EXECUTION COPY
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
MIDLAND LOAN SERVICES, INC.,
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 April 1, 2005
---------------------------------------------------------------
COMM 2005-LP5
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;
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;
Distribution Accounts; Interest Reserve Account and
Serviced Whole Loan Collection Accounts.....................
Section 3.06 Permitted Withdrawals from the
Collection Account, the
Distribution Accounts and the Serviced Whole Loan
Collection Accounts; Trust Ledger...........................
Section 3.07 Investment of Funds in the
Collection Account, the
Serviced Whole Loan Collection Accounts, 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 Accounts......
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 Certain Rights and Obligations of
the Special Servicer.......
Section 3.30 Modification, Waiver, Amendment
and Consents.................
Section 3.31 Rights of Holders of the
FedEx-Bellingham Whole Loan.........
Section 3.32 Rights of Holders of the Wellpoint
Office Tower Whole
Loan, the Loews Miami Beach Whole Loan and the General
Motors Building Whole Loan..................................
Section 3.33 Certain Intercreditor Matters
Relating to the Whole Loans....
Section 3.34 Certain Matters Relating to the 63
Madison Avenue Whole
Loan and the Lakeside Mall Whole Loan.......................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.01A Distributions on Class GMB
Certificates......................
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 AND THE BOND ADMINISTRATOR
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-1A Certificate
Exhibit A-3 Form of
Class A-2 Certificate
Exhibit A-4 Form of
Class A-3 Certificate
Exhibit A-5 Form of
Class A-SB Certificate
Exhibit A-6 Form of
Class A-4 Certificate
Exhibit A-7 Form of
Class X-C Certificate
Exhibit A-8 Form of
Class X-P Certificate
Exhibit A-9 Form of
Class A-J Certificate
Exhibit A-10 Form of Class B
Certificate
Exhibit A-11 Form of Class C
Certificate
Exhibit A-12 Form of Class D
Certificate
Exhibit A-13 Form of Class E
Certificate
Exhibit A-14 Form of Class F
Certificate
Exhibit A-15 Form of Class G
Certificate
Exhibit A-16 Form of Class H
Certificate
Exhibit A-17 Form of Class J
Certificate
Exhibit A-18 Form of Class K
Certificate
Exhibit A-19 Form of Class L
Certificate
Exhibit A-20 Form of Class M
Certificate
Exhibit A-21 Form of Class N
Certificate
Exhibit A-22 Form of Class O
Certificate
Exhibit A-23 Form of Class P
Certificate
Exhibit A-24 Form of Class
GMB-1
Exhibit A-25 Form of Class
GMB-2
Exhibit A-26 Form of Class
GMB-3
Exhibit A-27 Form of Class
GMB-4
Exhibit A-28 Form of Class Q
Certificate
Exhibit A-29 Form of Class R
Certificate
Exhibit A-30 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
Form of Sub-Servicer Backup Certification
Exhibit N-1 Form of
Purchase Option Notice
Exhibit N-2 Form of
General Motors Building B Loan 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 Notice to the Trustee, the Bond Administrator and
S&P
from the Servicer Regarding Defeasance of a Mortgage Loan
Exhibit U
Form of Notice from the Trustee Regarding the 63 Madison Avenue
Mortgage Loan and the Lakeside Mall Mortgage Loan
Exhibit V
Information Request Form
TABLE OF SCHEDULES
Schedule I
Class A-SB Planned Principal Balance Schedule
Schedule II Rates to
be Used in Determining the Class X-C and Class X-P
Pass-Through Rates
<PAGE>
Pooling and Servicing Agreement, dated as of April 1, 2005,
among
Deutsche Mortgage & Asset Receiving
Corporation, as Depositor, Midland Loan
Services, Inc., as Servicer, Lennar
Partners, Inc., as 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.
The Lower-Tier REMIC will hold the Mortgage Loans 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-1AL-1, Class A-1AL-2, Class
A-1AL-3, Class A-1AL-4, Class A-1AL-5,
Class A-1AL-6, Class A-1AL-7, Class
A-1AL-8, Class A-1AL-9, Class A-1AL-10,
Class A-1AL-11, Class A-1AL-12, Class
A-1AL-13, Class A-1AL-14, Class A-2L-1,
Class A-2L-2, Class A-2L-3, Class
A-2L-4, Class A-2L-5, Class A-2L-6, Class
A-2L-7, Class A-3L, Class A-SBL-1,
Class A-SBL-2, Class A-4L-1, Class A-4L-2,
Class A-4L-3, Class A-4L-4, Class
A-4L-5, Class A-JL, Class B-L, Class C-L,
Class D-L-1, Class D-L-2, Class E-L-1,
Class E-L-2, Class E-L-3, Class E-L-4,
Class F-L-1, Class F-L-2, Class F-L-3,
Class G-L-1, Class G-L-2, 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 , Class
P-L, Class GMB-1-L, Class GMB-2-L, Class
GMB-3-L and Class GMB-4-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, 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 27 Classes
of regular interests in the Upper-Tier
REMIC. The Class A-1, Class A-2, Class
A-3, Class A-SB, Class A-4, Class A-1A,
Class X-C, Class X-P, Class A-J, Class
B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P,
Class GMB-1, Class GMB-2, Class GMB-3 and
Class GMB-4 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 portions of the Trust Fund consisting of the Excess Interest
and
related amounts in the Grantor Trust
Distribution Account shall be treated as a
grantor trust (the "Grantor Trust") for
federal income tax purposes. The Class Q
Certificates will represent the sole
interests in the portion of the Grantor
Trust representing the Excess Interest
under federal income tax law.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 1 on the Mortgage Loan Schedule
(the "General Motors Building Mortgage
Loan"), also secures five separate pari
passu mortgage loans to the same
Borrower (together with any replacements
therefor, the "General Motors Building
Pari Passu Loans" and together with the
General Motors Building Mortgage Loan,
the "General Motors Building Senior Loans")
and one additional mortgage loan to
the same Borrower which is subordinate to
the General Motors Building Senior
Loans and is identified as Loan No. 138 on
the Mortgage Loan Schedule (the
"General Motors Building B Loan" and
together with the General Motors Building
Pari Passu Loans and the General Motors
Building Mortgage Loan, the "General
Motors Building Whole Loan"). The General
Motors Building Whole Loan will be
serviced pursuant to this Agreement and the
General Motors Building A Notes
Intercreditor Agreement and the General
Motors Building Agreement Among
Noteholders, as and to the extent provided
herein and therein. 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 Loans identified
as
Loan No. 2 on the Mortgage Loan Schedule
(the "63 Madison Avenue Mortgage Loan")
also secures one separate pari passu
mortgage loan to the same Borrower
(together with any replacements therefor,
the "63 Madison Avenue Pari Passu
Loan"). The 63 Madison Avenue Mortgage Loan
and the 63 Madison Avenue Pari Passu
Loan are collectively referred to herein as
the "63 Madison Avenue Whole Loan"
and will be serviced pursuant to a pooling
and servicing agreement (the "GECMC
2005-C1 Pooling and Servicing Agreement"),
dated as of February 1, 2005, among
GE Commercial Mortgage Corporation, as
depositor, GEMSA Loan Services, L.P., as
initial servicer (in such capacity, such
initial servicer or any successor
thereto, the "GECMC 2005-C1 Servicer"),
Lennar Partners, Inc., as initial
special servicer (in such capacity, such
initial special servicer or any
successor thereto, the "GECMC 2005-C1
Special Servicer"), LaSalle Bank National
Association., as initial trustee (in such
capacity, such initial trustee or any
successor thereto, the "GECMC 2005-C1
Trustee") and ABN AMRO Bank N.V., as
fiscal agent.
The
Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 3 on the Mortgage Loan Schedule
(the "Lakeside Mall Mortgage Loan")
also secures one separate pari passu
mortgage loan to the same Borrower
(together with any replacements therefor,
the "Lakeside Mall Pari Passu Loan").
The Lakeside Mall Mortgage Loan and the
Lakeside Mall Pari Passu Loan are
collectively referred to herein as the
"Lakeside Mall Whole Loan" and will be
serviced pursuant to the GECMC 2005-C1
Pooling and Servicing Agreement.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 7 on the Mortgage Loan Schedule
(the "Loews Miami Beach Mortgage
Loan"), also secures two separate pari
passu mortgage loans to the same Borrower
(together with any replacements therefor,
the "Loews Miami Beach Pari Passu
Loans" and together with the Loews Miami
Beach Mortgage Loan, the "Loews Miami
Beach Whole Loan"). The Loews Miami Beach
Whole Loan will be serviced pursuant
to this Agreement and the Loews Miami Beach
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. 12 on the Mortgage Loan Schedule
(the "Wellpoint Office Tower Mortgage
Loan"), also secures two separate pari
passu mortgage loans to the same Borrower
(together with any replacements therefor,
the "Wellpoint Office Tower Pari Passu
Loans" and together with the Wellpoint
Office Tower Mortgage Loan, the
"Wellpoint Office Tower Whole Loan"). The
Wellpoint Office Tower Whole Loan will
be serviced pursuant to this Agreement and
the Wellpoint Office Tower
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. 102 on the Mortgage Loan Schedule
(the "FedEx-Bellingham Mortgage
Loan"), also secures one separate mortgage
loan to the same Borrower (the
"FedEx-Bellingham B Loan" and together with
the FedEx-Bellingham Mortgage Loan,
the "FedEx-Bellingham Whole Loan") which is
subordinate to the FedEx-Bellingham
Mortgage Loan. The FedEx-Bellingham Whole
Loan will be serviced pursuant to this
Agreement and the FedEx-Bellingham
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 following table sets forth the Class designation, the
corresponding Lower-Tier Regular Interests
(the "Corresponding Lower-Tier
Regular Interests") and the aggregate
initial Certificate Balance (or, with
respect to the Class X-C and Class X-P
Certificates, Notional Balance) for each
Class of Certificates comprising interests
in the Upper-Tier REMIC.
<PAGE>
<TABLE>
<CAPTION>
Corresponding
Corresponding
Certificate Balance
Lower-Tier Regular
Original Lower-Tier
Corresponding Components
Certificates
or Notional Balance
Interest(s)
Principal Balance (2) of Class X
Certificates
------------------------------------------------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
Class A-1.............
$60,276,000
A-1L-1
$9,031,000
A-1L-1
A-1L-2
$29,645,000
A-1L-2
A-1L-3
$21,600,000
A-1L-3
Class A-2.............
$592,379,000
A-2L-1
$15,162,000
A-2L-1
A-2L-2
$43,656,000
A-2L-2
A-2L-3
$42,642,000
A-2L-3
A-2L-4
$44,264,000
A-2L-4
A-2L-5
$41,494,000
A-2L-5
A-2L-6
$110,015,000
A-2L-6
A-2L-7
$295,146,000
A-2L-7
Class A-3.............
$71,321,000
A-3L
$71,321,000
A-3L
Class A-SB............
$86,687,000
A-SBL-1
$80,377,000
A-SBL-1
A-SBL-2
$6,310,000
A-SBL-2
Class A-4.............
$305,071,000
A-4L-1
$16,900,000
A-4L-1
A-4L-2
$21,082,000
A-4L-2
A-4L-3
$18,981,000
A-4L-3
A-4L-4
$35,542,000
A-4L-4
A-4L-5
$212,566,000
A-4L-5
Class A-1A............
$245,882,000
A-1AL-1
$886,000
A-1AL-1
A-1AL-2
$4,521,000
A-1AL-2
A-1AL-3
$5,286,000
A-1AL-3
A-1AL-4
$5,568,000
A-1AL-4
A-1AL-5
$7,817,000
A-1AL-5
A-1AL-6
$11,488,000
A-1AL-6
A-1AL-7
$10,214,000
A-1AL-7
A-1AL-8
$8,928,000
A-1AL-8
A-1AL-9
$19,175,000
A-1AL-9
A-1AL-10
$7,600,000
A-1AL-10
A-1AL-11
$6,786,000
A-1AL-11
A-1AL-12
$6,015,000
A-1AL-12
A-1AL-13
$54,458,000
A-1AL-13
A-1AL-14
$97,140,000
A-1AL-14
Class X-C.............
$1,702,020,822(1)
$1,702,020,822
Class X-P.............
$1,658,063,000(1)
$1,658,063,000
Class A-J.............
$117,014,000
A-JL
$117,014,000
A-JL
Class B...............
$46,806,000
B-L
$46,806,000
B-L
Class C...............
$14,892,000
C-L
$14,892,000
C-L
Class D...............
$27,658,000
D-L-1
$631,000
D-L-1
D-L-2
$27,027,000
D-L-2
Class E...............
$21,275,000
E-L-1
$441,000
E-L-1
E-L-2
$7,620,000
E-L-2
E-L-3
$7,114,000
E-L-3
E-L-4
$6,100,000
E-L-4
Class F...............
$23,403,000
F-L-1
$4,901,000
F-L-1
F-L-2
$10,744,000
F-L-2
F-L-3
$7,758,000
F-L-3
Class G...............
$14,893,000
G-L-1
$7,680,000
G-L-1
G-L-2
$7,213,000
G-L-2
Class H...............
$17,020,000
H-L-1
$11,946,000
H-L-1
H-L-2
$5,074,000
H-L-2
Class J...............
$12,765,000
J-L-1
$11,374,000
J-L-1
J-L-2
$1,391,000
J-L-2
Class K...............
$6,383,000
K-L-1
$3,856,000
K-L-1
K-L-2
$2,527,000
K-L-2
Class L...............
$4,255,000
L-L
$4,255,000
L-L
Class M...............
$4,255,000
M-L
$4,255,000
M-L
Class N...............
$6,383,000
N-L
$6,383,000
N-L
Class O...............
$4,255,000
O-L
$4,255,000
O-L
Class P...............
$19,147,822
P-L
$19,147,822
P-L
Class GMB-1...........
$27,500,000
GMB-1-L
$27,500,000
N/A
Class GMB-2...........
$28,000,000
GMB-2-L
$28,000,000
N/A
Class GMB-3...........
$16,200,000
GMB-3-L
$16,200,000
N/A
Class GMB-4...........
$14,300,000
GMB-4-L
$14,300,000
N/A
Class Q...............
N/A
N/A
N/A
N/A
Class R...............
N/A
N/A
N/A
N/A
Class LR..............
N/A
N/A
N/A
N/A
</TABLE>
--------------------
(1) The initial Notional Balance
of the Class X-C 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-P Certificates is equal
to the
aggregate of the Notional Amount of the Class X-P Components as
of
the
Closing Date.
(2) The Lower-Tier Regular
Interests and the Corresponding 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.
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.
As of the Cut-off Date, the Mortgage Loans (excluding the
General
Motors Building B Loan) have an aggregate
Stated Principal Balance equal to
approximately $1,702,020,822. As of the
Cut-off Date, the General Motors
Building B Loan had a Stated Principal
Balance of $86,000,000.
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:
<PAGE>
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.
"63 Madison Avenue A-1 Note": With respect to the 63 Madison
Avenue
Whole Loan, the related promissory note in
the original principal amount of
$60,000,000 which is pari passu in right of
payment to the 63 Madison Avenue
Mortgage Loan, as from time to time
amended, supplemented or modified, and any
replacements therefor.
"63 Madison Avenue Intercreditor Agreement": With respect to the
63
Madison Avenue Mortgage Loan and the 63
Madison Avenue Pari Passu Loan, that
certain intercreditor agreement, dated as
of February 17, 2005, by and among the
initial holder of the 63 Madison Avenue
Mortgage Loan and the initial holder of
the 63 Madison Avenue Pari Passu Loan, as
from time to time amended,
supplemented or modified.
"63 Madison Avenue Mortgage Loan": As defined in the
preliminary
statement herein.
"63 Madison Avenue Nonrecoverable Advance": Any "Nonrecoverable
Servicing Advance" (as defined in the GECMC
2005-C1 Pooling and Servicing
Agreement) made with respect to the 63
Madison Avenue Mortgage Loan pursuant to
and in accordance with the GECMC 2005-C1
Pooling and Servicing Agreement.
"63 Madison Avenue Pari Passu Loan Noteholder": The holder of
the
Note for the 63 Madison Avenue Pari Passu
Loan.
"63 Madison Avenue Pari Passu Loan": As defined in the
preliminary
statement herein.
"63 Madison Avenue Service Providers": With respect to each 63
Madison Avenue Pari Passu Loan that has
been deposited into a securitization
trust, the related trustee, master
servicer, special servicer, sub-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.
"63 Madison Avenue Whole Loan": As defined in the preliminary
statement herein.
"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,
the Special 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, from time to time). 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. Notwithstanding anything to
the contrary in the Fed-Ex Bellingham
Intercreditor Agreement, the Servicer,
Special Servicer and Trustee shall only
be entitled to interest on Advances at the
Advance Rate hereunder.
"Advance Recovery Report": A report substantially in the form
of,
and containing the information called for
in, the downloadable form of the
"Advance Recoverability Report" available
as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be approved by
the CMSA for commercial mortgage securities
transactions generally.
"Adverse REMIC Event": Any action, that, under the REMIC
Provisions,
if taken or not taken, as the case may be,
could (i) endanger the status of the
Lower-Tier REMIC or the Upper-Tier REMIC as
a REMIC or (ii) result in the
imposition of a tax upon the Lower-Tier
REMIC or the Upper-Tier REMIC or the
Trust Fund (including but not limited to
the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code
and the tax on contributions to a
REMIC set forth in Section 860G(d) of the
Code, but not including the tax on
"net income from foreclosure
property").
"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 Officer's 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.
"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 Repayment Date": With respect to any Mortgage Loan
that
is indicated on the Mortgage Loan Schedule
as having a Revised Rate, the date
upon which such Mortgage Loan commences
accruing interest at such Revised Rate.
"Anticipated Termination Date": Any Distribution Date on which it
is
anticipated that the Trust Fund will be
terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(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.
"Appraisal Reduction Amount": For any Distribution Date and for
any
Mortgage Loan (other than the Non-Serviced
Mortgage Loans) or any Serviced Whole
Loan, an amount calculated by the Special
Servicer by the first Determination
Date following the date the Special
Servicer receives the required Appraisal or
performs the required Small Loan Appraisal
Estimate equal to the excess, if any,
of (a) the Stated Principal Balance of such
Mortgage Loan or the applicable
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 securing such Mortgage
Loan or the applicable Serviced
Whole Loan as determined by Updated
Appraisals obtained by the Special Servicer
(the costs of which shall be paid by the
Servicer as a Property Advance) minus
any downward adjustments the Special
Servicer deems appropriate (without
implying any duty to do so) based upon its
review of the Appraisal and any other
information it may deem appropriate (or, in
the case of Mortgage Loans or
Serviced Whole Loans 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 the applicable Serviced
Whole Loan at a per annum rate equal to
the Mortgage Rate (or with respect to the
applicable Serviced Whole Loan, the
weighted average of the Mortgage Rate for
the related Mortgage Loan(s) and
Serviced Companion Loans), (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 applicable
Serviced Whole Loan, (C) any other unpaid
Additional Trust Fund Expenses in
respect of such Mortgage Loan or the
applicable Serviced Whole Loan (but subject
to the provisions of Section 1.02(e)) 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 applicable
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 the applicable 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.
Notwithstanding the foregoing, within
60 days after the Appraisal Reduction Event
(or in the case of an Appraisal
Reduction Event occurring by reason of
clause (ii) of the definition thereof, 30
days) (A) with respect to Mortgage Loans
(other than the Non-Serviced Mortgage
Loans) or an applicable 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 an applicable 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 applicable Serviced Whole
Loan; or (ii) with the consent of
the Controlling Class Representative,
obtain an Updated Appraisal. On the first
Distribution Date occurring on or after the
delivery of such Updated Appraisal,
the Special 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
Class Representative 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 Class Representative, the
Special Servicer shall, subject to the
Servicing Standard, recalculate the
Appraisal Reduction Amount in respect of
such Mortgage Loan or the applicable
Serviced Whole Loan based on such Appraisal
(but subject to any downward adjustment by
the Special Servicer as provided in
the definition of Appraisal Reduction
Amount) and shall notify the Trustee, the
Servicer, the Controlling Class
Representative and the Directing
Certificateholder 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 a 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.
Each 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 63 Madison Avenue
Mortgage Loan and the Lakeside Mall
Mortgage Loan shall be calculated by the
GECMC 2005-C1 Special Servicer in
accordance with and pursuant to the terms
of the GECMC 2005-C1 Pooling and
Servicing Agreement.
Any Appraisal Reduction Amount on the General Motors Building
Whole
Loan shall be deemed allocated, first, to
the General Motors Building B Loan
and, then, to the General Motors Building
Senior Loans, pro rata, based on each
such loan's Stated Principal Balance. Any
Appraisal Reduction Amount on the
Wellpoint Office Tower Whole Loan shall be
deemed allocated, pro rata, to the
Wellpoint Office Mortgage Loan and the
Wellpoint Office Pari Passu Loans based
on each such loan's Stated Principal
Balance. Any Appraisal Reduction Amount on
the Loews Miami Beach Whole Loan shall be
deemed allocated, pro rata, to the
Loews Miami Beach Mortgage Loan and the
Loews Miami Beach Pari Passu Loans based
on each such loan's Stated Principal
Balance. Any Appraisal Reduction Amount on
the FedEx-Bellingham Whole Loan shall be
deemed allocated, first to the
FedEx-Bellingham B Loan (up to the full
principal balance thereof) and second,
to the FedEx-Bellingham Mortgage Loan.
"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 such 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 such Mortgage Loan or Serviced
Whole Loan becomes an REO Property, (v)
the 60th day after the third anniversary of
any extension of a Mortgage Loan or
a Serviced Whole Loan and (vi) with respect
to a Balloon Loan, a payment default
shall have occurred with respect to the
related Balloon Payment; provided,
however, if (a) the related Borrower is
diligently seeking a refinancing
commitment (and delivers a statement to
that effect to the Servicer, who shall
promptly deliver a copy to the Special
Servicer and the Controlling Class
Representative within 30 days after the
default), (b) the related Borrower
continues to make its Assumed Scheduled
Payment, (c) no other Servicing Transfer
Event has occurred with respect to that
Mortgage Loan or Serviced Whole Loan and
(d) the Controlling Class Representative
consents, an Appraisal Reduction Event
will not occur until 60 days beyond the
related maturity date; and provided,
further, if the related Borrower has
delivered to the Servicer, who shall
promptly deliver a copy to the Special
Servicer and the Controlling Class
Representative, on or before the 60th day
after the related Maturity Date, a
refinancing commitment reasonably
acceptable to the Special Servicer and the
Controlling Class Representative, and the
Borrower continues to make its Assumed
Scheduled Payments (and no other Servicing
Transfer Event has occurred with
respect to that Mortgage Loan or Serviced
Whole Loan), an Appraisal Reduction
Event will not occur until the earlier of
(1) 120 days beyond the related
Maturity Date and (2) the termination of
the refinancing commitment. The Special
Servicer shall notify the Servicer promptly
upon the occurrence of any of the
foregoing events with respect to any
Specially Serviced Loan.
"ARD Loan": Any Mortgage Loan the terms of which provide that
if,
after an Anticipated Repayment Date, the
borrower has not prepaid such Mortgage
Loan in full, any principal outstanding on
that date will accrue interest at the
Revised Rate rather than the Initial
Rate.
"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
a 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 in the Mortgage Pool, 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 the Mortgage Loans
in the Mortgage Pool as of such
Distribution Date, (iii) all other amounts
received by the Servicer in such Collection
Period (including the portion of
Loss of Value Payments deposited into the
Collection Account pursuant to Section
3.06(f)) and required to be placed in the
Collection Account by the Servicer
pursuant to Section 3.05 allocable to the
Mortgage Pool, (iv) without
duplication, any late Monthly Payments on
or in respect of the Mortgage Loans in
the Mortgage Pool 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 in
respect of the Mortgage Pool 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(f) and
(vii) with respect to the first
Distribution Date, the Interest Deposit Amount,
but excluding the following:
(a) amounts with respect to the Mortgage Pool permitted to be
used
to reimburse the Servicer, the Special
Servicer or the Trustee, as applicable,
for previously unreimbursed Advances and
Workout-Delayed Reimbursement Amounts
and interest thereon as described in
Section 3.06;
(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,
in each case with respect to the
Mortgage Pool;
(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 on the Mortgage Loans in
the Mortgage Pool, 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 on
Mortgage
Loans in the Mortgage Pool 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 in the Mortgage
Pool which represents any unpaid Servicing
Fee, Trustee Fee (including the Bond
Administrator Fee) and Special Servicing
Compensation, to which the Servicer,
any sub-servicer, Trustee, the Bond
Administrator and/or the Special Servicer
are entitled;
(f) all amounts with respect to the Mortgage Pool 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 or any interest on
Permitted Investments in which such funds
may be invested;
(h) all amounts received with respect to each Mortgage Loan in
the
Mortgage Pool previously purchased,
repurchased or replaced 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,
repurchased or replaced;
(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 or the Lower-Tier REMIC
allocable to the Mortgage Pool under
the circumstances and to the extent
described in Section 4.05;
(j) Excess Interest;
(k) Prepayment Premiums and Yield Maintenance Charges with
respect
to the Mortgage Loans in the Mortgage Pool;
and
(l) 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(f).
"B Loan": The General Motors Building B Loan and/or the
FedEx-Bellingham B Loan, as applicable and
as the context may require.
"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 Balloon Loan, the
scheduled
payment of principal due on the Maturity
Date (less principal included in the
applicable amortization schedule or
scheduled Monthly Payment).
"Base Interest Fraction": With respect to any Principal
Prepayment
on any Mortgage Loan and any of the Class
A-1, Class A-2, Class A-3, Class A-SB,
Class A-4, Class A-1A, Class A-J, Class B,
Class C, Class D, Class E, Class F,
Class G and Class H Certificates, a
fraction (not greater than 1) (a) whose
numerator is the greater of zero and the
amount, if any, by which (i) the
Pass-Through Rate on such Class of
Certificates exceeds (ii) the yield rate (as
provided by the Servicer) used in
calculating the Prepayment Premium or Yield
Maintenance Charge, as applicable, with
respect to such Principal Prepayment and
(b) whose denominator is the amount, if
any, by which the (i) Mortgage Rate on
such Mortgage Loan exceeds (ii) the yield
rate (as provided by the Servicer)
used in calculating the Prepayment Premium
or Yield Maintenance Charge, as
applicable, with respect to such Principal
Prepayment; provided, however, that
if such yield rate is greater than or equal
to the lesser of (x) the Mortgage
Rate on such Mortgage Loan and (y) the
Pass-Through Rate described in clause
(a)(i) above, then the Base Interest
Fraction shall be zero.
"Beneficial Owner": With respect to a Global Certificate, the
Person
who is the beneficial owner of such
Certificate as reflected on the books of the
Depository or on the books of a Person
maintaining an account with such
Depository (directly as a Depository
Participant or indirectly through a
Depository Participant, in accordance with
the rules of such Depository) 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 0.00081% per annum
payable to the Bond Administrator pursuant
to the terms hereof.
"Borrower": With respect to any Mortgage Loan, Companion 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,
Pittsburgh, Pennsylvania, 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 or
Pittsburgh, Pennsylvania are authorized or
obligated by law or executive order
to be closed.
"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
related Mortgage Loan Seller. 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 applicable Serviced Whole Loan
Collection Account, as applicable. To the
extent not inconsistent with the terms of
the related Loan Documents, 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-SB,
Class A-4, Class A-1A, Class X-C, Class
X-P, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class GMB-1, Class
GMB-2, Class GMB-3, Class GMB-4, Class
Q, 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-C, Class X-P, Class
Q, Class R and Class LR
Certificates) (a) on or prior to the first
Distribution Date, an amount equal to
the aggregate initial Certificate 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 less
any distributions allocable to principal
and any allocations of Realized Losses
or Class GMB Collateral Support Deficits
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 Controlling Class
Representative (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 (subject to a confidentiality
agreement attached hereto as Exhibit V)
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
4.2350%.
"Class A-1A 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-1A Pass-Through Rate": A per annum rate equal to the
lesser
of 4.8970% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-1AL-1 Component": One of the 57 Components of the Class
X-C
Certificates having a Notional Amount equal
to the Lower-Tier Balance of the
Class A-1AL-1 Interest.
"Class A-1AL-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-2 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-2 Interest.
"Class A-1AL-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-3 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-3 Interest.
"Class A-1AL-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-4 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-4 Interest.
"Class A-1AL-4 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-5 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-5 Interest.
"Class A-1AL-5 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-6 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-6 Interest.
"Class A-1AL-6 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-7 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-7 Interest.
"Class A-1AL-7 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-8 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-8 Interest.
"Class A-1AL-8 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-9 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1AL-9 Interest.
"Class A-1AL-9 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-1AL-10 Component": One of the 57 Components of the
Class
X-C Certificates and one of the 51
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-10
Interest.
"Class A-1AL-10 Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions
payable thereto pursuant to Section
4.01.
"Class A-1AL-11 Component": One of the 57 Components of the
Class
X-C Certificates and one of the 51
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-11
Interest.
"Class A-1AL-11 Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions
payable thereto pursuant to Section
4.01.
"Class A-1AL-12 Component": One of the 57 Components of the
Class
X-C Certificates and one of the 51
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-12
Interest.
"Class A-1AL-12 Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions
payable thereto pursuant to Section
4.01.
"Class A-1AL-13 Component": One of the 57 Components of the
Class
X-C Certificates and one of the 51
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-13
Interest.
"Class A-1AL-13 Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions
payable thereto pursuant to Section
4.01.
"Class A-1AL-14 Component": One of the 57 Components of the
Class
X-C Certificates and one of the 51
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-14
Interest.
"Class A-1AL-14 Interest": A regular interest in the Lower-Tier
REMIC entitled to monthly distributions
payable thereto pursuant to Section
4.01.
"Class A-1L-1 Component": One of the 57 Components of the Class
X-C
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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of
the
Class X-C Certificates and one of the 51
Components of the Class X-P
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-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-3 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to
4.6300%.
"Class A-2L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-2L-6 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-6 Interest.
"Class A-2L-6 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2L-7 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-2L-7 Interest.
"Class A-2L-7 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-4 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to
4.8200%.
"Class A-3L Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-3L Interest.
"Class A-3L 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-6 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
lesser
of the Weighted Average Net Mortgage
Pass-Through Rate and 4.9820%.
"Class A-4L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class X-C
Certificates and one of the 51 Components
of the Class X-P 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 A-4L-4 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L-4 Interest.
"Class A-4L-4 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-4L-5 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L-5 Interest.
"Class A-4L-5 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-SB 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 A-SB Pass-Through Rate": A per annum rate equal to
4.8670%.
"Class A-SBL-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-SBL-1 Interest.
"Class A-SBL-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-SBL-2 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-SBL-2 Interest.
"Class A-SBL-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-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-9 hereto.
"Class A-J Pass-Through Rate": A per annum rate equal to the
lesser
of 5.0460% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-JL Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-JL Interest.
"Class A-JL 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-10 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the lesser
of
5.1050% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class B-L Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-11 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate
minus 0.2440%.
"Class C-L Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-12 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate
minus 0.2040%.
"Class D-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class D-L-1 Interest.
"Class D-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class D-L-2
Component": One of the 57 Components of the Class X-C
Certificates and one of the 51 Components
of the Class X-P 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 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-13 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate
minus 0.1060%.
"Class E-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class E-L-1 Interest.
"Class E-L-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class E-L-2 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 E-L-4 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class E-L-4 Interest.
"Class E-L-4 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-14 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate.
"Class F-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class F-L-2 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class F-L-3 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class F-L-3 Interest.
"Class F-L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to 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-15 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate.
"Class G-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 GMB Available Funds": For any 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 General
Motors Building B Loan, 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 the General Motors
Building B Loan as of such Distribution
Date, (iii) all other amounts received
by the Servicer in such Collection Period
and required to be placed in the
related Serviced Whole Loan Collection
Account by the Servicer pursuant to
Section 3.05 allocable to the General
Motors Building B Loan (and the portion of
Loss of Value Payments with respect to the
General Motors Building B Loan
deposited into the Collection Account
pursuant to Section 3.06(f)), (iv) without
duplication, any late Monthly Payments on
or in respect of the General Motors
Building B Loan 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,
and (v) any Servicer Prepayment
Interest Shortfalls remitted by the
Servicer pursuant to Section 3.19(c) that
are related to the General Motors Building
B Loan, but excluding the following:
(a) 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,
in each case with respect to the
General Motors Building B Loan, and with
respect to other portions of the
General Motors Building Whole Loan, to the
extent permitted to be withdrawn from
funds allocable to the General Motors
Building B Loan pursuant to Section 3.06
hereof;
(b) 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 on the General Motors
Building B Loan, which the Servicer or
the Special Servicer is entitled to retain
as Servicing Compensation or Special
Servicing Compensation, respectively;
(c) all amounts representing scheduled Monthly Payments on the
General Motors Building B Loan due after
the related Due Date;
(d) that portion of Net Liquidation Proceeds, Net Insurance
Proceeds
and Net Condemnation Proceeds with respect
to the General Motors Building B Loan
which represents any unpaid Servicing Fee,
Trustee Fee (including the Bond
Administrator Fee) and Special Servicing
Compensation with respect to the
General Motors Building B Loan , and with
respect to other portions of the
General Motors Building Whole Loan, to
which the Servicer, any sub-servicer,
Trustee, the Bond Administrator and/or the
Special Servicer are entitled, to the
extent such funds with respect to the
Mortgage Loan are permitted to be applied
to pay such amount pursuant to Section 3.06
hereof;
(e) all amounts representing certain expenses reimbursable or
payable to the Servicer, the Special
Servicer, the Bond Administrator or the
Trustee with respect to the General Motors
Building B Loan, or with respect to
other portions of the General Motors
Building Whole Loan, to the extent
permitted to be withdrawn from funds
allocable to the General Motors Building B
Loan pursuant to Section 3.06 hereof, and
other amounts permitted to be retained
by the Servicer or withdrawn by the
Servicer from amounts in the related
Serviced Whole Loan Collection Account
allocable to the General Motors Building
B Loan (including any indemnities provided
for herein), including interest
thereon as expressly provided in this
Agreement;
(f) any interest or investment income on funds on deposit in
the
related Serviced Whole Loan Collection
Account or any interest on Permitted
Investments in which such funds may be
invested;
(g) all amounts received with respect to the General Motors
Building
B Loan if it was previously purchased,
repurchased or replaced 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 the General Motors Building B Loan
was purchased, repurchased or replaced;
(h) 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 or the Lower-Tier REMIC
allocable to the General Motors
Building B Loan under the circumstances and
to the extent described in Section
4.05;
(i) Prepayment Premiums and Yield Maintenance Charges with
respect
to the General Motors Building B Loan;
and
(j) amounts allocated under the General Motors Building
Agreement
Among Noteholders to the reimbursement of
cure payments made pursuant to the
General Motors Building Agreement Among
Noteholders.
"Class GMB Certificate": Any Class GMB-1, Class GMB-2, Class
GMB-3
or Class GMB-4 Certificate.
"Class GMB Collateral Support Deficit": As defined in Section
4.01A(f).
"Class GMB Controlling Class": As of any date of determination,
the
most subordinate Class of Class GMB
Certificates then outstanding that has a
then aggregate Certificate Balance at least
equal to 25% of the initial
Certificate Balance of such Class of
Certificates. As of the Closing Date, the
Class GMB Controlling Class is the Class
GMB-4 Certificates. For purposes of
determining the Class GMB Controlling
Class, all Appraisal Reduction Amounts
allocated to the General Motors Building B
Loan (as provided in the definition
of "Appraisal Reduction Amount") will be
applied to reduce the Certificate
Balance first of the Class GMB-4
Certificates, next of the Class GMB-3
Certificates, next of the Class GMB-2
Certificates, and then of the Class GMB-1
Certificates, in each case until reduced to
zero.
"Class GMB Controlling Class Certificateholders": Each Holder
(or
Beneficial Owner, as applicable) of a
Certificate of the Class GMB Controlling
Class as certified to the Certificate
Registrar from time to time by such Holder
or Beneficial Owner.
"Class GMB Directing Certificateholder": The Class GMB
Controlling
Class Certificateholder or its designee
selected by more than 50% of the Class
GMB Controlling Class Certificateholders,
by Certificate Balance, as certified
by the Certificate Registrar from time to
time; provided, however, that (i)
absent such selection, (ii) until a Class
GMB Directing Certificateholder is so
selected or (iii) upon receipt by the
Trustee of a notice from a majority of the
Class GMB Controlling Class
Certificateholders, by Certificate Balance, that a
Class GMB Directing Certificateholder is no
longer designated, the Class GMB
Controlling Class Certificateholder that
owns the largest aggregate Certificate
Balance of the Class GMB Controlling Class
will be the Class GMB Directing
Certificateholder; provided, however, that
the Class GMB Directing
Certificateholder may not be the related
Borrower or an affiliate of the related
Borrower.
"Class GMB Excess Prepayment Interest Shortfall": As defined in
Section 4.01A(a)(g).
"Class GMB Lower-Tier Distribution Amount": As defined in
Section
4.01A(a)(i).
"Class GMB Lower-Tier Regular Interests": Any of the Class
GMB-1L
Interest, Class GMB-2L Interest, Class
GMB-3L Interest and Class GMB-4L
Interest.
"Class GMB Principal Distribution Amount": For any Distribution
Date, an amount equal to the sum of:
(a) the Stated Principal Balance of the General Motors Building
B
Loan if it 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;
(b) the portion of Unscheduled Payments allocable to principal
of
the General Motors Building B Loan if it
was liquidated during the related
Collection Period;
(c)
the principal component of all Balloon Payments and any other
principal payment on the General Motors
Building B Loan received on or after the
Maturity Date thereof, to the extent
received during the related Collection
Period;
(d) all other Principal Prepayments on the General Motors Building
B
Loan received in the related Collection
Period; and
(e) any other full or partial recoveries in respect of principal
of
the General Motors Building B Loan,
including Insurance Proceeds, Liquidation
Proceeds and Net REO Proceeds received in
the related Collection Period
(including any amount related to the Loss
of Value Payments with respect to the
General Motors Building B Loan to the
extent that such amount was transferred
into the Serviced Whole Loan Collection
Account pursuant to Section 3.06(f)
during the related Collection Period),
provided, however, that the General
Motors Building Principal Distribution
Amount shall not include amounts
allocated under the General Motors Building
Agreement Among Noteholders to the
reimbursement of cure payments made
pursuant to the General Motors Building
Agreement Among Noteholders.
The principal component of the amounts set forth above shall be
determined in accordance with Section 1.02
hereof.
"Class GMB Private Placement Memorandum": The Private Placement
Memorandum, dated April 18, 2005, pursuant
to which the Class GMB Certificates
will be offered for sale.
"Class GMB Privileged Person": Any of the following: a party to
this
Agreement, a Rating Agency, a designee of
the Depositor (including the Financial
Market Publisher and any other financial
market publisher designated by the
Depositor), the Class GMB Directing
Certificateholder and any other Person who
delivers to the Bond Administrator a
certification that such person is a
Certificateholder of a Class GMB
Certificate, a Beneficial Owner of a Class GMB
Certificate (in which case such
certification shall be accompanied by any
evidence requested by the Bond
Administrator as provided in the definition of
"Beneficial Owner"), a prospective
purchaser of a Class GMB Certificate.
"Class GMB-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-24 hereto.
"Class GMB-1 Pass-Through Rate": A per annum rate equal to
5.150%
per annum.
"Class GMB-1L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class GMB-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-25 hereto.
"Class GMB-2 Pass-Through Rate": A per annum rate equal to
5.248%
per annum.
"Class GMB-2L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class GMB-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-26 hereto.
"Class GMB-3 Pass-Through Rate": A per annum rate equal to
5.493%
per annum.
"Class GMB-3L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class GMB-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-27 hereto.
"Class GMB-4 Pass-Through Rate": A per annum rate equal to
5.738%
per annum.
"Class GMB-4L 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-16 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate.
"Class H-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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) (or in the case of the Class
GMB Certificates, pursuant to Section
4.01A(b) or 4.01A(c)) 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-17 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class J-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-18 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class K-L-1 Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-19 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class L-L Component": One of the 57 Components of the Class
X-C
Certificates and one of the 51 Components
of the Class X-P 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-30 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-20 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class M-L Component": One of the 57 Components of the Class
X-C
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-21 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class N-L Component":
One of the 57 Components of the Class X-C
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-22 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class O-L Component": One of the 57 Components of the Class
X-C
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-23 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser
of
4.7310% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class P-L Component": One of the 57 Components of the Class
X-C
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 Q Certificate": A Certificate designated as "Class Q" on
the
face thereof, in the form of Exhibit A-28
hereto.
"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-28 hereto. The
Class R Certificates have no Pass-Through
Rate, Certificate Balance or Notional
Balance.
"Class X Certificate": Any Class X-C or Class X-P Certificate.
"Class X-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-7 hereto.
"Class X-C 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-C
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-C Notional Amount
for such Distribution Date.
"Class X-C Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Principal
Balance of the Lower-Tier Regular
Interests (other than the Class GMB
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-C Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-C
Strip Rates for the respective
Components of the Class X-C Notional Amount
for such Distribution Date, weighted
on the basis of the respective Notional
Amounts of such Components outstanding
immediately prior to such Distribution
Date.
"Class X-C Strip Rate": With respect to any Class of Components
(other than Components that are also Class
X-P 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 the Corresponding
Certificate. With respect to each Class of
Components that are also Class X-P
Components (A) for any Distribution Date
occurring on or before the related
Class X-P Component Crossover Date, the
excess, if any, of the Weighted Average
Net Mortgage Pass-Through Rate for such
Distribution Date over (1) with respect
to each of the Class C-L Component, the
Class D-L-1 Component, the Class D-L-2
Component, the Class E-L-1 Component, the
Class E-L-2 Component, the Class E-L-3
Component and the Class E-L-4 Component,
the sum of the (I) the Class X-P Fixed
Strip Rate and (II) the Pass-Through Rate
for the Class C Certificates (with
respect to the Corresponding Components of
the Class C Certificates), Class D
Certificates (with respect to the
Corresponding Components of the Class D
Certificates) and F Certificates (with
respect to the Corresponding Components
of the Class F Certificates) for such
Distribution Date and (2) for each other
Class X-P Component, the greater of (x) the
Pass-Through Rate for the
Corresponding Certificates and (y) the rate
per annum corresponding to such
Distribution Date as set forth in Schedule
I attached hereto, and (B) for any
Distribution Date occurring after the
related Class X-P 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 the
Corresponding Certificates. In no event
will any Class X-C Strip Rate be less
than zero.
"Class X-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-8 hereto.
"Class X-P Component": Each of the Class A-1L-2 Component, the
Class
A-1L-3 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-2L-6 Component, the Class
A-2L-7 Component, the Class A-3L
Component, the Class A-SBL-1 Component, the
Class A-SBL-2 Component, the Class
A-4L-1 Component, the Class A-4L-2
Component, the Class A-4L-3 Component, the
Class A-4L-4 Component, the Class A-4L-5
Component, the Class A-1AL-2 Component,
the Class A-1AL-3 Component, the Class
A-1AL-4 Component, the Class A-1AL-5
Component, the Class A-1AL-6 Component, the
Class A-1AL-7 Component, the Class
A-1AL-8 Component, the Class A-1AL-9
Component, the Class A-1AL-10 Component,
the Class A-1AL-11 Component, the Class
A-1AL-12 Component, the Class A-1AL-13
Component, the Class A-1AL-14 Component,
the Class A-JL 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 E-L-1 Component, the
Class E-L-2 Component, the Class E-L-3
Component, the Class E-L-4 Component, the
Class F-L-1 Component, the Class F-L-2
Component, the Class F-L-3 Component, the
Class G-L-1 Component, the Class G-L-2
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-P 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:
<TABLE>
<CAPTION>
Component
Cross-Over Date
--------------------------------------------------------------------------------------------
---------------
<S>
<C>
Class A-1L-2 Component and Class A-1AL-2
Component .........................................
April 2006
Class A-1L-3 Component, Class A-2L-1
Component and Class A-1AL-3 Component..................
October 2006
Class A-2L-2 Component, Class A-1AL-4
Component, Class K-L-1 Component
and Class L-L
Component..................................................................
April 2007
Class A-2L-3 Component, Class A-1AL-5
Component, Class J-L-1 Component
and Class K-L-2
Component................................................................
October 2007
Class A-2L-4 Component, Class A-1AL-6
Component, Class H-L-1 Component
and Class J-L-2
Component................................................................
April 2008
Class A-2L-5 Component, Class A-1AL-7
Component, Class G-L-1 Component
and Class H-L-2
Component................................................................
October 2008
Class A-2L-6 Component, Class A-1AL-8
Component, Class F-L-1 Component
and Class G-L-2
Component................................................................
April 2009
Class A-2L-7 Component, Class A-1AL-9
Component, Class A-3L Component,
Class A-SBL-1 Component and
Class F-L-2 Component........................................
October 2009
Class A-1AL-10 Component, Class A-SBL-2
Component, Class A-4L-1 Component,
Class E-L-1 Component and
Class F-L-3 Component..........................................
April 2010
Class A-1AL-11 Component, Class A-4L-2
Component and Class E-L-2 Component..................
October 2010
Class A-1AL-12 Component, Class A-4L-3
Component and Class E-L-3 Component..................
April 2011
Class A-1AL-13 Component, Class A-4L-4
Component, Class D-L-1 Component
and Class E-L-4
Component................................................................
October 2011
Class A-1AL-14 Component, Class A-4L-5
Component, Class A-JL
Component,
Class B-L Component, Class
C-L Component and Class D-L-2 Component.......................
April 2012
</TABLE>
"Class X-P Fixed Strip Rate": A per annum rate equal to (i)
0.2140%,
with respect to the Corresponding
Components relating to the Class C
Certificates, (ii) 0.1740%, with respect to
the Corresponding Components
relating to the Class D Certificates, and
(iii) 0.0760%, with respect to the
Corresponding Components relating to the
Class E Certificates.
"Class X-P Notional Amount": With respect to any Distribution
Date,
the aggregate of the Notional Amounts of
the Class X-P Components as of the
close of business on the preceding
Distribution Date, excluding those Class X-P
Components for which the Class X-P
Component Crossover Date has previously
passed.
"Class X-P Pass-Through Rate": With respect to any Distribution
Date
subsequent to the initial Distribution Date
and on or before the Distribution
Date in April 2012, the weighted average of
the Class X-P Strip Rates for the
respective Components of the Class X-P
Notional Amount, weighted on the basis of
the respective balances of such Components
outstanding immediately prior to such
Distribution Date.
"Class X-P Strip Rate": With respect to each of the Class X-P
Components (A) for any Distribution Date
occurring on or before the related
Class X-P Component Crossover Date, (1)
with respect to each of the Class C-L
Component, the Class D-L-1 Component, the
Class D-L-2 Component, the Class E-L-1
Component, the Class E-L-2 Component, the
Class E-L-3 Component and the Class
E-L-4 Component, the applicable Class X-P
Fixed Rate and (2) with respect to
each other Class X-P Component, the excess,
if any, of (x) the lesser of (i) the
rate per annum corresponding to such
Distribution Date as set forth in Schedule
I attached hereto and (ii) the Weighted
Average Net Mortgage Pass-Through Rate
for such Distribution Date over (y) the
Pass-Through Rate for the Corresponding
Certificates, and (B) for any Distribution
Date occurring after the related
Class X-P Component Crossover Date, equal
to zero. In no event will any Class
X-P Strip Rate be less than zero.
"Clearstream": Clearstream Banking Luxembourg, a division of
Clearstream International, societe
anonyme.
"Closing Date": April 29, 2005.
"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
Controlling Class Representative.
"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. The initial data for this
report shall be provided by each
Mortgage Loan Seller.
"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 Advance
Recovery Report, 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 twelve 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, (x) Reconciliation of Funds Report,
(xi) Advance Recovery Report and
(xii) Total Loan 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
Advance
Recovery Report, if such report is required
for a particular month.
"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, the Operating
Statement Analysis Report, the Loan Level
Reserve/LOC Report, the Reconciliation
of Funds Report, the Advance Recovery
Report and the Total Loan 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.
"Code": The Internal Revenue Code of 1986, as amended from time
to
time, any successor statute thereto, and
any temporary or final regulations of
the United States Department of the
Treasury promulgated pursuant thereto.
"Co-Lender Agreement": (i) with respect to the General Motors
Building Whole Loan, the General Motors
Building A Notes Intercreditor Agreement
and the General Motors Building Agreement
Among Noteholders, (ii) with respect
to the 63 Madison Avenue Whole Loan, the 63
Madison Avenue Intercreditor
Agreement, (iii) with respect to the
Lakeside Mall Whole Loan, the Lakeside Mall
Intercreditor Agreement, (iv) with respect
to the Wellpoint Office Tower Whole
Loan, the Wellpoint Office Tower
Intercreditor Agreement, (v) with respect to
the Loews Miami Beach Whole Loan, the Loews
Miami Beach Intercreditor Agreement
and (vi) with respect to the
FedEx-Bellingham Whole Loan, the FedEx-Bellingham
Intercreditor Agreement, in each case, as
applicable and as the context may
require.
"Collection Account": The trust account or accounts created and
maintained by the Servicer pursuant to
Section 3.05(a), which shall be entitled
"Midland Loan Services, Inc., for the
benefit of Wells Fargo Bank, N.A., as
Trustee, in trust for Holders of Deutsche
Mortgage & Asset Receiving
Corporation, COMM 2005-LP5 Commercial
Mortgage Pass-Through Certificates,
Collection Account" and which must be an
Eligible Account.
"Collection Period": With respect to any 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 May 2005, 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 Date 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 include the Business
Day prior to the Servicer Remittance
Date preceding the related Distribution
Date.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Any of the General Motors Building Pari Passu
Loans, the 63 Madison Avenue Pari Passu
Loan, the Lakeside Mall Pari Passu Loan,
the Wellpoint Office Tower Pari Passu
Loans, the Loews Miami Beach Pari Passu
Loans and the FedEx-Bellingham B 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-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-2L-6
Component, the Class A-2L-7 Component,
the Class A-3L Component, the Class A-SBL-1
Component, the Class A-SBL-2
Component, the Class A-4L-1 Component, the
Class A-4L-2 Component, the Class
A-4L-3 Component, the Class A-4L-4
Component, the Class A-4L-5 Component, the
Class A-1AL-1 Component, the Class A-1AL-2
Component, the Class A-1AL-3
Component, the Class A-1AL-4 Component, the
Class A-1AL-5 Component, the Class
A-1AL-6 Component, the Class A-1AL-7
Component, the Class A-1AL-8 Component, the
Class A-1AL-9 Component, the Class A-1AL-10
Component, the Class A-1AL-11
Component, the Class A-1AL-12 Component,
the Class A-1AL-13 Component, the Class
A-1AL-14 Component, the Class A-JL
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
E-L-1 Component, the Class E-L-2 Component,
the Class E-L-3 Component, the Class
E-L-4 Component, the Class F-L-1 Component,
the Class F-L-2 Component, the Class
F-L-3 Component, the Class G-L-1 Component,
the Class G-L-2 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, 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 applicable
Mortgage Loan and, if applicable,
the terms of the applicable 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
a Serviced Whole Loan, any portion of
such amounts payable to the holders of the
applicable 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, Class A-SB, Class A-4
and Class A-1A Certificates collectively
will be treated as one Class.
"Controlling Class Certificateholder": Each holder (or
Beneficial
Owner, if applicable) of a Certificate of
the Controlling Class as certified to
the Bond Administrator from time to time by
such holder (or Beneficial Owner).
"Controlling Class Representative": 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 Controlling
Class Representative is so selected or
(iii) upon receipt of a notice from a
majority of the Controlling Class
Certificateholders, by Certificate Balance,
that a Controlling Class
Representative is no longer designated, the
Controlling Class Certificateholder
that owns the largest aggregate Certificate
Balance of the Controlling Class
will be the Controlling Class
Representative; provided, further, that in order
for the Bond Administrator to certify the
status of the Controlling Class
Representative, the Controlling Class
Representative must provide notice and
certification of their holdings through the
Depository to the Bond Administrator
as to its status as Controlling Class
Representative upon which the Bond
Administrator shall use its best efforts to
verify such status. Allied Capital
Corporation shall be the initial
Controlling Class Representative, without
necessity of further notice or
selection.
"Corporate Trust Office": The offices of the Trustee located at
9062
Old Annapolis Road, Columbia, Maryland
21045-1951, Attention: Corporate Trust
Services (CMBS), COMM 2005-LP5, 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
Lower-Tier Regular Interest.
"Corresponding Class X Component": As defined in the
Preliminary
Statement with respect to any Corresponding
Class of Certificates or
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
Corresponding Class X Component.
"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, Class A-SB, Class A-4
and Class A-1A Certificates have
been reduced to zero.
"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": With respect to each Mortgage Loan or Serviced
Whole
Loan, the later of April 1, 2005 or the
origination date of such Mortgage Loan
or Serviced Whole Loan.
"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 Whole 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 Whole 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 Whole 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 Whole 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 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 related Mortgage Loan
or Serviced Whole Loan.
"Defeasance Account": As defined in Section 3.30(j).
"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": (i) with respect to any Mortgage
Loan, other than any Whole Loan, the
Controlling Class Representative; (ii) with
respect to the General Motors Building
Whole Loan, (a) at all times while no
General Motors Building Control Appraisal
Event has occurred and is continuing
and the Class GMB Directing
Certificateholder is not the related Borrower or an
affiliate of the related Borrower, the
Class GMB Directing Certificateholder and
(b)(1) while a Control Appraisal Event has
occurred and is continuing or (2) at
any time while the Class GMB Directing
Certificateholder is the related Borrower
or an affiliate of the related Borrower,
the majority holder, by Stated
Principal Balance, of the General Motors
Building Senior Loans; provided,
however, that with respect to the
immediately preceding clause (b) only, if
noteholders then holding a majority of the
Stated Principal Balance of the
General Motors Building Senior Loans are
not able to agree on a course of action
that satisfies the Servicing Standard
within 45 days after receipt of a request
for consent to any action by the Servicer
or the Special Servicer, as
applicable, the Controlling Class
Representative will be entitled to direct the
Servicer or the Special Servicer, as
applicable, on a course of action to follow
that satisfies the requirements set forth
herein; (iii) with respect to the
Wellpoint Office Tower Mortgage Loan, the
majority holder, by Stated Principal
Balance, of the Wellpoint Office Tower
Whole Loan; provided, however, that if
noteholders then holding a majority of the
Stated Principal Balance of the
Wellpoint Office Tower Whole Loan are not
able to agree on a course of action
that satisfies the Servicing Standard
within 45 days after receipt of a request
for consent to any action by the Servicer
or the Special Servicer, as
applicable, the Controlling Class
Representative will be entitled to direct the
Servicer or the Special Servicer, as
applicable, on a course of action to follow
that satisfies the requirements set forth
herein; (iv) with respect to the Loews
Miami Beach Mortgage Loan, the majority
holder, by Stated Principal Balance, of
the Loews Miami Beach Whole Loan; provided,
however, that if noteholders then
holding a majority of the Stated Principal
Balance of the Loews Miami Beach
Whole Loan are not able to agree on a
course of action that satisfies the
Servicing Standard within 45 days after
receipt of a request for consent to any
action by the Servicer or the Special
Servicer, as applicable, the Controlling
Class Representative will be entitled to
direct the Servicer or the Special
Servicer, as applicable, on a course of
action to follow that satisfies the
requirements set forth herein; and (v) with
respect to the FedEx-Bellingham
Mortgage Loan, the Controlling Class
Representative, except as to matters set
forth in Section 3.31 herein and as
provided in the FedEx-Bellingham
Intercreditor Agreement.
"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).
"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 or the Lower-Tier 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, the Lower-Tier Distribution
Account and the Grantor Trust 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 May 10, 2005.
"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
and (ii) any Mortgage Loan or Serviced
Whole Loan after the Maturity Date
therefore or any REO Loan, 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.
"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 (x) "A-1" by S&P and
"P-1" by Moody's and (y) to the extent that
Fitch or DBRS, as applicable is
rating a securitization transaction into
which a Serviced Pari Passu Loan is
deposited and such account relates to the
related Serviced Whole Loan, "F1" by
Fitch and/or "R-1 (middle)" by DBRS, as
applicable, or, if not rated by Fitch or
DBRS, as applicable, 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 (x) "AA-" by
S&P and "Aa3" by Moody's and (y) to the
extent that Fitch or DBRS, as applicable is
rating a securitization transaction
into which a Serviced Pari Passu Loan is
deposited and such account relates to
the related Serviced Whole Loan, "AA-" by
Fitch and/or "AA (low)" by DBRS, or if
not rated by Fitch or DBRS, as applicable,
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, (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, or (iv) an
account or accounts maintained with PNC
Bank (A) so long as PNC Bank's long-term
unsecured debt rating shall be at least (x)
"A1" from Moody's and "A" from S&P
(if the deposits are to be held in the
account for more than 30 days) and (y) to
the extent that Fitch or DBRS, as
applicable is rating a securitization
transaction into which a Serviced Pari
Passu Loan is deposited and such account
relates to the related Serviced Whole Loan,
"A" by Fitch and/or DBRS, as
applicable, or if PNC Bank is not rated by
Fitch or DBRS, as applicable, an
equivalent rating such as those listed
above in this subsection (iv) by two
nationally-recognized statistical rating
organizations, or (B) PNC's short-term
deposit or short-term unsecured debt rating
shall be at least (x) "P-1" from
Moody's and "A-1" from S&P (if the
deposits are to be held in the account for 30
days or less) and (y) to the extent that
Fitch or DBRS, as applicable is rating
a securitization transaction into which a
Serviced Pari Passu Loan is deposited
and such account relates to the related
Serviced Whole Loan, "F1" by Fitch
and/or DBRS, as applicable, or if PNC Bank
is not rated by Fitch or DBRS, as
applicable, an equivalent rating such as
those listed above in this subsection
(iv) by two nationally-recognized
statistical rating organizations. 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, Loan Agreement or other Loan
Document 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 Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as
having a Revised Rate, interest
accrued on and allocable to such Mortgage
Loan after the Anticipated Repayment
Date allocable to the Excess Rate,
including all interest accrued thereon. The
Excess Interest shall not be an asset of
the Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder. For the avoidance
of doubt, any Excess Interest
allocable to any Serviced Companion Loan
pursuant to a related Co-Lender
Agreement shall not constitute "Excess
Interest" hereunder.
"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.
"Excess Liquidation Proceeds Account": The segregated trust
account
or sub-account created and maintained by
the Bond Administrator pursuant to
Section 3.05(j) 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 2005-LP5 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 in the Mortgage Pool, the aggregate
Prepayment Interest Shortfalls with
respect to the Mortgage Pool in excess of
the Servicer Prepayment Interest
Shortfall with respect to the Mortgage
Pool.
"Excess Rate": With respect to each of the Mortgage Loans
indicated
on the Mortgage Loan Schedule as having a
Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the
applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Excess Servicing Strip": The excess of the Servicing Fee Rate
over
0.005% (0.50 basis points) per annum,
subject to reduction by the Trustee
pursuant to Section 3.12(a).
"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 and corrected Mortgage Loan
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.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor
thereto.
"FedEx-Bellingham B Loan": As defined in the preliminary
statement.
"FedEx-Bellingham B Loan Noteholder": The holder of the Note for
the
FedEx-Bellingham B Loan.
"FedEx-Bellingham Intercreditor Agreement": That certain
intercreditor agreement among note holders,
dated as of November 10, 2003 by and
between Capital Lease LP and LaSalle Bank
National Association, as mortgage loan
seller, as from time to time amended,
supplemented or modified.
"FedEx-Reno Airport Mortgage Loan": As defined in the
preliminary
statement.
"FedEx-Reno Airport Whole Loan" As defined in the preliminary
statement.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan, REO 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 a purchase pursuant
to the applicable Co-Lender Agreement
or any Mortgage Loan or Whole Loan subject
to purchase pursuant to any related
mezzanine intercreditor 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 or REO 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 Defeasance Rights and Obligations": As defined in Section
3.30(m).
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement
dated and effective the Closing Date,
between GACC and the Depositor.
"GECMC 2005-C1 Pooling and Servicing Agreement": As defined in
the
preliminary statement.
"GECMC 2005-C1 Servicer": As defined in the preliminary
statement.
"GECMC 2005-C1 Special Servicer": As defined in the preliminary
statement.
"GECMC 2005-C1 Trustee": As defined in the preliminary
statement.
"General Motors Building A Notes Intercreditor Agreement": With
respect to the General Motors Building
Mortgage Loan and the General Motors
Building Pari Passu Loans, that certain
intercreditor agreement, dated as of the
Closing Date, by and among the initial
holder of the General Motors Building
Mortgage Loan and the initial holders of
the General Motors Building Pari Passu
Loans, as from time to time amended,
supplemented or modified.
"General Motors Building Agreement Among Noteholders": With
respect
to the General Motors Building Senior Loans
and the General Motors Building B
Loan, that certain agreement among
noteholders, dated as of the Closing Date, by
and between the initial holders of the
General Motors Building Senior Loans and
the General Motors Building B Loan, as from
time to time amended, modified or
supplemented.
"General Motors
Building B Loan": As defined in the preliminary
statement herein.
"General Motors Building B Loan Noteholder": The holder of the
Note
for the General Motors Building B Loan,
which for so long as the General Motors
Building B Loan shall be in the Trust Fund,
shall be the Trustee on behalf of
the Trust.
"General Motors Building B Loan Option Price": As defined in
Section
3.18(m) of this Agreement.
"General Motors Building B Loan Purchase Option": As defined in
Section 3.18(m) of this Agreement.
"General Motors Building B Loan Purchase Option Notice": As
defined
in Section 3.18(m) of this Agreement.
"General Motors Building Co-Lender Agreement": Collectively,
the
General Motors Building A Notes
Intercreditor Agreement and the General Motors
Building Agreement Among Noteholders.
"General Motors Building Companion Loans": As defined in the
preliminary statement herein.
"General Motors Building Control Appraisal Event": With respect
to
the General Motors Building Whole Loan,
(a) (1) the initial principal balance of the General Motors
Building
B Loan minus (2) the sum of (x) any
payments of principal (whether as scheduled
amortization, Principal Prepayments or
otherwise) allocated to, and received on
or after the Closing Date with respect to
the General Motors Building B Loan,
(y) any Appraisal Reduction Amounts
allocated to the General Motors Building B
Loan and (z) any realized losses allocated
to the General Motors Building B
Loan, is less than
(b) 25% of (1) the initial principal balance of the General
Motors
Building B Loan, minus (2) any payments of
principal (whether as scheduled
amortization, Principal Prepayments or
otherwise) allocated to, and received on
or after the Closing Date with respect to
the General Motors Building B Loan.
For purposes of determining whether a
General Motors Building Control Appraisal
Event exists for the General Motors
Building Whole Loan, Appraisal Reduction
Amounts for such Whole Loan shall be
allocated first to the General Motors
Building B Loan, and then to the General
Motors Building Senior Loans (provided,
in each case, that any such Appraisal
Reduction Amount shall not be allocated to
the General Motors Building B Loan to the
extent (but only to the extent) that
the principal balance of the General Motors
Building B Loan, net of such
Appraisal Reduction Amounts, would be less
than zero).
"General Motors Building Cure Right": the "Cure Right," as
defined
in the General Motors Building Agreement
Among Noteholders.
"General Motors Building Material Event of Default": a
"Material
Event of Default," as defined in the
General Motors Building Agreement Among
Noteholders.
"General Motors Building Monetary Event of Default": a
"Monetary
Event of Default," as defined in the
General Motors Building Agreement Among
Noteholders.
"General Motors Building Mortgage Loan": As defined in the
preliminary statement herein.
"General Motors Building Pari Passu Loan Noteholders": The
holders
of the Notes for the General Motors
Building Pari Passu Loans.
"General Motors Building Pari Passu Loans": As defined in the
preliminary statement herein.
"General Motors Building Senior Loans": As defined in the
preliminary statement herein.
"General Motors Building Service Providers": With respect to
each
General Motors Building Pari Passu Loan
that has been deposited into a
securitization trust, the related trustee,
master servicer, special servicer,
sub-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.
"General Motors Building Whole Loan": As defined in the
preliminary
statement herein.
"Global Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class X-C,
Class X-P, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class GMB-1,
Class GMB-2, Class GMB-3 and Class GMB-4
Certificates.
"Grantor Trust": As defined in the preliminary statement
herein.
"Grantor Trust Distribution Account": The segregated trust
account
or sub-account created and maintained by
the Bond Administrator pursuant to
Section 3.05(c), which shall be entitled
"Wells Fargo Bank, N.A., as Trustee, in
trust for Holders of Deutsche Mortgage
& Asset Receiving Corporation, COMM
2005-LP5 Commercial Mortgage Pass-Through
Certificates, Grantor Trust
Distribution Account," and which must be an
Eligible Account or a sub-account of
an Eligible Account. The Grantor Trust
Distribution Account shall not be an
asset of the Lower-Tier REMIC or the
Upper-Tier REMIC.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified
on
the Mortgage Loan Schedule as belonging to
Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified
on
the Mortgage Loan Schedule as belonging to
Loan Group 2.
"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,
the Trustee.
"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, the Directing Holder, 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,
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 or the Special
Servicer, as applicable, 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 or the Special Servicer, as
applicable, 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 Rate": The stated Mortgage Rate with respect to an ARD
Loan.
"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
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 Q, 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 minus the amount of
any Excess Prepayment Interest
Shortfall or Class GMB Excess Prepayment
Interest Shortfall, as applicable,
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 Deposit Amount": Shall mean an aggregate amount of
$591,147, consisting of $197,263, $62,938,
$150,700, $44,479, $26,203, $25,432,
$9,633, $51,848 and $22,653, with respect
to the Mortgage Loans identified on
the Mortgage Loan Schedule as Loan Nos. 8,
32, 9, 10, 34, 35, 36, 40 and 68,
respectively, which in each case represents
the aggregate amount of interest
that would have accrued at the related
Mortgage Rate on the Stated Principal
Balance as of the Cut-off Date of such
Mortgage Loan had such Mortgage Loan been
originated on April 1, 2005, for the period
from and including April 1, 2005 to
but excluding May 1, 2005.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the
Bond Administrator pursuant to Section
3.05(f), which shall be entitled "Wells
Fargo Bank, N.A., as Trustee, in trust
for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2005-LP5
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 Holder
of a Certificate, 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.
"Lakeside Mall A-1 Note": With respect to the Lakeside Mall
Whole
Loan, the related promissory note in the
original principal amount of
$97,500,000 which is pari passu in right of
payment to the Lakeside Mall
Mortgage Loan, as from time to time
amended, supplemented or modified, and any
replacements therefor.
"Lakeside Mall Intercreditor Agreement": With respect to the
Lakeside Mall Mortgage Loan and the
Lakeside Mall Pari Passu Loan, that certain
intercreditor agreement, dated as of
February 17, 2005, by and among the initial
holder of the Lakeside Mall Mortgage Loan
and the initial holder of the Lakeside
Mall Pari Passu Loan, as from time to time
amended, supplemented or modified.
"Lakeside Mall Mortgage Loan": As defined in the preliminary
statement herein.
"Lakeside Mall Nonrecoverable Advance": Any "Nonrecoverable
Servicing Advance" (as defined in the GECMC
2005-C1 Pooling and Servicing
Agreement) made with respect to the
Lakeside Mall Mortgage Loan pursuant to and
in accordance with the GECMC 2005-C1
Pooling and Servicing Agreement.
"Lakeside Mall Pari Passu Loan Noteholder": The holder of the
Note
for the Lakeside Mall Pari Passu Loan.
"Lakeside Mall Pari Passu Loan": As defined in the preliminary
statement herein.
"Lakeside Mall Service Providers": With respect to the Lakeside
Mall
Pari Passu Loan that has been deposited
into a securitization trust, the related
trustee, master servicer, special servicer,
sub-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.
"Lakeside Mall Whole Loan": As defined in the preliminary
statement
herein.
"LaSalle": LaSalle Bank National Association, in its capacity as
a
Mortgage Loan Seller, and its
successors.
"LaSalle Defeasance Rights and Obligations": As defined in
Section
3.30(n).
"LaSalle Purchase Agreement": The Mortgage Loan Purchase
Agreement,
dated and effective the Closing Date,
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 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 Specially Serviced Loan or
REO Loan or with respect to each
Mortgage Loan as specified in clause (b) of
this definition, in each case as to
which the Special Servicer receives a full
or discounted payoff with respect
thereto from the related Borrower or
Mortgage Loan Seller, as applicable, 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) or (v) of the
definition of Liquidation Proceeds (except,
in the case of clause (iii), to the
extent a Liquidation Fee is required to be
paid pursuant to Section 3.18
hereof); no such fee shall be payable in
the case of clause (vi) of the
definition of Liquidation Proceeds unless
the existing or any future related
mezzanine intercreditor agreement requires
the purchaser to pay such fee; no
such fee shall be payable in the case of
clause (vii) of the definition of
Liquidation Proceeds except to the extent
the related Co-Lender Agreement
requires the purchaser to pay such fee, 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(d), 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(d) (and giving effect to any
applicable extension period beyond the end
of the Initial Resolution Period set
forth in Section 2.03(d)) 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 General Motors Building Pari
Passu Loans, the General Motors
Building B Loan, the Wellpoint Office Tower
Pari Passu Loans and the Loews Miami
Beach Pari Passu Loan 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(d) 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 existing
mezzanine indebtedness or any mezzanine
indebtedness that may exist on a future
date, the purchase of the related Mortgage
Loan by a mezzanine lender; (vii) in
the case of the General Motors Building
Mortgage Loan or the FedEx-Bellingham
Mortgage Loan, the purchase of the related
Mortgage Loan by the holder of the
FedEx-Bellingham B Loan or the Class GMB
Directing Certificateholder, as
applicable, pursuant to the related
Co-Lender Agreement; or (viii) except for
purposes of Section 3.12(c) and (d), the
transfer of any Loss of Value Payments
from the Loss of Value Reserve Fund to the
Collection Account.
"Loan Agreement": With respect to any Mortgage Loan or 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 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 Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor
REO Loans with respect thereto.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loan that are
Group 2 Mortgage Loans and any successor
REO Loans with respect thereto.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Principal Distribution Amount
attributable to Loan Group 2.
"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.
"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.
"Loews Miami Beach Intercreditor Agreement": With respect to
the
Loews Miami Beach Mortgage Loan and the
Loews Miami Beach Pari Passu Loans, that
certain intercreditor agreement, dated as
of the Closing Date, by and among the
initial holder of the Loews Miami Beach
Mortgage Loan and the initial holders of
the Loews Miami Beach Pari Passu Loans, as
from time to time amended,
supplemented or modified.
"Loews Miami Beach Mortgage Loan": As defined in the
preliminary
statement herein.
"Loews Miami Beach Pari Passu Loans": As defined in the
preliminary
statement herein.
"Loews Miami Beach Service Provider": With respect to each
Loews
Miami Beach Pari Passu Loan that has been
deposited into a securitization trust,
the related trustee, master servicer,
special servicer, sub-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.
"Loews Miami Beach Whole Loan": As defined in the preliminary
statement herein.
"Loss of Value Payment": As defined in Section 2.03(d).
"Loss of Value Reserve Fund": The "outside reserve fund" (within
the
meaning of Treasury Regulations Section
1.860G-2(h)) designated as such pursuant
to Section 3.05(e) of this Agreement. The
Loss of Value Reserve Fund will be
part of the Trust Fund but not part of the
Grantor Trust or any REMIC.
"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 2005-LP5
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.
"Lower-Tier Distribution Amount": The sum of the Pooled
Lower-Tier
Distribution Amount and Class GMB
Lower-Tier Distribution Amount.
"Lower-Tier Principal 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 (i) in the case of
any Pooled Lower-Tier Regular
Interest, 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)
and 4.01(f) hereof and (ii) in the
case of any Class GMB Lower-Tier Regular
Interest, the amount of distributions
of the Class GMB Lower-Tier Distribution
Amount allocable to principal and Class
GMB Collateral Support Deficits allocable
thereto in all prior periods as
described in Section 4.01A(a)(ii) and
4.01A(f) hereof.
"Lower-Tier Regular Interests": The Class A-1L-1, Class A-1L-2,
Class A-1L-3, Class A-2L-1, Class A-2L-2,
Class A-2L-3, Class A-2L-4, Class
A-2L-5, Class A-2L-6, Class A-2L-7, Class
A-3L, Class A-SBL-1, Class A-SBL-2,
Class A-4L-1, Class A-4L-2, Class A-4L-3,
Class A-4L-4, Class A-4L-5, Class
A-1AL-1, Class A-1AL-2, Class A-1AL-3,
Class A-1AL-4, Class A-1AL-5, Class
A-1AL-6, Class A-1AL-7, Class A-1AL-8,
Class A-1AL-9, Class A-1AL-10, Class
A-1AL-11, Class A-1AL-12, Class A-1AL-13,
Class A-1AL-14, Class A-JL, Class B-L,
Class C-L, Class D-L-1, Class D-L-2, Class
E-L-1, Class E-L-2, Class E-L-3,
Class E-L-4, Class F-L-1, Class F-L-2,
Class F-L-3, Class G-L-1, Class G-L-2,
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,
Class P-L, Class GMB-1-L, Class
GMB-2-L, Class GMB-3-L and Class GMB-4-L
Interests, issued by the Lower-Tier
REMIC and held by the Trustee as assets of
the Upper-Tier REMIC. Each Lower-Tier
Regular Interest (i) relates to a Class of
Certificates (other than the Class R,
Class LR, Class X-C, Class X-P and Class Q
Certificates), (ii) is
uncertificated, (iii) has an initial
Lower-Tier Principal Balance equal to the
original Lower-Tier Principal Balance set
forth in the preliminary statement
herein, (iv) other than the Class GMB
Lower-Tier Regular Interests, has a
Pass-Through Rate equal to the Weighted
Average Net Mortgage Pass-Through Rate,
and in the case of the Class GMB Lower-Tier
Regular Interests, has a
Pass-Through Rate equal to the Pass-Through
Rate of the Class of Corresponding
Certificates, (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 Excess Interest), collections
thereon, the Trust's interest in any REO
Property acquired in respect thereof
(and, in the event the 63 Madison Avenue
Whole Loan or the Lakeside Mall Whole
Loan becomes an "REO Property" under the
GECMC 2005-C1 Pooling and Servicing
Agreement, as the case may be, 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 (to the extent
of the Trust Fund's interest therein), 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.
"Management Agreement": With respect to any Mortgage Loan or
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 Serviced Whole
Loan,
any property manager for the related
Mortgaged Properties.
"Master
Servicing Fee": With respect to each Mortgage Loan and
Serviced Companion Loan and for any
Distribution Date, an amount per Interest
Accrual Period equal to the product of (i)
the respective 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).
For the avoidance of doubt, with
respect to any B Loan (other than the
General Motors Building B Loan), no
Servicing Fee shall accrue on the Stated
Principal Balance thereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan
or
Serviced Companion Loan, the rate per annum
set forth on Exhibit B-2.
"Material Breach": As defined in Section 2.03(d).
"Material Defect": As defined in Section 2.03(d).
"Maturity Date": With respect to any Mortgage Loan or Serviced
Companion Loan as of any date of
determination, the date on which the last
payment of principal is due and payable
under the related Note, after taking
into account all Principal Prepayments
received prior to such date of
determination, but without giving effect to
(i) any acceleration of the
principal of such Mortgage Loan or Serviced
Companion Loan by reason of default
thereunder or (ii) any grace period
permitted by the related Note.
"Modified Mortgage Loan": Any Specially Serviced Loan which has
been
modified by the Special Servicer pursuant
to Section 3.30 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 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, excluding any Excess
Interest. 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, including without limitation the
General Motors Building B Loan. 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 but
shall include the Serviced Mortgage
Loans.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the LaSalle Purchase Agreement
and the PNC 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 or Anticipated Repayment 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 an Anticipated Repayment
Date;
(m) the Revised Rate of such Mortgage Loan, if any;
(n) 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;
(o) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized;
(p) the applicable Loan Group to which such Mortgage Loan
belongs;
and
(q) the number of units, pads, rooms or square feet with respect
to
each Mortgaged Property.
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 PNC Bank.
"Mortgage Pool": All of the Mortgage Loans and any successor
REO
Loans, collectively (excluding the General
Motors Building B Loan and any REO
Loan with respect thereto). 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, 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 in the related Note from time
to time. The "Mortgage Rate" for purposes
of calculating the Net Mortgage
Pass-Through Rate and the Weighted Average
Net Mortgage Pass-Through Rate shall
be the Mortgage Rate of such Mortgage Loan
or Serviced Companion Loan without
giving effect to any Default Rate or any
Excess Interest 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, 3.31 or
3.32 hereof, as applicable.
"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 or prior to such
Collection Period and (B) from each
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 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 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 Mortgage
Loan
or Serviced Companion Loan and any
Distribution Date, the per annum rate equal
to the Mortgage Rate for such Mortgage Loan
or Serviced Companion Loan, minus,
for any such Mortgage Loan or Serviced
Companion Loan, the aggregate of the
applicable Servicing Fee Rate (in the case
of the 63 Madison Avenue Mortgage
Loan and the Lakeside 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
Mortgage Loan or Serviced Companion Loan
will be determined without regard to
any modification, waiver or amendment of
the terms of such Mortgage Loan or
Serviced Companion Loan, whether agreed to
by the Servicer or resulting from a
bankruptcy, insolvency or similar
proceeding involving the Borrower.
Notwithstanding the foregoing, if any such Mortgage Loan 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 Mortgage Loan for any
Interest Accrual Period will be the
annualized rate at which interest would have
to accrue in respect of such Mortgage Loan
on the basis of a 360-day year
consisting of twelve 30-day months in order
to produce the aggregate amount of
interest actually accrued in respect of
such Mortgage Loan 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
Mortgage Loan and also with respect to the
General Motors Building Mortgage
Loan, 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 Withheld
Amounts 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 in the
Mortgage Pool exceeds the aggregate of all
Prepayment Interest Shortfalls for
all Mortgage Loans in the Mortgage Pool as
of any Distribution Date.
"Net Prepayment Interest Shortfall": With respect to the
Mortgage
Loans in the Mortgage Pool, the aggregate
Prepayment Interest Shortfalls on the
Mortgage Loans in the Mortgage Pool in
excess of the Servicer Prepayment
Interest Shortfall on the Mortgage Loans in
the Mortgage Pool.
"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
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 such 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": Each of the 63 Madison Avenue
Mortgage
Loan and the Lakeside Mall Mortgage Loan,
as the context may require.
"Non-Serviced Mortgage Loan Service Providers": The 63 Madison
Avenue Service Providers and the Lakeside
Mall Service Providers, as the context
may require.
"Non-Serviced Whole Loans": Each of the 63 Madison Avenue Whole
Loan
and the Lakeside 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) any 63
Madison Avenue Nonrecoverable
Advance and (c) any Lakeside Mall
Nonrecoverable Advance. Workout-Delayed
Reimbursement Amounts shall constitute a
Nonrecoverable Advance only when the
Person making such determination in
accordance with the procedures specified in
the definition of Nonrecoverable P&I
Advance or Nonrecoverable Property Advance,
as applicable, and taking into account
factors such as all other outstanding
Advances, 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 Loan or REO Loan and (ii) with
respect to Nonrecoverable Property
Advances, the general collections on the
related Mortgage Loan (or if
applicable, a Serviced Whole Loan) or REO
Loan.
"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, in each case in
accordance with the Servicing Standard, 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
Non-Serviced Mortgage Loans) or Serviced
Whole Loan or any REO Property that, in
the reasonable judgment of the Servicer,
the Special Servicer, in each case in
accordance with the Servicing Standard, 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 the 63 Madison Avenue Whole Loan
or the Lakeside Mall Whole Loan
shall be made by the GECMC 2005-C1 Servicer
or any other party making such
determination, pursuant to the GECMC
2005-C1 Pooling and Servicing Agreement.
Any such determination made by the GECMC
2005-C1 Servicer 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-C Certificates as a Class,
the Class X-C Notional Amount as of such
date of determination; (ii) with
respect to any Class X-C Certificate, the
product of the Percentage Interest
evidenced by such Certificate and the Class
X-C Notional Amount as of such date
of determination; (iii) with respect to all
of the Class X-P Certificates as a
Class, the Class X-P Notional Amount as of
such date of determination; (iv) with
respect to any Class X-P Certificate, the
product of the Percentage Interest
evidenced by such Certificate and the Class
X-P Notional Amount as of such date
of determination; and (v) with respect to
any Component, as set forth in the
definition of such Component.
"Officer's 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, the Special Servicer 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 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": The GECMC 2005-C1 Pooling
and Servicing Agreement, as from time to
time amended, supplemented or modified.
"Other Servicer": With respect to the Other Pooling and
Servicing
Agreement, the related master servicer
thereunder.
"Other Special Servicer": With respect to the Other Pooling and
Servicing Agreement, the related special
servicer thereunder.
"Other Trustee": With respect to the 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.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class Q, 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-SB................... Class A-SB Pass-Through
Rate
Class A-4.................... Class A-4
Pass-Through Rate
Class A-1A................... Class A-1A
Pass-Through Rate
Class X-C.................... Class X-C
Pass-Through Rate
Class X-P.................... Class X-P
Pass-Through Rate
Class A-J.................... Class A-J
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
Class GMB-1.................. Class GMB-1
Pass-Through Rate
Class GMB-2.................. Class GMB-2
Pass-Through Rate
Class GMB-3.................. Class GMB-3
Pass-Through Rate
Class GMB-4.................. Class GMB-4
Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests
(other
than the Class GMB Lower-Tier Regular
Interests), the Weighted Average Net
Mortgage Pass-Through Rate and, with
respect to the Class GMB Lower-Tier Regular
Interests, the Pass-Through Rate of the
Class of Corresponding Certificates.
"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 or Excess Interest.
"Percentage Interest": As to any Certificate (other than the Class
Q
Certificates), the percentage interest
evidenced thereby in distributions
required to be made with respect to the
related Class. With respect to any
Certificate (except the Class Q, Class R
and Class LR Certificates), the
percentage interest is equal to the initial
denomination of such Certificate
divided by the initial Certificate Balance
or Notional Balance, as applicable,
of such Class of Certificates. With respect
to any Class Q, Class R or Class LR
Certificate, the percentage interest is set
forth on the face thereof.
"Performing Loan": A Mortgage Loan or Serviced Whole Loan that
is
not a Specially Serviced Loan or REO
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
(and Fitch and/or DBRS, as
applicable, to the extent that a Serviced
Pari Passu Loan has been deposited
into a commercial mortgage securitization
that is rated by Fitch and/or DBRS, as
applicable, and the particular related
investment relates solely to the related
Serviced Whole Loan, provided, however, if
any of the following obligations or
securities is not rated by Fitch and/or
DBRS, as applicable, then no
confirmation will be required from Fitch
and/or DBRS, as applicable, so long as
such obligation or security has the
required ratings, if any, by two
nationally-recognized statistical rating
organizations) 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:
(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
(and Fitch and/or DBRS, as applicable, to
the extent that a Serviced Pari Passu
Loan has been deposited into a commercial
mortgage securitization that is rated
by Fitch and/or DBRS, as applicable, and
the particular related investment
relates solely to the related Serviced
Whole Loan) or, if not rated by S&P or
Moody's or Fitch and/or DBRS, as applicable
(to the extent that a Serviced Pari
Passu Loan has been deposited into a
commercial mortgage securitization that is
rated by Fitch and/or DBRS, as applicable,
and the particular related investment
relates solely to the related Serviced
Whole Loan), otherwise acceptable to S&P
or Moody's and acceptable to Fitch and/or
DBRS, as applicable, with respect to a
Serviced Companion Loan security that is
rated by Fitch and/or DBRS, as
applicable, and in each case 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 (and Fitch
and/or DBRS, as applicable, to the
extent that a Serviced Pari Passu Loan has
been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan) or, if not rated by S&P or
Moody's or Fitch and/or DBRS, as applicable (to
the extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan), otherwise acceptable to S&P or
Moody's and acceptable to Fitch and/or
DBRS, as applicable, with respect to a
Serviced Companion Loan security that is
rated by Fitch and/or DBRS, as applicable,
and in each case 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 (and
Fitch and/or DBRS, as applicable, to the
extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and the
particular related investment relates
solely to the related Serviced Whole Loan)
or, if not rated by S&P or Moody's or
Fitch and/or DBRS, as applicable (to the
extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and the
particular related investment relates
solely to the related Serviced Whole Loan),
otherwise acceptable to S&P or
Moody's and acceptable to Fitch and/or
DBRS, as applicable, with respect to a
Serviced Companion Loan security that is
rated by Fitch and/or DBRS, as
applicable, and in each case 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 (and
Fitch and/or DBRS, as applicable, to the
extent that a Serviced Pari Passu Loan has
been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan) or, if not rated by S&P or
Moody's or Fitch and/or DBRS, as applicable (to
the extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan), otherwise acceptable to S&P or
Moody's and acceptable to Fitch and/or
DBRS, as applicable, with respect to a
Serviced Companion Loan security that is
rated by Fitch and/or DBRS, as applicable,
and in each case 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 (and
Fitch and/or DBRS, as applicable, to
the extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan) or, if not rated by S&P or
Moody's or Fitch and/or DBRS, as applicable (to
the extent that a Serviced Pari Passu Loan
has been deposited into a commercial
mortgage securitization that is rated by
Fitch and/or DBRS, as applicable, and
the particular related investment relates
solely to the related Serviced Whole
Loan), otherwise acceptable to S&P or
Moody's and acceptable to Fitch and/or
DBRS, as applicable, with respect to a
Serviced Companion Loan security that is
rated by Fitch and/or DBRS, as applicable,
and in each case 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 (and Fitch and/or DBRS, as
applicable, to the extent that a
Serviced Pari Passu Loan has been deposited
into a commercial mortgage
securitization that is rated by Fitch
and/or DBRS, as applicable, and the
particular related investment relates
solely to the related Serviced Whole Loan)
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 or the Lower-Tier
REMIC to fail to qualify as a REMIC at any
time that the Certificates are
outstanding, (c) a Person that is a
Disqualified Non-U.S. Person 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).
"PNC Bank": PNC Bank, National Association.
"PNC Bank Purchase Agreement": The Mortgage Loan Purchase
Agreement,
dated and effective the Closing Date,
between PNC Bank and the Depositor.
"Pooled Lower-Tier Distribution Amount": As defined in Section
4.01(a)(ii).
"Pooled Lower-Tier Regular Interests": All Lower-Tier Regular
Interests other than the Class GMB
Lower-Tier Regular Interests.
"Pooled Regular Certificates": All Classes of Certificates
other
than the Class GMB Certificates, Class Q
Certificates, Class LR Certificates and
Class R Certificates.
"Prepayment Assumption": The assumption that (i) each Mortgage
Loan
(other than an ARD Loan) does not prepay
prior to its respective Maturity Date
and (ii) each ARD Loan prepays on its
Anticipated Repayment 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).
"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
or
Serviced Companion Loan, the rate per annum
set forth on Exhibit B-2.
"Prime Rate": The "Prime Rate" as published in the "Money
Rates"
section of The Wall Street Journal, Eastern
edition (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 Balance Certificate": The Class A-1, Class A-2,
Class
A-3, Class A-SB, Class A-4, Class A-1A,
Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O 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 in the Mortgage Pool 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 in the Mortgage Pool that is
delinquent in respect of its Balloon
Payment;
(c) the Stated Principal Balance of each Mortgage Loan in the
Mortgage Pool 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 in the Mortgage Pool 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 in
the Mortgage Pool 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 in the
Mortgage Pool received in the related
Collection Period; and
(g) any other full or partial recoveries in respect of principal
of
Mortgage Loans in the Mortgage Pool ,
including Insurance Proceeds, Liquidation
Proceeds and Net REO Proceeds received in
the related Collection Period
(including any amount related to the Loss
of Value Payments to the extent that
such amount was transferred into the
Collection Account pursuant to Section
3.06(f) during 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 in the Mortgage Pool
or,
with respect to Property Advances, the Serviced Whole Loans, 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 in the Mortgage Pool or, with respect to Property
Advances,
the Serviced Whole Loans, in a period during which such
principal
collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date (provided, that,
in
the case of clauses (1) and (2) above, if any of the amounts
that
were reimbursed from principal collections on the Mortgage Loans
in
the Mortgage Pool or, with respect to Property Advances, the
Serviced Whole Loans, are subsequently recovered on the related
Mortgage Loan in the Mortgage Pool or, with respect to Property
Advances, the Serviced Whole Loans, 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-C,
Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O, Class P
