Stated Principal Balance of the Loan REMIC
Loan (or, if applicable, the deemed
Stated Principal Balance of any successor
REO Loan). Payments of principal,
interest (including Default Interest) and
prepayment premiums received on or in
respect of the Loan REMIC Loan (or any
amount with respect to any related REO
Property) shall be deemed distributable on
the Loan REMIC Regular Interest and
other collections of amounts received on or
in respect of the Loan REMIC Loan
shall be deemed distributable to the Trust
Fund other than on the Loan REMIC
Regular Interest.
"Loan REMIC Residual Interest": The sole class of "residual
interest," within the meaning of Code
Section 860G(a)(2), in the Loan REMIC. The
Loan REMIC Residual Interest shall be
beneficially owned by the Holders of the
Class LR Certificates and represented by
the Class LR Certificates.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to
the related Loan Documents to
receive revenues therefrom. Any Lock-Box
Account shall be beneficially owned for
federal income tax purposes by the Person
who is entitled to receive the
reinvestment income or gain thereon in
accordance with the terms and provisions
of the related Mortgage Loan or Serviced
Whole Loan and Section 3.07, which
Person shall be taxed on all reinvestment
income or gain thereon. The Servicer
shall be permitted to make withdrawals
therefrom for deposit into the related
Cash Collateral Accounts in accordance with
the terms of the related Mortgage
Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan or
Serviced
Whole Loan, the lock-box agreement, if any,
between the related Originator and
the Borrower, pursuant to which the related
Lock-Box Account, if any, may have
been established.
"Lower-Tier Balance": With respect to any Class of Lower-Tier
Regular Interest, initially will equal the
original principal balance set forth
in the preliminary statement herein, and
from time to time will equal such
amount reduced by the amount of
distributions of the Lower-Tier Distribution
Amount allocable to principal and Realized
Losses allocable thereto in all prior
periods as described in Section 4.01(a)(ii)
hereof.
"Lower-Tier
Distribution Account": The segregated trust account or
sub-account created and maintained by the
Bond Administrator pursuant to Section
3.05(b), which shall be entitled "Wells
Fargo Bank, N.A., as Trustee, in trust
for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2004-LNB2
Commercial Mortgage Pass-Through
Certificates, Lower-Tier Distribution Account"
and which must be an Eligible Account or a
sub-account of an Eligible Account.
The Lower-Tier Distribution Account shall
be an asset of the Lower-Tier REMIC,
other than with respect to any amount
therein representing the proceeds of the
Loan REMIC Residual Interest.
"Lower-Tier Distribution Amount": As defined in Section
4.01(a)(ii).
"Lower-Tier Regular Interests": The Class A-1L-1, Class A-1L-2,
Class A-1L-3, Class A-1L-4, Class A-2L-1,
Class A-2L-2, Class A-2L-3, Class
A-2L-4, Class A-2L-5, Class A-3L-1, Class
A-3L-2, Class A-3L-3, Class A-3L-4,
Class A-3L-5, Class A-4L-1, Class A-4L-2,
Class A-4L-3, Class B-L, Class C-L,
Class D-L-1, Class D-L-2, Class D-L-3,
Class E-L-1, Class E-L-2, Class E-L-3,
Class F-L-1, Class F-L-2, Class G-L-1,
Class G-L-2, Class G-L-3, Class H-L-1,
Class H-L-2, Class J-L-1, Class J-L-2,
Class K-L-1, Class K-L-2, Class L-L,
Class M-L, Class N-L, Class O-L and Class
P-L Interests, issued by the
Lower-Tier REMIC to the Trustee and held as
assets of the Upper-Tier REMIC. Each
Lower-Tier Regular Interest (i) relates to
a Class of Principal Balance
Certificates and to a separate Component,
(ii) is uncertificated, (iii) has an
initial Lower-Tier Balance equal to the
original Lower-Tier Balance set forth in
the preliminary statement herein, (iv) has
a Pass-Through Rate equal to the
Weighted Average Net Mortgage Pass-Through
Rate (treating for this purpose the
Loan REMIC Regular Interest as a Mortgage
Loan), (v) has a "latest possible
maturity date," within the meaning of
Treasury Regulations Section 1.860G-1(a),
that is the Rated Final Distribution Date
and (vi) is entitled to the
distributions in the amounts and at the
times specified in Section 4.01(a)(ii)
and Section 4.01(c).
"Lower-Tier REMIC": A segregated asset pool within the Trust
Fund
consisting of the Mortgage Loans (exclusive
of the Loan REMIC Loan), the Loan
REMIC Regular Interest, collections
thereon, any REO Property acquired in
respect thereof (and, in the event the
Meadows Mall Whole Loan becomes an "REO
Property" under the Wachovia 2003-C9
Pooling and Servicing Agreement, with
respect to the Meadows Mall Mortgage Loan,
a beneficial interest in the
applicable portion of such "REO Property"),
amounts held from time to time in
the Collection Account and the Lower-Tier
Distribution Account, the REO Account,
the Interest Reserve Account and the Excess
Liquidation Proceeds Account (to the
extent of the Trust Fund's interest
therein) in respect thereof, and all other
property included in the Trust Fund that is
not in the Upper-Tier REMIC or the
Grantor Trust.
"MAI": Member of the Appraisal Institute.
"Majority Mortgage Loan": Any Mortgage Loan other than the
AFR/Bank
of America Portfolio Mortgage Loan.
"Management Agreement": With respect to any Mortgage Loan or
the
Serviced Whole Loan, the Management
Agreement, if any, by and between the
Manager and the related Borrower, or any
successor Management Agreement between
such parties.
"Manager": With respect to any Mortgage Loan or the Serviced
Whole
Loan, any property manager for the related
Mortgaged Properties.
"Master
Servicing Fee": With respect to each Mortgage Loan or
Serviced Companion Loan and for any
Distribution Date, an amount per Interest
Accrual Period equal to the product of (i)
one-twelfth of the Master Servicing
Fee Rate and (ii) the Stated Principal
Balance of such Mortgage Loan or Serviced
Companion Loan as of the Due Date in the
immediately preceding Collection Period
(without giving effect to payments of
principal on such Mortgage Loan or
Serviced Companion Loan on such Due
Date).
"Master
Servicing Fee Rate": With respect to each Mortgage Loan or
Serviced Companion Loan, the amount set
forth on Exhibit B-2.
"Maturity Date": With respect to each Mortgage Loan, the
Maturity
Date as set forth on the Mortgage Loan
Schedule.
"Meadows Mall Intercreditor Agreement": With respect to the
Meadows
Mall Mortgage Loan and the Meadows Mall
Pari Passu Loan, that certain
intercreditor agreement, dated as December
1, 2003, by and among the initial
holder of the Meadows Mall Mortgage Loan
and the initial holder of the Meadows
Mall Pari Passu Loan, as from time to time
amended, supplemented or modified.
"Meadows Mall Mortgage Loan": As defined in the preliminary
statement herein.
"Meadows Mall Nonrecoverable Advance": Any "Nonrecoverable
Servicing
Advance" (as defined in the Wachovia
2003-C9 Pooling and Servicing Agreement)
made with respect to the Meadows Mall
Mortgage Loan pursuant to and in
accordance with the Wachovia 2003-C9
Pooling and Servicing Agreement.
"Meadows Mall Pari Passu Loan Noteholder": The holder of the
promissory note for the Meadows Mall Pari
Passu Loan.
"Meadows Mall Pari Passu Loan": As defined in the preliminary
statement herein.
"Meadows Mall Service Providers": With respect to the Meadows
Mall
Pari Passu Loan that has been deposited
into the Wachovia 2003-C9 Trust, the
related Other Trustee, Other Servicer,
Other Special Servicer and any other
Person that makes principal and/or interest
advances in respect of such mortgage
loan pursuant to the Wachovia 2003-C9
Pooling and Servicing Agreement.
"Meadows Mall Whole Loan": As defined in the preliminary
statement
herein.
"Modified Mortgage Loan": Any Specially Serviced Loan which has
been
modified by the Special Servicer pursuant
to Section 3.26 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 current
Monthly
Payments with respect to such Mortgage Loan or Serviced
Companion
Loan),
including any reduction in the Monthly Payment;
(b) except as expressly contemplated by the related Mortgage,
results in
a release of the lien of the Mortgage on any material portion
of the
related Mortgaged Property without a corresponding Principal
Prepayment
in an amount not less than the fair market value (as is), as
determined
by an Appraisal delivered to the Special Servicer (at the
expense of
the related Borrower and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer,
otherwise materially impairs the security for such Mortgage
Loan
or
Serviced Companion Loan or reduces the likelihood of timely payment
of
amounts
due thereon.
"Monthly Additional Report on Recoveries and Reimbursements":
With
respect to the one month period immediately
prior to the related Determination
Date, a report, in a format reasonably
acceptable to the Servicer, the Special
Servicer, the Bond Administrator and the
Trustee and containing the information
set forth on Exhibit T attached hereto with
respect to such period, in all cases
both on a loan-by-loan basis and in the
aggregate. The preparation of each
Monthly Additional Report on Recoveries and
Reimbursements shall constitute a
responsibility of the Servicer and shall
not constitute a responsibility of any
other party. Each CMSA Loan Periodic Update
File prepared by the Servicer shall
be accompanied by a Monthly Additional
Report on Recoveries and Reimbursements;
provided, that the Servicer shall not be
responsible for the failure to properly
prepare such report to the extent that such
failure is the result of the Special
Servicer's failure to provide information
required to be provided by the Special
Servicer hereunder.
"Monthly Payment": With respect to any Mortgage Loan or
Serviced
Companion Loan (other than any REO Loan)
and any Due Date, the scheduled monthly
payment of principal, if any, and interest
at the Mortgage Rate, excluding any
Balloon Payment (but not excluding any
constant Monthly Payment due on a Balloon
Loan), which is payable by the related
Borrower on such Due Date under the
related Note. With respect to an REO Loan,
the monthly payment that would
otherwise have been payable on the related
Due Date had the related Note not
been discharged, 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., and 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.
"Mortgage File": With respect to any Mortgage Loan or Serviced
Companion Loan, collectively, the mortgage
documents listed in Section 2.01(i)
through (xxi) pertaining to such particular
Mortgage Loan or Serviced Companion
Loan and any additional documents required
to be added to such Mortgage File
pursuant to the express provisions of this
Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust
Fund. The mortgage loans originally so
transferred, assigned and held are
identified on the Mortgage Loan Schedule as
of the Closing Date. Such term shall
include any REO Loan, Specially Serviced
Loan or any Mortgage Loan that has been
defeased in whole or in part. Such term
shall not include the Serviced Companion
Loans.
"Mortgage Loan Event of Default": With respect to any Mortgage
Loan
or Serviced Companion Loan, an "event of
default" under the related Loan
Documents.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the LaSalle Purchase Agreement
and the ABN AMRO Bank Purchase
Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in
the
Trust Fund as of the Closing Date being
attached hereto as Exhibit B-1, which
list shall set forth the following
information with respect to each Mortgage
Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of
the
related
Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the Maturity Date for each Mortgage Loan;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date
following the Cut-off
Date;
(i) in the case of the Credit Lease Loan, the identity of the
Tenant
and the
Guarantor under any applicable Guaranty, and the publicly
available
corporate credit ratings of such Tenant and Guarantor as of the
Closing
Date;
(j) the Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(l) whether such Mortgage Loan has a hard lock-box, a springing
hard
lock-box,
a soft-at-closing, springing hard lock-box or no lock-box at
all;
and
(m) identifying any Mortgage Loans with which any such Mortgage
Loans are
cross-collateralized.
Such list may be in the form of more than
one list, collectively setting forth
all of the information required. A
comparable list shall be prepared with
respect to each Serviced Companion
Loan.
"Mortgage Loan Sellers": Each of GACC, LaSalle and ABN AMRO
Bank.
"Mortgage Pool": All of the Mortgage Loans and any successor
REO
Loans, collectively. The Mortgage Pool does
not include the Serviced Companion
Loans or any related REO Loans.
"Mortgaged Property": The underlying property securing a
Mortgage
Loan including any REO Property, consisting
of a fee simple estate, and, with
respect to certain Mortgage Loans, a
leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold
estate in a portion of the property and
a fee simple estate in the remainder, in a
parcel of land improved by a
commercial property, together with any
personal property, fixtures, leases and
other property or rights pertaining
thereto.
"Mortgage Rate": With respect to each Mortgage Loan or Serviced
Companion Loan and any Interest Accrual
Period, the annual rate at which
interest accrues on such Mortgage Loan or
Serviced Companion Loan during such
period (in the absence of a default), as
set forth on the Mortgage Loan
Schedule, as applicable. The "Mortgage
Rate" for purposes of calculating the Net
Mortgage Pass-Through Rate and the Weighted
Average Net Mortgage Pass-Through
Rate (and the rate of the Loan REMIC
Regular Interest in the case of the
AFR/Bank of America Portfolio Mortgage
Loan) shall be the Mortgage Rate of such
Mortgage Loan or Serviced Companion Loan
without giving effect to any Default
Rate and without taking into account any
reduction in the interest rate by a
bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its
equitable powers or a reduction in interest
or principal due to a modification
pursuant to Section 3.30 hereof.
"Net Condemnation Proceeds": Condemnation Proceeds, to the
extent
such proceeds are not to be applied to the
restoration, preservation or repair
of the related Mortgaged Property or
released to the Borrower in accordance with
the express requirements of the Mortgage or
Note or other documents included in
the Mortgage File or in accordance with the
Servicing Standard.
"Net Default Interest": With respect to any Distribution Date,
an
amount equal to the sum of (i) the amount
of the aggregate collected Default
Interest allocable to the Mortgage Loans
received during the preceding
Collection Period, minus (ii) any portions
thereof withdrawn (A) from the
Collection Account pursuant to Section
3.06(b)(ix) for Advance Interest Amounts
and unreimbursed Additional Trust Fund
Expenses incurred during such Collection
Period and (B) from the Serviced Whole Loan
Collection Account pursuant to
Section 3.06(c)(ix) for Advance Interest
Amounts and unreimbursed Additional
Trust Fund Expenses incurred during such
Collection Period.
"Net Income": With respect to any REO Property, all income
received
in connection with such REO Property, less
any operating expenses, including,
but not limited to, utilities, real estate
taxes, property management fees,
insurance premiums, leasing commission
fees, expenses for maintenance and
repairs and any other capital expenses
directly related to such REO Property and
permitted to be incurred under this
Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent
such
proceeds are not to be applied to the
restoration of the related Mortgaged
Property or released to the Borrower in
accordance with the express requirements
of the Mortgage or Note or other documents
included in the Mortgage File or in
accordance with prudent and customary
servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received
with
respect to any Mortgage Loan or the
Serviced Whole 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 Pass-Through Rate": With respect to any Majority
Mortgage Loan, the Serviced Companion Loan
or the Loan REMIC Regular Interest
and any Distribution Date, the per annum
rate equal to the Mortgage Rate for
such Mortgage Loan, Serviced Companion Loan
or the Loan REMIC Regular Interest,
minus, for any such Mortgage Loan, Serviced
Companion Loan or the Loan REMIC
Regular Interest, the aggregate of the
applicable Servicing Fee Rate (in the
case of the Loan REMIC Regular Interest and
the Meadows Mall Mortgage Loan, the
applicable Servicing Fee Rate and the
servicing fee rate pursuant to the related
Other Pooling and Servicing Agreement) and
Trustee Fee Rate; provided, however,
that for purposes of calculating
Pass-Through Rates, the Net Mortgage
Pass-Through Rate for any Majority Mortgage
Loan, Serviced Companion Loan or the
Loan REMIC Regular Interest will be
determined without regard to any
modification, waiver or amendment of the
terms of such Majority Mortgage Loan,
Serviced Companion Loan or Loan REMIC
Regular Interest, whether agreed to by the
Servicer or resulting from a bankruptcy,
insolvency or similar proceeding
involving the Borrower.
Notwithstanding the foregoing, if any such Majority Mortgage
Loan,
Serviced Companion Loan or the Loan REMIC
Regular Interest does not accrue
interest on the basis of a 360-day year
consisting of twelve 30-day months, then
the "Net Mortgage Pass-Through Rate" of
such Majority Mortgage Loan, Serviced
Companion Loan or the Loan REMIC Regular
Interest for any Interest Accrual
Period will be the annualized rate at which
interest would have to accrue in
respect of such Majority Mortgage Loan,
Serviced Companion Loan or the Loan
REMIC Regular Interest on the basis of a
360-day year consisting of twelve
30-day months in order to produce the
aggregate amount of interest actually
accrued in respect of such Majority
Mortgage Loan, Serviced Companion Loan or
the Loan REMIC Regular Interest at the
related Mortgage Rate less the Servicing
Fee Rate and the Trustee Fee Rate during
such Interest Accrual Period; provided,
however, that with respect to each such
Majority Mortgage Loan, Serviced
Companion Loan or the Loan REMIC Regular
Interest, the Mortgage Rate for the
one-month period (i) preceding the Due
Dates in (a) January and February in each
year that is not a leap year or (b)
February only in each year that is a leap
year will be determined exclusive of the
amounts withheld from that month and
(ii) preceding the Due Date in March, will
be determined inclusive of the
amounts withheld from the immediately
preceding February and, if applicable,
January.
"Net Prepayment Interest Excess": The excess amount, if any,
that
the aggregate of all Prepayment Interest
Excess for all Mortgage Loans exceeds
the aggregate of all Prepayment Interest
Shortfalls for all Mortgage Loans as of
any Distribution Date.
"Net Prepayment Interest Shortfall": Means the amount, if any,
that
the aggregate of Prepayment Interest
Shortfalls for all Mortgage Loans that are
not Specially Serviced Loans exceed the
Prepayment Interest Excess for such
Mortgage Loans as of any Distribution
Date.
"Net REO Proceeds": With respect to each REO Property, REO
Proceeds
with respect to such REO Property net of
any insurance premiums, taxes,
assessments 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
Loan REMIC or the Lower-Tier REMIC if such
REMIC has the right to renegotiate
the terms of such lease, including any
lease renewed or extended on behalf of
the REMIC.
"NOI Adjustment Worksheet": A report substantially in the form
of,
and containing the information called for
in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, or
such other form for the presentation of
such information and containing such
additional information as may from time to
time be promulgated as recommended 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 "NOI Adjustment Worksheet"
available as of the Closing Date on
the CMSA Website, is acceptable to the
Servicer or the Special Servicer, as
applicable.
"Non-Serviced Mortgage Loan Service Providers": The AFR/Bank of
America Portfolio Service Providers and the
Meadows Mall Service Providers, as
the context may require.
"Non-Serviced Mortgage Loan": The AFR/Bank of America Portfolio
Mortgage Loan and the Meadows Mall Mortgage
Loan, as the context may require.
"Non-Serviced Whole Loan": The AFR/Bank of America Portfolio
Whole
Loan and the Meadows Mall Whole Loan, as
the context may require.
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": (a) Any Nonrecoverable P&I Advance
or
Nonrecoverable Property Advance, (b) the
AFR/Bank of America Portfolio
Nonrecoverable Advances and (c) the Meadows
Mall Nonrecoverable Advances.
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, has determined
that such Workout-Delayed
Reimbursement Amounts, together with any
accrued and unpaid interest thereon,
would not ultimately be recoverable from
Late Collections or any other recovery
on or in respect of (i) with respect to
Nonrecoverable P&I Advances, general
collections on the related Mortgage Loans
and REO Loans and (ii) with respect to
Nonrecoverable Property Advances, the
general collections on the related
Mortgage Loans (or if applicable, the
Serviced Whole Loan) and REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of a
Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer, the
Special Servicer or the Trustee, as
applicable, would not be ultimately
recoverable, together with any accrued and
unpaid interest thereon, from late
payments, Condemnation Proceeds, Insurance
Proceeds, Liquidation Proceeds and other
collections on or in respect of the
related Mortgage Loan or REO Loan, which
shall be evidenced by an officer
certificate as provided by Section 4.07(c).
In the case of a
cross-collateralized Mortgage Loan, such
recoverability determination shall take
into account the cross collateralization of
the related cross-collateralized
Mortgage Loan.
"Nonrecoverable Property Advance": Any Property Advance
previously
made or proposed to be made in respect of a
Mortgage Loan (other than the
Meadows Mall Mortgage Loan and the AFR/Bank
of America Portfolio Mortgage Loan)
or the Serviced Whole Loan or any REO
Property that, in the reasonable judgment
of the Servicer, the Special Servicer or
the Trustee, as applicable, would not
be ultimately recoverable, together with
any accrued and unpaid interest
thereon, from late payments, Condemnation
Proceeds, Insurance Proceeds,
Liquidation Proceeds and other collections
on or in respect of the related
Mortgage Loan, REO Loan or Serviced Whole
Loan, which shall be evidenced by an
officer certificate as provided by Section
3.24(d). The determination as to the
recoverability of any property advance
previously made or proposed to be made in
respect of (i) the AFR/Bank of America
Portfolio Whole Loan shall be made by the
GMACCM 2003-C3 Servicer, pursuant to the
GMACCM 2003-C3 Pooling and Servicing
Agreement and (ii) the Meadows Mall Whole
Loan shall be made by the Wachovia
2003-C9 Servicer, pursuant to the Wachovia
2003-C9 Pooling and Servicing
Agreement. Any such determination made by
the GMACCM 2003-C3 Servicer or the
Wachovia 2003-C9 Servicer, as applicable,
shall be conclusive and binding on the
Certificateholders and may, in all cases,
be conclusively relied upon by the
Servicer, the Special Servicer and the
Trustee, as applicable. In the case of a
cross-collateralized Mortgage Loan, such
recoverability determination shall take
into account the cross collateralization of
the related cross-collateralized
Mortgage Loan.
"Note": With respect to any Mortgage Loan or Serviced Companion
Loan
as of any date of determination, the note
or other evidence of indebtedness
and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage
Loan, or Serviced Companion Loan including
any amendments or modifications, or
any renewal or substitution notes, as of
such date.
"Notice of
Termination": Any of
the notices
given to the
Trustee, the Bond Administrator and the Servicer by the Certificateholder
owning a majority of the Percentage
Interests in the
Controlling Class,
the
Special Servicer or the Servicer pursuant
to Section 9.01(c).
"Notional Amount" or "Notional Balance": As of any date of
determination: (i) with respect to all of
the Class X-1 Certificates as a Class,
the Class X-1 Notional Amount as of such
date of determination; (ii) with
respect to any Class X-1 Certificate, the
product of the Percentage Interest
evidenced by such Certificate and the Class
X-1 Notional Amount as of such date
of determination; (iii) with respect to all
of the Class X-2 Certificates as a
Class, the Class X-2 Notional Amount as of
such date of determination; (iv) with
respect to any Class X-2 Certificate, the
product of the Percentage Interest
evidenced by such Certificate and the Class
X-2 Notional Amount as of such date
of determination; and (v) with respect to
any Component, as set forth in the
definition of such Component.
"Officers' Certificate": A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the
President or a Vice President
(however denominated) and by the Treasurer,
the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any
Trust Officer or other officer of the
Servicer or Special Servicer customarily
performing functions similar to those
performed by any of the above designated
officers, any Servicing Officer and
also with respect to a particular matter,
any other officer to whom such matter
is referred because of such officer's
knowledge of and familiarity with the
particular subject, or an authorized
officer of the Depositor, and delivered to
the Depositor, the Trustee, the Bond
Administrator or the Servicer, as the case
may be.
"Operating Statement Analysis Report": A report substantially in
the
form of, and contain the information called
for in, the downloadable form of the
"Operating Statement Analysis Report"
available as of the Closing Date on the
CMSA Website or in such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended by the CMSA for commercial
mortgage-backed securities
transactions generally and, insofar as it
requires the presentation of
information in addition to that called for
by the form of the "Operating
Statement Analysis Report" available as of
the Closing Date on the CMSA Website,
is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"Opinion of Counsel": A written opinion of counsel, who may,
without
limitation, be counsel for the Depositor,
the Special Servicer or the Servicer,
as the case may be, acceptable to the Bond
Administrator and the Trustee, except
that any opinion of counsel relating to (a)
qualification of the Upper-Tier
REMIC or the Lower-Tier REMIC or the Loan
REMIC as a REMIC or the imposition of
tax under the REMIC Provisions on any
income or property of any REMIC, (b)
compliance with the REMIC Provisions
(including application of the definition of
"Independent Contractor"), (c)
qualification of the Grantor Trust as a grantor
trust or (d) a resignation of the Servicer
or the Special Servicer pursuant to
Section 6.04, must be an opinion of counsel
who is Independent of the Depositor
and the Servicer.
"Originator": Any of (i) the Mortgage Loan Sellers, and (ii)
with
respect to any Mortgage Loan acquired by a
Mortgage Loan Seller, the originator
of such Mortgage Loan.
"Other Depositor": With respect to each Other Pooling and
Servicing
Agreement, the related depositor
thereunder.
"Other Indemnified Parties": As defined in Section 6.07.
"Other Pooling and Servicing Agreement": Any of the GMACCM
2003-C3
Pooling and Servicing Agreement, the
Wachovia 2003-C9 Pooling and Servicing
Agreement or a Serviced Companion Loan
Securitization Agreement, as applicable,
each as from time to time amended,
supplemented or modified.
"Other Servicer": With respect to each Other Pooling and
Servicing
Agreement, the related master servicer
thereunder.
"Other Special Servicer": With respect to each Other Pooling
and
Servicing Agreement, the related special
servicer thereunder.
"Other Trustee":
With respect to each Other Pooling and
Servicing Agreement, the related trustee
thereunder.
"Ownership Interest": Any record or beneficial interest in a Class
R
or Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by
the
Servicer or the Trustee pursuant to Section
4.07. Each reference to the payment
or reimbursement of a P&I Advance shall
be deemed to include, whether or not
specifically referred to and without
duplication, payment or reimbursement of
interest thereon at the Advance Rate from
and including the date of the making
of such P&I Advance to and including
the date of payment or reimbursement.
"P&I Advance Determination Date": With respect to any
Distribution
Date, the second Business Day prior to such
Distribution Date.
"Paid After Determination Date Report": An electronic report
setting
forth, on a loan by loan basis, all
payments due during a Collection Period but
received after the Determination Date for
such Collection Period, in a form
agreed to by the Servicer and the Directing
Certificateholder.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class R and Class LR
Certificates), the Pass-Through Rate for
such Class as set forth below:
Class
Pass-Through Rate
------------
-----------------------------
Class A-1
Class A-1 Pass-Through Rate
Class A-2
Class A-2 Pass-Through Rate
Class A-3
Class A-3 Pass-Through Rate
Class A-4
Class A-4 Pass-Through Rate
Class X-1
Class X-1 Pass-Through Rate
Class X-2
Class X-2 Pass-Through Rate
Class B
Class B Pass-Through Rate
Class C
Class C Pass-Through Rate
Class D
Class D Pass-Through Rate
Class E
Class E Pass-Through Rate
Class F
Class F Pass-Through Rate
Class G
Class G Pass-Through Rate
Class H
Class H Pass-Through Rate
Class J
Class J Pass-Through Rate
Class K
Class K Pass-Through Rate
Class L
Class L Pass-Through Rate
Class M
Class M Pass-Through Rate
Class N
Class N Pass-Through Rate
Class O
Class O Pass-Through Rate
Class P
Class P Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through
Rate. With respect to the Loan REMIC
Regular Interest, the Mortgage Rate of the
Loan REMIC Loan. The Pass-Through
Rate for each Component shall equal the
Pass-Through Rate for the Corresponding
Certificate.
"Paying Agent": The paying agent appointed pursuant to Section
5.04.
"Penalty Charges": With respect to any Mortgage Loan or
Serviced
Companion Loan (or successor REO Loan), any
amounts collected thereon that
represent late payment charges or Default
Interest, other than a Yield
Maintenance Charge.
"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 Balance or Notional
Balance, 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.
"Performing Loan": A Mortgage Loan or the Serviced Whole Loan
that
is not a Specially Serviced Loan.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand
or having a scheduled maturity on or
before the Business Day preceding the date
upon which such funds are required to
be drawn, regardless of whether issued by
the Depositor, the Servicer, the
Special Servicer, the Trustee, the Bond
Administrator 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 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 Serviced Companion Loan
Securities (provided, however, if
any of the following obligations or
securities is not rated by DBRS, then no
confirmation will be required from DBRS so
long as such obligation or security
has the required ratings, if any, by two
nationally-recognized statistical
rating organizations):
(a) direct 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 each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity,
which
cannot
vary or change, (B) if bearing a variable rate of interest,
have
its interest
rate tied to a single interest rate index plus a fixed spread
(if any)
and move proportionately with that index, and (C) not be
subject
to
liquidation prior to its 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 systemwide bonds and notes), the Federal
Home
Loan Banks
(consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing
Association
(debt
obligations), the Financing Corp. (debt obligations), and the
Resolution
Funding Corp. (debt obligations); provided, however, that each
investment
described in this clause must (A) have a predetermined fixed
dollar
amount of principal due at maturity, which cannot vary or
change,
(B) if
bearing a variable rate of interest, its interest rate tied to
a
single
interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) 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, with
maturities
of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating
category
by each
Rating Agency or, if not rated by S&P, Fitch or DBRS,
otherwise
acceptable
to S&P, Fitch or DBRS, 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 Serviced Companion Loan Securities; provided,
however,
that the
investment described in this clause must (A) have a
predetermined
fixed
dollar amount of principal due at maturity, which cannot vary
or
change,
(B) if bearing a variable rate of interest, have its interest
rate
tied to a
single interest rate index plus a fixed spread (if any) and
move
proportionately with that index, and (C) not be subject to
liquidation
prior to
its maturity;
(e) fully Federal Deposit Insurance Corporation-insured 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, and, if such demand and time deposits in, or certificates
of
deposit
of, or bankers' acceptances are not fully insured by the
Federal
Deposit
Insurance Corporation, the short term obligations of such bank
or
trust
company, savings and loan association or savings bank are rated
in
the
highest short term rating category by each Rating Agency or, if
not
rated by
S&P, Fitch or DBRS, otherwise acceptable to S&P, Fitch or
DBRS,
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 Serviced
Companion
Loan
Securities; provided, however, that each investment described in
this
clause
must (A) have a predetermined fixed dollar amount of principal
due
at
maturity, which cannot vary or change, (B) if bearing a variable
rate
of
interest, its interest rate tied to a single interest rate index
plus a
fixed
spread (if any) and move proportionately with that index, and
(C)
not be
subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days
rated
in the highest
long-term unsecured rating category by each Rating Agency
or, if not
rated by S&P, Fitch or DBRS, otherwise acceptable to S&P,
Fitch
or DBRS,
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 Serviced
Companion
Loan Securities; provided, however, that each investment
described
in this clause must (A) have a predetermined fixed dollar
amount
of
principal due at maturity, which cannot vary or change, (B) if
bearing
a variable
rate of interest, have its interest rate tied to a single
interest
rate index plus a fixed spread (if any) and move
proportionately
with that
index, and (C) not be subject to liquidation prior to its
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)
with
maturities of not more than 365 days and that is rated in the
highest
short-term
unsecured debt rating by each Rating Agency or, if not rated by
S&P,
Fitch or DBRS, otherwise acceptable to S&P, Fitch or DBRS,
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 Serviced
Companion
Loan
Securities; provided, however, that each investment described in
this
clause
must (A) have a predetermined fixed dollar amount of principal
due
at
maturity, which cannot vary or change, (B) if bearing a variable
rate
of
interest, have its interest rate tied to a single interest rate
index
plus a
fixed spread (if any) and move proportionately with that index,
and
(C) not be
subject to liquidation prior to their maturity;
(h) units of taxable money market mutual funds, issued by
regulated
investment
companies, which seek to maintain a constant net asset value
per share
(including the Federated Prime Obligation Money Market Fund
(the
"Fund"))
so long as any such fund is rated in the highest short-term
unsecured
debt ratings category by each Rating Agency or, if not rated by
S&P,
Fitch or DBRS, otherwise acceptable to S&P, Fitch or DBRS,
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 Serviced
Companion
Loan
Securities; 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 Servicer, Special
Servicer,
Trustee or the Bond Administrator, 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 Serviced Companion Loan Securities.
provided, however, that no instrument or
security shall be a Permitted
Investment (a) unless such instrument is a
"cash flow investment" earning a
passive return in the nature of interest
pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security
evidences a right to receive only
interest payments or (ii) the right to
receive principal and interest payments
derived from the underlying investment
provides a yield to maturity in excess of
120% of the yield to maturity at par of
such underlying investment or (c) if it
may be redeemed of a price below the
purchase price. No Permitted Investment may
be purchased at a price in excess of par or
sold prior to maturity if such sale
would result in a loss of principal or a
tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a Class R or Class LR
Certificate, any Person or agent thereof
that is a Qualified Institutional
Buyer, an Affiliated Person or an
Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any
other Person so designated by the
Certificate Registrar who is unable to
provide 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 will not cause
the Upper-Tier REMIC, the Lower-Tier
REMIC or the Loan REMIC to fail to qualify
as a REMIC at any time that the
Certificates are outstanding, (c) a Person
that is a Disqualified Non-U.S.
Person and (d) a Plan or any Person
investing the assets of a Plan.
"Person": Any individual, corporation, limited liability
company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that each Mortgage Loan
does
not prepay prior to its respective Maturity
Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution
Date,
the aggregate amount, with respect to all
Mortgage Loans that were subject to
Principal Prepayment in full or in part, or
as to which Insurance Proceeds,
Liquidation Proceeds or Condemnation
Proceeds, as applicable, were received by
the Servicer or Special Servicer for
application to such Mortgage Loans, in each
case after the Due Date in the month of
such Distribution Date and on or prior
to the related Determination Date, the
amount of interest accrued at the
Mortgage Rate for such Mortgage Loans on
the amount of such Principal
Prepayments, Insurance Proceeds,
Liquidation Proceeds and Condemnation Proceeds
after the Due Date relating to such
Collection Period and accruing in the manner
set forth in the related Loan Documents, to
the extent such interest is
collected by the Servicer or the Special
Servicer (without regard to any
Prepayment Premium or Yield Maintenance
Charge actually collected).
"Prepayment Interest Shortfall": With respect to any
Distribution
Date, for each Mortgage Loan that was
subject to a Principal Prepayment in full
or in part and which did not include a full
month's interest, or as to which
Insurance Proceeds, Liquidation Proceeds or
Condemnation Proceeds, as
applicable, were received by the Servicer
or Special Servicer for application to
such Mortgage Loan, in each case after the
Due Date in the calendar month
preceding such Distribution Date but prior
to the Due Date in the related
Collection Period, the amount of interest
that would have accrued at the Net
Mortgage Pass-Through Rate for such
Mortgage Loan on the amount of such
Principal Prepayment, Insurance Proceeds or
Condemnation Proceeds during the
period commencing on the date as of which
such Principal Prepayment, Insurance
Proceeds, Liquidation Proceeds or
Condemnation Proceeds, as applicable, were
applied to the unpaid principal balance of
the Mortgage Loan and ending on (and
including) the day immediately preceding
such Due Date (without regard to any
Prepayment Premium or Yield Maintenance
Charge actually collected). A Prepayment
Interest Shortfall in respect of the
AFR/Bank of America Portfolio Mortgage Loan
shall be a Prepayment Interest Shortfall in
respect of the Loan REMIC Regular
Interest.
"Prepayment Premium": Any premium, fee or other additional
amount
(other than a Yield Maintenance Charge)
paid or payable on a Mortgage Loan or
Serviced Companion Loan by a Borrower as
the result of a Principal Prepayment
thereon, not otherwise due thereon, in
respect of principal or interest, which
is intended to compensate the holder of the
related Note for prepayment.
"Primary Servicing Fee Rate": With respect to each Mortgage
Loan
(other than the Non-Serviced Mortgage
Loans) or Serviced Companion Loan, the
amount set forth on Exhibit B-2.
"Prime Rate": The "Prime Rate" as published in the "Money
Rates"
section of The Wall Street Journal (or, if
such section or publication is no
longer available, such other comparable
publication as determined by the Bond
Administrator in its reasonable discretion)
as may be in effect from time to
time, or, if the "Prime Rate" no longer
exists, such other comparable rate (as
determined by the Bond Administrator in its
reasonable discretion) as may be in
effect from time to time. The Bond
Administrator shall notify in writing both
the Servicer and the Special Servicer with
regard to any determination of the
Prime Rate in accordance with the
parenthetical in the preceding sentence.
"Principal Allocation Fraction": With respect to any
Distribution
Date, each of Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F, Class G and
Class H Certificates and any Prepayment
Premiums or Yield Maintenance Charges
collected, a fraction the numerator of
which is the Principal Distribution Amount
allocable to such Class of
Certificate for such Distribution Date and
the denominator of which is the
Principal Distribution Amount for all
Classes of Certificates for such
Distribution Date.
"Principal Balance Certificate": The Class A-1, Class A-2,
Class
A-3, Class A-4, 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 and Class P Certificates.
"Principal Distribution Amount": For any Distribution Date, an
amount equal to (i) the sum of:
(a) the principal component of all scheduled Monthly Payments
(other
than
Balloon Payments) due on the Mortgage Loans on or before the
related
Due Date
(if received or advanced);
(b) the principal component of all Assumed Scheduled Payments due
on
or before
the related Due Date (if received or advanced) with respect to
any
Mortgage Loan that is delinquent in respect of its Balloon
Payment;
(c) the Stated Principal Balance of each Mortgage Loan that
was,
during the
related Collection Period, repurchased from the Trust Fund in
connection
with a Breach or Defect pursuant to Section 2.03, purchased
pursuant
to Section 3.18, or purchased from the Trust Fund pursuant to
Section
9.01;
(d) the portion of Unscheduled Payments allocable to principal
of
any
Mortgage Loan that was liquidated during the related Collection
Period;
(e) the principal component of all Balloon Payments and any
other
principal
payment on any Mortgage Loan received on or after the Maturity
Date
thereof, to the extent received during the related Collection
Period;
(f) all other Principal Prepayments on Mortgage Loans received
in
the
related Collection Period; and
(g) any other full or partial recoveries in respect of principal
of
Mortgage
Loans, including Insurance Proceeds, Liquidation Proceeds and
Net
REO
Proceeds received in the related Collection Period,
as reduced
by (ii) any (1) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from
principal
collections on the Mortgage Loans or, with respect to Property
Advances,
the
Serviced Whole Loan, in a period during which such principal
collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date and (2)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from
principal
collections on the Mortgage Loans or, with respect to Property
Advances,
the
Serviced Whole Loan, 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
clauses (1) and (2) above, if any of the amounts that were
reimbursed
from principal collections on the Mortgage Loans or, with
respect to
Property Advances, the Serviced Whole Loan, are subsequently
recovered
on the related Mortgage Loan or, with respect to Property
Advances,
the Serviced Whole 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
Borrower
on a Mortgage Loan or Serviced Companion
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.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global
Certificates with respect to the Class X-1,
Class X-2, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates if and
so long as such class of Certificates
is registered in the name of a nominee of
the Depository.
"Private Placement Memorandum": Means the Private Placement
Memorandum, dated February 27, 2004,
pursuant to which the Class X-1, Class X-2,
Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O
and Class P Certificates will be offered
for sale.
"Privileged Person": Means a party to this Agreement, a Rating
Agency, a designee of the Depositor
(including any financial market publisher),
the initial Directing Certificateholder,
each Underwriter and any other person
who delivers to the Bond Administrator in
the form attached hereto as Exhibit L
(which form may be provided by the Bond
Administrator upon request), a
certification that such person is a
Certificateholder, a Certificate Owner of a
Certificate or a prospective purchaser of a
Certificate.
"Property Advance": As to any Mortgage Loan (other than any
Non-Serviced Mortgage Loan) or the Serviced
Whole Loan, any advance made by the
Servicer, the Special Servicer or the
Trustee, as applicable, in respect of
Property Protection Expenses or any
expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or
the Serviced Whole Loan or to pay
taxes and assessments or insurance premiums
with respect to the related
Mortgaged Property, to the extent the
making of any such advance is specifically
provided for in this Agreement, including,
but not limited to, as provided in
Section 3.04 and Section 3.24, as
applicable. Each reference to the payment or
reimbursement of a Property Advance shall
be deemed to include, whether or not
specifically referred to, payment or
reimbursement of interest thereon at the
Advance Rate from and including the date of
the making of such Advance to and
including the date of payment or
reimbursement. Notwithstanding anything to the
contrary, "Property Advance" shall not
include allocable overhead of the
Servicer or the Special Servicer, as
applicable, 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 a Mortgage Loan or REO
Property.
"Property Protection Expenses": With respect to any Mortgage
Loan
(other than the Non-Serviced Mortgage
Loans) or Serviced Companion Loan, any
costs and expenses incurred by the Servicer
or the Special Servicer pursuant to
Sections 3.04, 3.08(a), 3.10(b), 3.10(e),
3.10(f), 3.10(h), 3.10(i), 3.10(k),
3.11, 3.12(e), 3.17(a), 3.17(b), 3.17(c),
3.18(g) or 3.28(a) or indicated herein
as being a cost or expense of the Trust
Fund (and, in the case of the Serviced
Whole Loan, the Serviced Companion Loan
Noteholders) or the Loan REMIC, the
Lower-Tier REMIC, or Upper-Tier REMIC to be
advanced by the Servicer or the
Special Servicer, as applicable.
"Prospectus": The Depositor's Prospectus dated February 18, 2004,
as
supplemented by the Prospectus Supplement
dated February 27, 2004, relating to
the offering of the Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class
C, Class D and Class E Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional
buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company
qualified to write the related insurance
policy in the relevant jurisdiction which
shall have a rating of "A" or better
by Fitch, an insurance financial strength
rating of "A" or better by S&P, and a
claims paying ability of "A" or better by
DBRS or, if not rated by DBRS, an
equivalent rating such as those listed
above by two nationally-recognized
statistical rating organizations and (ii)
in the case of the fidelity bond and
the errors and omissions insurance required
to be maintained pursuant to Section
3.08(d), shall have a claims paying ability
rated by each Rating Agency no lower
than two ratings categories (without regard
to pluses or minuses or numeric
qualifications) lower than the highest
rating of any outstanding Class of
Certificates or Serviced Companion Loan
Securities from time to time, but in no
event lower than "A" by Fitch (or if such
company is not rated by Fitch, is
rated at least A:IX by A.M. Best's Key
Rating Guide) and in the case of S&P, an
insurance financial strength rating of "A"
or better, and in the case of DBRS,
in no event lower than "A" or, if not rated
by DBRS, an equivalent rating such
as those listed above by two
nationally-recognized statistical rating
organizations, unless in any such case each
of the Rating Agencies has confirmed
in writing that obtaining the related
insurance from an insurance company that
is not rated by each of the Rating Agencies
(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
or Serviced Companion Loan Securities.
"Qualified Mortgage": A Mortgage Loan that is a "qualified
mortgage"
within the meaning of Code Section
860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section
1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any
substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": A mortgage loan which
must,
on the date of substitution: (i) have an
outstanding Stated Principal Balance,
after application of all scheduled payments
of principal and/or interest due
during or prior to the month of
substitution, not in excess of the Stated
Principal Balance of the Removed Mortgage
Loan as of the Due Date in the
calendar month during which the
substitution occurs; (ii) have a Mortgage Rate
not less than the Mortgage Rate of the
Removed Mortgage Loan; (iii) have the
same Due Date as the Removed Mortgage Loan;
(iv) accrue interest on the same
basis as the Removed Mortgage Loan (for
example, on the basis of a 360-day year
and the actual number of days elapsed); (v)
have a remaining term to stated
maturity not greater than, and not more
than two years less than, the remaining
term to stated maturity of the Removed
Mortgage Loan; (vi) have an original loan
to value ratio not higher than that of the
Removed Mortgage Loan and a current
loan to value ratio not higher than the
then current loan-to-value ratio of the
Removed Mortgage Loan; (vii) materially
comply as of the date of substitution
with all of the representations and
warranties set forth in the applicable
Mortgage Loan Purchase Agreement; (viii)
have an Environmental Report that
indicates no material adverse environmental
conditions with respect to the
related Mortgaged Property and which will
be delivered as a part of the related
Mortgage File; (ix) have an original Debt
Service Coverage Ratio of not less
than the original Debt Service Coverage
Ratio of the Removed Mortgage Loan and a
current Debt Service Coverage Ratio of not
less than the current Debt Service
Coverage Ratio of the Removed Mortgage
Loan; (x) be determined by an Opinion of
Counsel (at the applicable Mortgage Loan
Seller's expense) to be a "qualified
replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date
three years prior to the Rated Final
Distribution Date; (xii) not be substituted
for a Removed Mortgage Loan unless
the Trustee has received prior confirmation
in writing by each Rating Agency
that such substitution will not in and of
itself result in the withdrawal,
downgrade, or qualification of the rating
assigned by the Rating Agency to any
Class of Certificates then rated by the
Rating Agency (the cost, if any, of
obtaining such confirmation to be paid by
the applicable Mortgage Loan Seller)
(provided that no such confirmation from
any Rating Agency shall be required
with respect to any Companion Loan
Securities); (xiii) have been approved by the
Directing Certificateholder in its sole
discretion; (xiv) prohibit defeasance
within two years of the Closing Date and
(xv) not be substituted for a Removed
Mortgage Loan if it would result in the
termination of the REMIC status of any
Trust REMIC or the imposition of tax on any
of such REMICs other than a tax on
income expressly permitted or contemplated
to be received by the terms of this
Agreement, as determined by an Opinion of
Counsel. In the event that one or more
mortgage loans are substituted for one or
more Removed Mortgage Loans, then the
amounts described in clause (i) shall be
determined on the basis of aggregate
Stated Principal Balances and the rates
described in clause (ii) above and the
remaining term to stated maturity referred
to in clause (v) above shall be
determined on a weighted average basis;
provided that no individual mortgage
rate shall be lower than the highest
Pass-Through Rate (that is a fixed rate not
subject to a cap equal to the Weighted
Average Net Mortgage Rate) of any Class
of Certificates having an outstanding
Stated Principal Balance. When a Qualified
Substitute Mortgage Loan is substituted for
a Removed Mortgage Loan, the
applicable Mortgage Loan Seller shall
certify that the Mortgage Loan meets all
of the requirements of the above definition
and shall send such certification to
the Trustee.
"Rated Final Distribution Date": The Distribution Date in March
2039.
"Rating Agency": means (i) as to the Certificates, any of S&P,
Fitch
or DBRS and (ii) as to any provisions
relating to any Serviced Companion Loan
that secures Serviced Companion Loan
Securities, each rating agency then rating
any related class of such Serviced
Companion Loan Securities or their successors
in interest. References herein to the
highest long-term unsecured debt rating
category of a Rating Agency shall mean
"AAA" with respect to each of S&P, Fitch
and DBRS, 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.
If a provision in this Agreement fails to specify a rating
category
for a particular Rating Agency then rating
any Serviced Companion Loan
Securities, then such provision, if then
applicable to the Serviced Whole Loan,
shall be construed to include the rating
category of such Rating Agency that is
equivalent to the lowest specified rating
category of those Rating Agencies for
which a category is specified in that
provision.
"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 (i) the aggregate
Certificate Balance of the Regular
Certificates (other than the Class X-1 and
Class X-2 Certificates) after giving
effect to distributions of principal on
such Distribution Date and allocation of
Class Interest Shortfalls exceeds (ii) 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 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) immediately
following the Determination Date preceding
such Distribution Date. In the case
of the Loan REMIC, a Realized Loss with
respect to the Loan REMIC Loan shall be
a Realized Loss with respect to the Loan
REMIC Regular Interest.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l (viii).
"Reconciliation of Funds Report": A report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"Reconciliation of Funds Report" available
as of the Closing Date on the CMSA
Website, or such other final form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended 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 Report"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable
to the Bond Administrator, the Servicer or
the Special Servicer, as applicable.
"Record Date": With respect to each Distribution Date, the close
of
business on the last day of the calendar
month preceding the month in which such
Distribution Date occurs or, if such day is
not a Business Day, the preceding
Business Day.
"Regular Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-4, Class X-1, Class X-2, Class B, Class
C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P
Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class X-1, Class
X-2,
Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O
and Class P Certificates issued as such on
the Closing Date.
"Regulation S Investor": With respect to a transferee of an
interest
in a Regulation S Global Certificate, a
transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the
REMIC Provisions.
"REMIC Certificates": The Certificates.
"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.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased
from
the Trust Fund pursuant to the terms hereof
or as to which one or more
Qualifying Substitute Mortgage Loans are
substituted.
"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:
(a) 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);
(b) 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;
(c) any amount
received or accrued, directly or indirectly, with
respect to
such REO Property if any Person Directly Operates such REO
Property;
(d) 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
(e) rent attributable to personal property unless such personal
property
is leased under, or in connection with, the lease of such REO
Property
and, for any taxable year of the Trust Fund, such rent is no
greater
than 15 percent of the total rent received or accrued under, or
in
connection
with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Loan": Any Mortgage Loan (other than a Non-Serviced
Mortgage
Loan) or the Serviced Whole Loan as to
which the related Mortgaged Property has
become an REO Property.
"REO Proceeds":
With respect to any REO Property and the
related REO Loan, all revenues received by the Special
Servicer with
respect
to such REO Property or REO Loan which do
not constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property other than the Mortgaged
Properties securing the Non-Serviced
Mortgage Loans, title to which has been
acquired by the Special Servicer on behalf
of the Trust Fund through
foreclosure, deed in lieu of foreclosure or
otherwise.
"REO Status
Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date
on the CMSA Website,
or in such other form for the presentation of such information
and containing
such additional information as may from time to time be promulgated as
recommended 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 "REO Status
Report" available
as of the Closing Date on the CMSA Website,
is reasonably acceptable to the
Servicer or the Special Servicer, as
applicable.
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage
Loan
that is substituted for one or more Removed
Mortgage Loans.
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased or purchased pursuant to
Sections 2.03(d) or 9.01, or any Specially
Serviced Loan or any REO Loan to be sold
pursuant to Section 3.18, an amount,
calculated by the Servicer or the Special
Servicer, as applicable, equal to:
(a) the Stated Principal Balance of such Mortgage Loan as of
the
date of
purchase; plus
(b) all accrued and unpaid interest on such Mortgage Loan at
the
related
Mortgage Rate in effect from time to time to but not including
the
Due Date
in the month of purchase (or, if the Mortgage Loan has an
interest
accrual period that ends on or after such Due Date, through the
end of
such interest accrual period); plus
(c) all related unreimbursed Property Advances and accrued and
unpaid
interest on related Advances at the Advance Rate, and unpaid
Special
Servicing Fees and Workout Fees allocable to such Mortgage Loan
(and, in
the case of the AFR/Bank of America Portfolio Mortgage Loan and
the
Meadows Mall Mortgage Loan, unpaid fees payable to the related
Other
Servicer,
Other Special Servicer or Other Trustee allocable to such
Mortgage
Loan); plus
(d) any Liquidation Fee due pursuant to Section 3.12 hereunder
allocable
to such Mortgage Loan; plus
(e) if such Mortgage Loan (or related REO loan) is being
purchased
by a
Mortgage Loan Seller pursuant to Section 2.03(d), to the extent
not
otherwise
included in the amount described in clause (c) of this
definition, all reasonable out-of-pocket expenses reasonably
incurred or
to be
incurred by the Servicer, the Special Servicer, the Depositor,
the
Bond
Administrator and the Trustee in respect of the Breach or
Defect
giving
rise to the repurchase obligation, including any expenses
arising
out of the
enforcement of the repurchase obligation, including, without
duplication, any amounts previously reimbursed from the Collection
Account
or the
Serviced Whole Loan Collection Account, as applicable, plus
accrued
and unpaid
interest thereon at the Advance Rate, to the extent payable to
the
Servicer, the Special Servicer or the Trustee.
For purposes of this Agreement, the "Repurchase Price" in respect
of
(i) a Tysons Corner Center Pari Passu Loan
shall be the repurchase price paid by
the related mortgage loan seller under the
related Serviced Companion Loan
Securitization Agreement and (ii) the
AFR/Bank of America Portfolio Mortgage
Loan shall be the portion of amounts
received hereunder from the related
Non-Serviced Mortgage Loan Service Provider
in connection with the purchase
thereof by the AFR/Bank of America
Portfolio B Loan Noteholder pursuant to the
terms of the AFR/Bank of America Portfolio
Agreement Among Noteholders.
"Request for Release": A request for a release signed by a
Servicing
Officer, substantially in the form of
Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan or the
Serviced Whole Loan, reserve accounts, if
any, established pursuant to the
Mortgage or the Loan Agreement and any
Escrow Account. Any Reserve Account may
be a sub-account of a related Cash
Collateral Account. Any Reserve Account shall
be beneficially owned for federal income
tax purposes by the Person who is
entitled to receive the reinvestment income
or gain thereon in accordance with
the terms and provisions of the related
Mortgage Loan and Section 3.07, which
Person shall be taxed on all reinvestment
income or gain thereon. The Servicer
shall be permitted to make withdrawals
therefrom for deposit into the related
Cash Collateral Account, if applicable, or
the Collection Account or for the
purposes set forth under the related
Mortgage Loan or Serviced Whole Loan.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a breach with respect to any
Mortgage
Loan, the 90-day period following the end of the applicable
Initial
Resolution Period;
(b) for purposes of remediating a Defect with respect to any
Mortgage
Loan that is and remains a Performing Loan throughout the
applicable
Initial Resolution Period, the period commencing at the end of
the
applicable Initial Resolution Period and ending on, and including,
the
earlier of
(i) the 90th day following the end of such Initial Resolution
Period and
(ii) the 45th day following the applicable Mortgage Loan
Seller's
receipt of written notice from the Servicer or the Special
Servicer
of the occurrence of any Servicing Transfer Event with respect
to
such
Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(c) for purposes of remediating a Defect with respect to any
Mortgage
Loan that is a Performing Loan as of the commencement of the
applicable
Initial Resolution Period, but as to which a Servicing Transfer
Event
occurs during such Initial Resolution Period, the period
commencing
at the end
of the applicable Initial Resolution Period and ending on, and
including,
the 90th day following the earlier of (i) the end of such
Initial
Resolution Period and (ii) the applicable Mortgage Loan
Seller's
receipt of
written notice from the Servicer or the Special Servicer of the
occurrence
of such Servicing Transfer Event; and
(d) for purposes of remediating a Defect with respect to any
Mortgage
Loan that is a Specially Serviced Loan as of the commencement
of
the
applicable Initial Resolution Period, zero (-0-) days, provided
that,
if the
applicable Mortgage Loan Seller did not receive written notice
from
the
Servicer or the Special Servicer of the relevant Servicing
Transfer
Event as
of the commencement of the applicable Initial Resolution
Period,
then such
Servicing Transfer Event will be deemed to have occurred during
such
Initial Resolution Period and clause (c) of this definition will
be
deemed to
apply.
"Responsible Officer": (i) any officer of the Asset-Backed
Securities Trust Services Group of the Bond
Administrator (and, in the event
that the Bond Administrator is the
Certificate Registrar or the Paying Agent, of
the Certificate Registrar or the Paying
Agent, as applicable) and (ii) any
officer of the Trustee assigned to the
Corporate Trust Office with direct
responsibility for the administration of
this Agreement and also, with respect
to a particular matter, any other officer
to whom such matter is referred
because of such officer's knowledge of and
familiarity with the particular
subject, and, in the case of any
certification required to be signed by a
Responsible Officer, such an officer whose
name and specimen signature appears
on a list of corporate trust officers
furnished to the Servicer by the Trustee
and the Bond Administrator, as such list
may from time to time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation
S
commencing on the later of (a) the date
upon which the Certificates are first
offered to persons other than the Initial
Purchasers and any other distributor
(as defined in Regulation S) of the
Certificates and (b) the Closing Date.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class X-1, Class
X-2,
Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O
and Class P Certificates issued as such on
the Closing Date.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc. or its
successor in interest.
"Scheduled Final Distribution Date": As to the Class X-1
Certificates, the Distribution Date in
April 2028; as to the Class X-2
Certificates, the Distribution Date in
March 2011; as to Class A-1 Certificates,
the Distribution Date in November 2008; as
to Class A-2 Certificates, the
Distribution Date in February 2008; as to
Class A-3 Certificates, the
Distribution Date in April 2013; as to the
Class A-4, Class B and Class C
Certificates, the Distribution Date
occurring in March 2014; as to the Class D
Certificates, the Distribution Date
occurring in December 2015; as to the Class
E Certificates, the Distribution Date
occurring in December 2018; as to the
Class F, Class G, Class H, Class J, Class
K, Class L and Class M Certificates,
the Distribution Date occurring in December
2018; as to the Class N and Class O
Certificates, the Distribution Date
occurring in January 2019; and as to the
Class P Certificates, the Distribution Date
occurring in April 2028.
"Securities Legend": With respect to each Residual Certificate
or
any Individual Certificate, the legend set
forth in, and substantially in the
form of, Exhibit F hereto.
"Serviced Companion Loan": Each of the Tysons Corner Center
Pari
Passu Loans.
"Serviced Companion Loan Noteholder": A holder of a Serviced
Companion Loan.
"Serviced Companion Loan Noteholder Register": As defined in
Section
3.33(c).
"Serviced Companion Loan Securities": For so long as the
Mortgage
Loan related thereto or any successor REO
Loan thereof is part of the Mortgage
Pool, any class of securities backed by a
Serviced Companion Loan. Any reference
herein to a "series" of Serviced Companion
Loan Securities shall refer to
separate securitizations of one or more of
the Serviced Companion Loans.
"Serviced Companion Loan Securitization Agreement": With respect
to
any Serviced Companion Loan, any agreement
under which any securities evidencing
interests in such Serviced Companion Loan
are issued, as from time to time
amended, supplemented or modified.
"Serviced Companion Loan Trustee": With respect to any Serviced
Companion Loan, the trustee with respect to
such Serviced Companion Loan
appointed and acting under the related
Serviced Companion Loan Securitization
Agreement, if any.
"Serviced Whole Loan": The Tysons Corner Center Whole Loan.
"Serviced Whole Loan Collection Account": With respect to the
Serviced Whole Loan, the separate account
or subaccount created and maintained
by the Servicer pursuant to Section 3.05(f)
on behalf of the Certificateholders
and the related Serviced Companion Loan
Noteholders, which shall be entitled
"GMAC Commercial Mortgage Corporation, as
Servicer for the Certificateholders
and the Companion Loan Noteholders relating
to, and for the benefit of Wells
Fargo Bank, N.A., as Trustee, in trust for
the Holders of, Deutsche Mortgage &
Asset Receiving Corporation, COMM 2004-LNB2
Commercial Mortgage Pass-Through
Certificates, Serviced Whole Loan
Collection Account". Amounts in the Serviced
Whole Loan Collection Account applicable to
the Serviced Companion Loans shall
not be assets of the Trust Fund, but
instead shall be held by the Servicer on
behalf of the Trust Fund (in respect of
amounts reimbursable therefrom) and the
Serviced Companion Loan Noteholders. Any
such account or subaccount shall be an
Eligible Account.
"Serviced Whole Loan Remittance Amount": For each Distribution
Date
and with respect to the Serviced Whole Loan
and related Mortgaged Property (if
it becomes an REO Property), any amount
received by the Servicer (or, with
respect to an REO Property, the Special
Servicer) during the related Collection
Period net of any amount payable or
reimbursable to any Person from the Serviced
Whole Loan Collection Account pursuant to
Section 3.06(c).
"Serviced Whole Loan REO Account": As defined in Section
3.17(b).
"Servicer": GMAC Commercial Mortgage Corporation, a California
corporation, or any successor Servicer
appointed as herein provided.
"Servicer Backup Certification": As defined in Section 3.21(f).
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Prepayment Interest Shortfall": As defined in Section
3.19(c).
"Servicer Remittance Date": With respect to any Distribution
Date,
the Business Day preceding such
Distribution Date.
"Servicer's Appraisal Estimate": As defined in the definition
of
Appraisal Reduction Amount.
"Servicing Compensation": With respect to any Collection Period,
the
related Servicing Fee, Net Prepayment
Interest Excess, if any, and any other
fees, charges or other amounts payable to
the Servicer under this Agreement for
such period.
"Servicing Fee": With respect to each Mortgage Loan or Serviced
Companion Loan and for any Distribution
Date, an amount per Interest Accrual
Period equal to the product of (i)
one-twelfth of the sum of the respective
Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan
or Serviced Companion Loan as of the Due
Date in the immediately preceding
Collection Period (without giving effect to
payments of principal on such
Mortgage Loan on such Due Date). In the
case of the AFR/Bank of America
Portfolio Mortgage Loan, the Servicing Fee
shall be paid by the Lower-Tier REMIC
on the Loan REMIC Balance.
"Servicing Fee Rate": With respect to each Mortgage Loan (other
than
the Non-Serviced Mortgage Loans) or
Serviced Companion Loan, the sum of the
Master Servicing Fee Rate and the related
Primary Servicing Fee Rate, if any,
which sum shall be set forth on Exhibit B-2
to this Agreement, in each case
computed on the basis of the Stated
Principal Balance of the related Mortgage
Loan or Serviced Companion Loan and on a
loan-by-loan basis. In the case of the
AFR/Bank of America Portfolio Loan,
"Mortgage Loan" shall refer to the Loan
REMIC Regular Interest for purposes of this
definition, as the context requires.
"Servicing Officer": Any officer or employee of the Servicer or
the
Special Servicer, as applicable, involved
in, or responsible for, the
administration and servicin
