Exhibit 4.1
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
MIDLAND LOAN SERVICES, INC.,
Midland Servicer
GMAC COMMERCIAL MORTGAGE CORPORATION,
GMACCM Servicer
Collectively, the Servicers
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
and
WELLS FARGO BANK, N.A.,
Trustee and Paying Agent
---------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
---------------------------------------------------------------
COMM 2005-C6
Commercial Mortgage Pass-Through Certificates
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<PAGE>
TABLE OF CONTENTS
Page
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 each
Servicer, Special Servicer and Trustee......................
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 Each Servicer to Act as a
Servicer; Special Servicer to
Act as Special Servicer; Administration of the Mortgage
Loans and the Serviced Companion Loans......................
Section 3.02 Liability of each
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
Applicable 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 Trustee; Collection
Account Statements........
Section 3.14 Annual Statement as to
Compliance............................
Section 3.15 Annual Independent Public
Accountants' Servicing Report......
Section 3.16 Access to Certain
Documentation..............................
Section 3.17 Title and Management of REO
Properties and REO Accounts......
Section 3.18 Sale of Specially Serviced Loans
and REO Properties..........
Section 3.19 Additional Obligations of Each
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 Each
Servicer and the
Special Servicer; Record Keeping; Asset Status Report.......
Section 3.27
[Reserved]...................................................
Section 3.28 Limitations on and Authorizations
of the Applicable
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 Lakewood
Center Whole Loan..........
Section 3.32 Certain Intercreditor Matters
Relating to the Whole Loans....
Section 3.33 Certain Matters Relating to the
General Motors Building
Whole Loan and the Loews Universal Hotel Portfolio Whole
Loan........................................................
Section 3.34 Rights of Holders of the PNC/Mezz
Cap Whole Loans............
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02 Statements to Certificateholders;
Reports by Trustee;
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 SERVICERS AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the
Servicers and the Special
Servicer....................................................
Section 6.02 Merger or Consolidation of either
Servicer...................
Section 6.03 Limitation on Liability of the
Depositor, the Applicable
Servicer and Others.........................................
Section 6.04 Limitation on Resignation of
either Servicer and the
Special Servicer; Termination of either Servicer and the
Special Servicer............................................
Section 6.05 Rights of the Depositor and the
Trustee in Respect of the
Applicable Servicer and the Special Servicer................
Section 6.06 The Servicers or Special Servicer
as Owners of a
Certificate.................................................
Section 6.07 Certain Matters Relating to the
Non-Serviced Mortgage
Loans.......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee to Act; Appointment of
Successor.....................
Section 7.03 Notification to Certificateholders
and Other Persons.........
Section 7.04 Other Remedies of
Trustee....................................
Section 7.05 Waiver of Past Events of Default;
Termination................
Section 7.06 Trustee as Maker of
Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain Matters Affecting the
Trustee........................
Section 8.03 Trustee Not Liable for
Certificates or Mortgage Loans........
Section 8.04 Trustee May Own
Certificates.................................
Section 8.05 Payment of Trustee's Fees and
Expenses; Indemnification......
Section 8.06 Eligibility Requirements for
Trustee.........................
Section 8.07 Resignation and Removal of the
Trustee.......................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or Consolidation of
Trustee...........................
Section 8.10 Appointment of Co-Trustee or
Separate Trustee................
ARTICLE IX
TERMINATION
Section 9.01
Termination..................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01
Counterparts.................................................
Section 10.02 Limitation on Rights of
Certificateholders...................
Section 10.03 Governing
Law................................................
Section 10.04
Notices......................................................
Section 10.05 Severability of
Provisions...................................
Section 10.06 Notice to the Depositor and
Each Rating Agency...............
Section 10.07
Amendment....................................................
Section 10.08 Confirmation of
Intent.......................................
Section 10.09 No Intended Third-Party
Beneficiaries........................
Section 10.10
[Reserved]...................................................
Section 10.11 Entire
Agreement.............................................
Section 10.12 Third Party
Beneficiaries....................................
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1
Certificate
Exhibit A-2 Form of Class A-2
Certificate
Exhibit A-3 Form of Class A-3
Certificate
Exhibit A-4 Form of Class A-4
Certificate
Exhibit A-5 Form of Class A-AB
Certificate
Exhibit A-6 Form of Class A-5A
Certificate
Exhibit A-7 Form of Class A-5B
Certificate
Exhibit A-8 Form of Class A-1A
Certificate
Exhibit A-9 Form of Class X-C
Certificate
Exhibit A-10 Form of Class X-P
Certificate
Exhibit A-11 Form of Class A-J
Certificate
Exhibit A-12 Form of Class B
Certificate
Exhibit A-13 Form of Class C
Certificate
Exhibit A-14 Form of Class D
Certificate
Exhibit A-15 Form of Class E
Certificate
Exhibit A-16 Form of Class F
Certificate
Exhibit A-17 Form of Class G
Certificate
Exhibit A-18 Form of Class H
Certificate
Exhibit A-19 Form of Class J
Certificate
Exhibit A-20 Form of Class K
Certificate
Exhibit A-21 Form of Class L
Certificate
Exhibit A-22 Form of Class M
Certificate
Exhibit A-23 Form of Class N
Certificate
Exhibit A-24 Form of Class O
Certificate
Exhibit A-25 Form of Class P
Certificate
Exhibit A-26 Form of Class R
Certificate
Exhibit A-27 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 Form of Purchase
Option Notice
Exhibit O Form of Trustee Backup
Certification
Exhibit P-1 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 and S&P from the applicable
Servicer Regarding Defeasance of a Mortgage Loan
Exhibit U Form of Notice from
the Trustee Regarding the General Motors
Building Mortgage Loan and the Loews Universal Hotel Portfolio
Mortgage Loan
Exhibit V Information Request
Form
TABLE OF SCHEDULES
Schedule I Class A-AB 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 August 1, 2005,
among
Deutsche Mortgage & Asset Receiving
Corporation, as Depositor, Midland Loan
Services, Inc., as the servicer with
respect to all of the Mortgage Loans other
than Mortgage Loans sold by GMAC Commercial
Mortgage Corporation to the
Depositor and the Loews Universal Hotel
Portfolio Mortgage Loan (the "Midland
Servicer"), GMAC Commercial Mortgage
Corporation as the Servicer with respect to
the Mortgage Loans sold to the Depositor by
GMAC Commercial Mortgage Corporation
and the Loews Universal Hotel Portfolio
Mortgage Loan (the "GMACCM Servicer" and
collectively, with the Midland Servicer,
the "Servicers"), GMAC Commercial
Mortgage Corporation, as Special Servicer
and Wells Fargo Bank, N.A., as Trustee
and Paying Agent.
PRELIMINARY STATEMENT:
(Terms
used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be
issued
hereunder in multiple Classes which in the
aggregate will evidence the entire
beneficial ownership interest in the Trust
Fund consisting primarily of the
Mortgage Loans.
As provided herein, the Trustee will elect or will cause an
election
to be made to treat the Yorktowne Plaza
Mortgage Loan (a "Loan REMIC Loan") (and
certain other related assets) as an asset
of a separate REMIC (the "Loan REMIC")
pursuant to the REMIC Declaration dated
July 27, 2005 (the "Loan REMIC
Declaration"). The Loan REMIC has issued a
100% interest in which the Yorktowne
Plaza Mortgage Loan (the "Loan REMIC
Regular Interest") is to be held by the
Lower-Tier REMIC and a 100% interest (the
"Loan REMIC Residual Interest"), which
will be represented by the Class LR
Certificates.
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 Interest, Class A-1L-2
Interest, Class A-1L-3 Interest, Class
A-1L-4 Interest, Class A-2L-1 Interest,
Class A-2L-2 Interest, Class A-2L-3
Interest, Class A-2L-4 Interest, Class
A-2L-5 Interest, Class A-2L-6 Interest,
Class A-3L Interest, Class A-4L Interest,
Class A-ABL-1 Interest, Class A-ABL-2
Interest, Class A-5AL-1 Interest, Class
A-5AL-2 Interest, Class A-5AL-3
Interest, Class A-5AL-4 Interest, Class
A-5AL-5 Interest, Class A-5AL-6
Interest, Class A-5BL Interest, Class
A-1AL-1 Interest, Class A-1AL-2 Interest,
Class A-1AL-3 Interest, Class A-1AL-4
Interest, Class A-1AL-5 Interest, Class
A-1AL-6 Interest, Class A-1AL-7 Interest,
Class A-1AL-8 Interest, Class A-1AL-9
Interest, Class A-1AL-10 Interest, Class
A-1AL-11 Interest, Class A-1AL-12
Interest, Class A-1AL-13 Interest, Class
A-1AL-14 Interest, Class A-1AL-15
Interest, Class A-JL Interest, Class B-L
Interest, Class C-L Interest, Class
D-L-1 Interest, Class D-L-2 Interest, Class
E-L-1 Interest, Class E-L-2
Interest, Class E-L-3 Interest, Class E-L-4
Interest, Class F-L-1 Interest,
Class F-L-2 Interest, Class G-L-1 Interest,
Class G-L-2 Interest, Class G-L-3
Interest, Class H-L-1 Interest, Class H-L-2
Interest, Class J-L-1 Interest,
Class J-L-2 Interest, Class K-L-1 Interest,
Class K-L-2 Interest, Class L-L
Interest, Class M-L Interest, Class N-L
Interest, Class O-L Interest and Class
P-L Interest (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 25 Classes
of regular interests in the Upper-Tier
REMIC. The Class A-1, Class A-2, Class
A-3, Class A-4, Class A-AB, Class A-5A,
Class A-5B, 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 and Class P Certificates
(the "Regular Certificates") are designated
as classes of regular interests, and
the Class R Certificates are designated as
the sole class of residual interests,
in the Upper-Tier REMIC.
The portions of the Trust Fund consisting of the Loan REMIC
Residual
Interest, the Yorktowne Plaza Yield
Maintenance Amount, 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 LR Certificates will
represent the sole interests in the portion
of the Grantor Trust representing
the Loan REMIC Residual Interest under
federal income tax law. The Class A-1
Certificates, the Class X-C Certificates
and the Class X-P Certificates will
represent undivided beneficial interests in
their respective entitlement to the
portion of the Grantor Trust consisting of
the Yorktowne Plaza Yield Maintenance
Amount under federal income tax law.
The Mortgaged Property that secures the Mortgage Loan identified
as
Loan No. 1 on the Mortgage Loan Schedule
(the "Lakewood Center Mortgage Loan"),
also secures one separate mortgage loan to
the same Borrower (referred to herein
as the "Lakewood Center B Loan" or the
"Lakewood Center Companion Loan" and
together with the Lakewood Center Mortgage
Loan, the "Lakewood Center Whole
Loan") which is subordinate to the Lakewood
Center Mortgage Loan. The Lakewood
Center Whole Loan will be serviced pursuant
to this Agreement and the Lakewood
Center Intercreditor Agreement, as and to
the extent provided herein. Amounts
attributable to the Serviced Companion Loan
will not be assets of the Trust Fund
or the Trust REMICs and will be
beneficially owned by the Serviced Companion
Loan Noteholder.
The
Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 4 on the Mortgage Loan Schedule
(the "General Motors Building Mortgage
Loan"), also secures five companion loans
to the same Borrower, four of which
are pari passu in the right of payment (the
"General Motors Building Pari Passu
Loans" and together with the General Motors
Building Mortgage Loan, the "General
Motors Building Senior Loans") and one of
which is subordinate to the General
Motors Building Senior Loans, (the "General
Motors Building B Loan" and together
with the General Motors Building Senior
Loans, the "General Motors Building
Whole Loan"). The General Motors Building
Whole Loan will be serviced pursuant
to (i) a separate pooling and servicing
agreement (the "COMM 2005-LP5 Pooling
and Servicing Agreement"), dated as of
April 1, 2005, among Deutsche Mortgage &
Asset Receiving Corporation, as depositor,
Midland Loan Services, Inc., as
initial servicer (in such capacity, such
initial servicer or any successor
thereto, the "COMM 2005-LP5 Servicer"),
Lennar Partners, Inc., as initial
special servicer (in such capacity, such
initial special servicer or any
successor thereto, the "COMM 2005-LP5
Special Servicer"), Wells Fargo Bank,
N.A., as initial trustee (in such capacity,
such initial trustee or any
successor thereto, the "COMM 2005-LP5
Trustee") and LaSalle Bank National
Association, as bond administrator and
paying agent and (ii) the General Motors
Building A Notes Intercreditor Agreement or
the General Motors Building
Agreement Among Noteholders, as applicable.
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. 7 on the Mortgage Loan Schedule
(the "Loews Universal Hotel Portfolio
Mortgage Loan") also secures six companion
loans to the same Borrower, four of
which are pari passu in right of payment to
the Loews Universal Hotel Portfolio
Mortgage Loan (the "Loews Universal Hotel
Portfolio Pari Passu Loans" and
together with the Loews Universal Hotel
Portfolio Mortgage Loan, the "Loews
Universal Hotel Portfolio Senior Loans")
and two of which are subordinate to the
Loews Universal Hotel Portfolio Senior
Loans (the "Loews Universal Hotel
Portfolio B Loans" and together with the
Loews Universal Hotel Portfolio Senior
Loans, the "Loews Universal Hotel Portfolio
Whole Loan"). The Loews Universal
Hotel Portfolio Whole Loan will be serviced
pursuant to (i) a separate pooling
and servicing agreement (the J.P. Morgan
Chase Commercial Mortgage Securities
Corp. Series 2005-CIBC12 Commercial
Mortgage Pass-Through Certificates (the
"Series 2005-CIBC12 Pooling and Servicing
Agreement")), dated as of July 29,
2005, among J.P. Morgan Chase Commercial
Mortgage Securities Corp., as
depositor, GMAC Commercial Mortgage
Corporation, as initial servicer (in such
capacity, such initial servicer or any
successor thereto, the "Series
2005-CIBC12 Servicer"), J.E. Robert
Company, Inc., as initial special servicer
(in such capacity, such initial special
servicer or any successor thereto, the
"Series 2005-CIBC12 Special Servicer"),
LaSalle Bank National Association, as
initial trustee (in such capacity, such
initial trustee or any successor
thereto, the "Series 2005-CIBC12 Trustee")
and ABN AMRO Bank N.V., as fiscal
agent and (ii) the Loews Universal Hotel
Portfolio Agreement Among Noteholders.
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.
Each of the Mortgage Loans known as the "Indian Trail Shopping
Center" loan, the "Walker Springs Community
Shopping Center" loan, the "High
Point Center" loan and the
"CVS-Eckerds-Kansas City" loan is secured by its
related Mortgaged Property (each a
"PNC/Mezz Cap Loan" and collectively the
"PNC/Mezz Cap Loans"). Each Mortgaged
Property also secures one separate
mortgage loan to the related Borrower (each
referred to herein as the "PNC/Mezz
Cap B Loan" or the "PNC/Mezz Cap Companion
Loan" and together with the related
PNC/Mezz Cap Loan, each a "PNC/Mezz Cap
Whole Loan") which is subordinate to the
related PNC/Mezz Cap Loan. Each PNC/Mezz
Cap Whole Loan will be serviced
pursuant to this Agreement and its related
PNC/Mezz Cap Intercreditor Agreement,
as and to the extent provided herein and
therein. Amounts attributable to the
Serviced Companion Loan will not be assets
of the Trust Fund or the Trust REMICs
and will be beneficially owned by the
related Serviced Companion Loan
Noteholder.
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.
Corresponding Original
Corresponding
Certificate Lower-Tier
Lower-Tier
Components
of
Corresponding Balance or
Regular
Principal
Class X
Certificates Notional Balance
Interest(s)
Balance(2) Certificates
------------ ----------------
-----------
---------- ------------
Class A-1(1).. $48,000,000
A-1L-1
$2,597,000
A-1L-1
A-1L-2
$3,523,000
A-1L-2
A-1L-3
$33,466,000
A-1L-3
A-1L-4
$8,414,000
A-1L-4
Class A-2..... $184,500,000
A-2L-1
$30,246,000
A-2L-1
A-2L-2
$38,819,000
A-2L-2
A-2L-3
$38,041,000
A-2L-3
A-2L-4
$37,158,000
A-2L-4
A-2L-5
$36,395,000
A-2L-5
A-2L-6
$3,841,000
A-2L-6
Class A-3..... $59,100,000
A-3L
$59,100,000
A-3L
Class A-4..... $35,500,000
A-4L
$35,500,000
A-4L
Class A-AB.... $71,900,000
A-ABL-1
$34,379,000
A-ABL-1
A-ABL-2
$36,921,000
A-ABL-2
Class A-5A.... $792,716,000
A-5AL-1
$44,756,000
A-5AL-1
A-5AL-2
$30,776,000
A-5AL-2
A-5AL-3
$30,328,000
A-5AL-3
A-5AL-4
$29,180,000
A-5AL-4
A-5AL-5
$66,903,000
A-5AL-5
A-5AL-6 $590,773,000
A-5AL-6
Class A-5B.... $113,246,000
A-5BL
$113,246,000
A-5BL
Class A-1A.... $513,040,000
A-1AL-1
$613,000
A-1AL-1
A-1AL-2
$799,000
A-1AL-2
A-1AL-3
$9,203,000
A-1AL-3
A-1AL-4
$10,645,000
A-1AL-4
A-1AL-5
$10,530,000
A-1AL-5
A-1AL-6
$10,298,000
A-1AL-6
A-1AL-7
$10,132,000
A-1AL-7
A-1AL-8
$9,904,000
A-1AL-8
A-1AL-9
$46,882,000
A-1AL-9
A-1AL-10 $105,169,000
A-1AL-10
A-1AL-11
$6,766,000
A-1AL-11
A-1AL-12
$6,451,000
A-1AL-12
A-1AL-13
$6,264,000
A-1AL-13
A-1AL-14
$8,639,000
A-1AL-14
A-1AL-15 $270,745,000
A-1AL-15
Class X-C..... $2,272,502,889(1)
$2,272,502,889
Class X-P..... $2,221,001,000(1)
$2,221,001,000
Class A-J..... $170,438,000
A-JL
$170,438,000
A-JL
Class B....... $45,450,000
B-L
$45,450,000
B-L
Class C....... $19,884,000
C-L
$19,884,000
C-L
Class D....... $36,928,000
D-L-1
$8,803,000
D-L-1
D-L-2
$28,125,000
D-L-2
Class E....... $28,406,000
E-L-1
$174,000
E-L-1
E-L-2
$12,823,000
E-L-2
E-L-3
$12,358,000
E-L-3
E-L-4
$3,051,000
E-L-4
Class F....... $25,566,000
F-L-1
$12,324,000
F-L-1
F-L-2
$13,242,000
F-L-2
Class G....... $25,565,000
G-L-1
$5,688,000
G-L-1
G-L-2
$16,431,000
G-L-2
G-L-3
$3,446,000
G-L-3
Class H....... $22,706,000
H-L-1
$11,395,000
H-L-1
H-L-2
$11,331,000
H-L-2
Class J....... $14,203,000
J-L-1
$7,976,000
J-L-1
J-L-2
$6,227,000
J-L-2
Class K....... $11,362,000
K-L-1
$1,107,000
K-L-1
K-L-2
$10,255,000
K-L-2
Class L....... $5,681,000
L-L
$5,681,000
L-L
Class M....... $14,203,000
M-L
$14,203,000
M-L
Class N....... $2,840,000
N-L
$2,840,000
N-L
Class O....... $5,681,000
O-L
$5,681,000 O-L
Class P....... $25,567,889
P-L
$25,567,889
P-L
Class R.......
N/A
N/A
N/A
N/A
Class LR......
N/A
N/A
N/A
N/A
------------
(1) Each Class A-1 Certificate
represents ownership of a regular interest in
the
Upper-Tier REMIC. In addition, each Class A-1 Certificate will
be
entitled
to a portion of the Yorktowne Plaza Yield Maintenance Amount,
as
set forth
in Section 4.01(c) from the Grantor Trust (which will not be a
part of
any REMIC Pool).
(2) 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.
(3) 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. In addition,
each
Class X
Certificate will be entitled to a portion of the Yorktowne
Plaza
Yield
Maintenance Amount, as set forth in Section 4.01(c) from the
Grantor
Trust
(which will not be a part of any REMIC Pool).
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 have an aggregate
Stated
Principal Balance equal to approximately
$2,272,502,889.
In consideration of the mutual agreements herein contained, the
Depositor, each Servicer, the Special
Servicer, the Trustee and the other
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article.
"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 applicable
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 such Servicer, the Trustee 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 applicable 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 - Midland or
Collection Account - GMACCM, as applicable,
and if such funds are insufficient
for such reimbursement then from the other
Servicer's respective 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
Accounts 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.
"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 and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "Advance Recovery Report"
available as of the Closing Date on
the CMSA website, is reasonably acceptable
to the applicable Servicer.
"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 Trustee may obtain
and rely on an Officer's Certificate of the
applicable 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 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 Trustee 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
applicable 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 applicable
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
applicable 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
applicable 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 applicable 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 General Motors
Building Mortgage Loan shall be
calculated by the COMM 2005-LP5 Special
Servicer in accordance with and pursuant
to the terms of the COMM 2005-LP5 Pooling
and Servicing Agreement. Any Appraisal
Reduction Amount in respect of the Loews
Universal Hotel Portfolio Mortgage Loan
shall be calculated by the Series
2005-CIBC12 Special Servicer in accordance
with and pursuant to the terms of the
Series 2005-CIBC12 Pooling and Servicing
Agreement.
Any Appraisal Reduction Amount on a Serviced Whole Loan shall
be
deemed allocated, first, to the related B
Loan, if any, and, then, to the
Mortgage Loan and its related pari passu
loan, pro rata, based on each such
loan's Stated Principal Balance.
"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 applicable 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 applicable 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 applicable
Servicer promptly upon the occurrence of
any of the foregoing events with respect to
any Specially Serviced Loan.
"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 applicable 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
Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments
or other receipts on account of
principal and interest (including
Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account
pursuant to Section 3.17(b), but
excluding any Excess Liquidation Proceeds)
on or in respect of the Mortgage
Loans, received by or on behalf of the
applicable Servicer in the Collection
Period relating to such Distribution Date,
(ii) all P&I Advances made by the
applicable Servicer or the Trustee, as
applicable, in respect of the Mortgage
Loans as of such Distribution Date, (iii)
all other amounts received by the
applicable Servicer in such Collection
Period (including the portion of Loss of
Value Payments deposited into its
Collection Account pursuant to Section
3.06(f)) and required to be placed in the
applicable Collection Account by the
applicable Servicer pursuant to Section
3.05, (iv) without duplication, any late
Monthly Payments on or in respect of the
Mortgage Loans received after the end
of the Collection Period relating to such
Distribution Date but prior to the
close of business on the Business Day prior
to the related Servicer Remittance
Date, (v) any Servicer Prepayment Interest
Shortfalls remitted by the applicable
Servicer to its Collection Account and (vi)
with respect to the Distribution
Date in March of each calendar year, the
Withheld Amounts deposited in the
Interest Reserve Account by the Trustee 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 permitted to be used to reimburse the applicable
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;
(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), the
Yorktowne
Plaza Yield Maintenance Amount, 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, which the applicable 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 due
after the related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance
Proceeds
and Net
Condemnation Proceeds with respect to a Mortgage Loan which
represents
any unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, to which the applicable Servicer, any sub-servicer,
Trustee
and/or the
Special Servicer are entitled;
(f) all amounts representing certain fees and expenses,
including
indemnity
amounts, reimbursable or payable to the applicable Servicer,
the
Special
Servicer or the Trustee and other amounts permitted to be
retained
by the
applicable Servicer or withdrawn by such Servicer from its
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
applicable
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
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 Trustee to be
necessary
to pay any
applicable federal, state or local taxes imposed on the
Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to
the extent
described in Section 4.05;
(j) Prepayment Premiums and Yield Maintenance Charges with
respect
to the
Mortgage Loans; and
(k) with respect to the Distribution Date occurring in (A)
January
of each calendar year that is not
a leap year and (B) February of each
calendar
year, in each case, unless such Distribution Date is the final
Distribution Date, the Withheld Amounts deposited in the Interest
Reserve
Account by
the Trustee in accordance with Section 3.05(f).
"B Loan": The Lakewood Center B Loan, the General Motors Building
B
Loan, the Indian Trail Shopping Center B
Loan, the Walker Springs Community
Shopping Center B Loan, the High Point
Center B Loan and/or the
CVS-Eckerds-Kansas City B Loan, all of
which are identified in the preliminary
statement, 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
(or repurchase of the Yorktowne Plaza
Mortgage Loan by the related Mortgage Loan
Seller immediately prior to an early
defeasance of such Mortgage Loan) on any
Mortgage Loan and any of the Class A-1,
Class A-2, Class A-3, Class A-4, Class
A-AB, Class A-5A, Class A-5B, 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 applicable
Servicer) used in calculating the Prepayment
Premium or Yield Maintenance Charge or
Yorktowne Plaza Yield Maintenance Amount,
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 applicable
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 and the applicable Servicer shall
have the right to require, as a condition
to acknowledging the status of any
Person as a Beneficial Owner under this
Agreement, that such Person provide
evidence at its expense of its status as a
Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, 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 either Servicer, Special
Servicer or the Trustee conducts
servicing or trust operations or (iii) a
day on which banking institutions or
savings associations in New York, New York,
or Pittsburgh, Pennsylvania or the
principal cities in which either Servicer,
Special Servicer or the Trustee
conduct servicing or trust operations 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. Each Servicer shall be
permitted to make withdrawals therefrom for
deposit into its 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-4,
Class
A-AB, Class A-5A, Class A-5B, 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 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
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 made
thereon on such prior Distribution
Date.
"Certificate Custodian": Initially, the Trustee; thereafter,
any
other Certificate Custodian acceptable to
the Depository and selected by the
Trustee.
"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, each Servicer,
the
Special
Servicer, the Trustee, 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
each
Servicer or the Special Servicer or an Affiliate thereof shall
be
deemed to
be outstanding, unless such amendment relates to compensation
of
the
applicable Servicer or the Special Servicer or benefits such
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 a Servicer, 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 Trustee or another party hereto
furnishing
such report, statement or information has been provided with
the name
of the Beneficial Owner of the related Certificate or the
Person
identified
as a prospective transferee thereof. For purposes of the
foregoing,
the Depositor, the applicable Servicer, the Special Servicer,
the
Trustee, 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-1 hereto.
"Class A-1
Grantor Trust Interest": That portion of the rights
represented by the Class A-1 Certificates
that evidences beneficial ownership of
25% of the Yorktowne Plaza Yield
Maintenance Amount.
"Class A-1 Pass-Through Rate": A per annum rate equal to
4.7350%.
"Class A-1A 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-8 hereto.
"Class A-1A
Pass-Through Rate": A per annum rate equal to the lesser
of 5.0880% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-1AL-1 Component": One of the 61 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the
Class
X-C Certificates and one of the 55
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 61 Components of the
Class
X-C Certificates and one of the 55
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 61 Components of the
Class
X-C Certificates and one of the 55
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 61 Components of the
Class
X-C Certificates and one of the 55
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 61 Components of the
Class
X-C Certificates and one of the 55
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-1AL-15 Component": One of the 61 Components of the
Class
X-C Certificates and one of the 55
Components of the Class X-P Certificates,
having a Notional Amount equal to the
Lower-Tier Balance of the Class A-1AL-15
Interest.
"Class A-1AL-15 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 61 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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-1L-4 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-4 Interest.
"Class A-1L-4 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed
and
authenticated by the Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to
4.9990%.
"Class A-2L-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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-3 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-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to
5.1440%.
"Class A-3L Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-4 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
lesser
of the Weighted Average Net Mortgage
Pass-Through Rate and 5.1680%.
"Class A-4L Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-4L Interest.
"Class A-4L Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-AB 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-5 hereto.
"Class A-AB Pass-Through Rate": A per annum rate equal to
5.0770%.
"Class A-ABL-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-ABL-1 Interest.
"Class A-ABL-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-ABL-2 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-ABL-2 Interest.
"Class A-ABL-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5 Certificate": Reference in this Agreement to the
Class
A-5 Certificates means the Class A-5A
Certificates and the Class A-5B
Certificates.
"Class A-5A 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-6 hereto.
"Class A-5A Pass-Through Rate": A per annum rate equal to the
lesser
of 5.1160% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-5AL-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-1L-1 Interest.
"Class A-5AL-1 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5AL-2 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5AL-2 Interest.
"Class A-5AL-2 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5AL-3 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5AL-3 Interest.
"Class A-5AL-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5AL-4 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5AL-4 Interest.
"Class A-5AL-4 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5AL-5 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5AL-5 Interest.
"Class A-5AL-5 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5AL-6 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5AL-6 Interest.
"Class A-5AL-6 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class A-5B 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-7 hereto.
"Class A-5B Pass-Through Rate": A per annum rate equal to the
lesser
of 5.1670% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-5BL Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class A-5BL Interest.
"Class A-5BL 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-11 hereto.
"Class A-J Pass-Through Rate": A per annum rate equal to the
lesser
of 5.0880% and the Weighted Average Net
Mortgage Pass-Through Rate.
"Class A-JL Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-12 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate
minus 0.0590%.
"Class B-L Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-13 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate
minus 0.0390%.
"Class C-L Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class D 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-14 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate.
"Class D-L-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-15 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the
Weighted
Average Net Mortgage Pass-Through Rate.
"Class E-L-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-16 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 G 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-17 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 G-L-3 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 Components
of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier
Balance of the Class G-L-3 Interest.
"Class G-L-3 Interest": A regular interest in the Lower-Tier
REMIC
entitled to monthly distributions payable
thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-18 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 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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) 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-19 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class J-L-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-20 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class K-L-1 Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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 61 Components of the Class
X-C
Certificates and one of the 55 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-21 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class L-L Component": One of the 61 Components of the Class
X-C
Certificates and one of the 55 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-27 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-22 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class M-L Component": One of the 61 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class N 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-23 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class N-L Component": One of the 61 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class O 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-24 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class O-L Component": One of the 61 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 monthly distributions payable
thereto pursuant to Section 4.01.
"Class P 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-25 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser
of
4.8840% per annum and the Weighted Average
Net Mortgage Pass-Through Rate.
"Class P-L Component": One of the 61 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 R 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-26 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-9 hereto.
"Class X-C Grantor Trust Interest": That portion of the rights
represented by the Class X-C Certificates
that evidences beneficial ownership of
50% of the Yorktowne Plaza Yield
Maintenance Amount.
"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 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 B-L Component and the
Class C-L Component, the sum of the
(I) the Class X-P Fixed Strip Rate and (II)
the Pass-Through Rate for the Class
B Certificates (with respect to the
Corresponding Component of the Class B
Certificates) and C Certificates (with
respect to the Corresponding Component of
the Class C 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 Trustee or the
Authenticating Agent on behalf of the
Depositor in substantially the form set
forth in Exhibit A-10 hereto.
"Class X-P Component": Each of the Class A-1L-2 Component, the
Class
A-1L-3 Component, the Class A-1L-4
Component, the Class A-2L-1 Component, the
Class A-2L-2 Component, the Class A-2L-3
Component, the Class A-2L-4 Component,
the Class A-2L-5 Component, the Class
A-2L-6 Component, the Class A-3L
Component, the Class A-4L Component, the
Class A-ABL-1 Component, the Class
A-ABL-2 Component, the Class A-5AL-1
Component, the Class A-5AL-2 Component, the
Class A-5AL-3 Component, the Class A-5AL-4
Component, the Class A-5AL-5
Component, the Class A-5AL-6 Component, the
Class A-5BL 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-1AL-15
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 G-L-1
Component, the Class G-L-2 Component, the
Class G-L-3 Component, the Class H-L-1
Component, the Class H-L-2 Component, the
Class J-L-1 Component, the Class J-L-2
Component, the Class K-L-1 Component, the
Class K-L-2 Component and the Class
L-L Component.
"Class X-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:
Component
Cross-Over Date
----------------------------------------------------------------
---------------
(1) Class A-1L-2 Component and Class
A-1AL-2 Component........ February 2006
(2) Class A-1L-3 Component, Class A-2L-1
Component and Class
A-1AL-3
Component........................................... August 2006
(3) Class A-1L-4 Component, Class A-2L-2
Component and Class
A-1AL-4
Component........................................... February 2007
(4) Class A-1AL-5 Component, Class A-2L-3
Component, Class
K-L-1 Component and Class L-L
Component..................... August 2007
(5) Class A-1AL-6 Component, Class A-2L-4
Component, Class
J-L-1 Component and Class K-L-2
Component................... February 2008
(6) Class A-1AL-7 Component, Class A-2L-5
Component, Class
H-L-1 Component and Class J-L-2
Component................... August 2008
(7) Class A-1AL-8 Component, Class A-2L-6
Component, Class A-3L
Component, Class A-4L Component,
Class G-L-1 Component and
Class H-L-2
Component....................................... February 2009
(8) Class A-1AL-9 Component, Class A-ABL-1
Component and Class
G-L-2
Component............................................. August 2009
(9) Class A-1AL-10 Component, Class A-5AL-1
Component, Class A-ABL-1 Component,
Class F-L-1 Component and Class
G-L-3
Component...................................................
February
2010
(10) Class A-1AL-11 Component, Class
A-5AL-2 Component, Class
E-L-1 Component and Class F-L-2
Component................... August 2010
(11) Class A-1AL-12 Component, Class
A-5AL-3 Component and
Class E-L-2
Component....................................... February 2011
(12) Class A-1AL-13 Component, Class
A-5AL-4 Component and
Class E-L-3
Component....................................... August 2011
(13) Class A-1AL-14 Component, Class
A-5AL-5 Component, Class
D-L-1 Component and Class E-L-4
Component................... February 2012
(14) Class A-1AL-15 Component, Class
A-5AL-6 Component, Class
A-5BL Component, Class A-JL
Component, Class B-L Component,
Class C-L Component and Class
D-L-2 Component............... August 2012
"Class X-P Fixed Strip Rate": A per annum rate equal to (i)
0.0590%,
with respect to the Corresponding
Components relating to the Class B
Certificates and (ii) 0.0390%, with respect
to the Corresponding Components
relating to the Class C Certificates.
"Class X-P Grantor Trust Interest": That portion of the rights
represented by the Class X-P Certificates
that evidences beneficial ownership of
25% of the Yorktowne Plaza Yield
Maintenance Amount.
"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 August 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 B-L
Component and the Class C-L 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": August 19, 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 applicable Servicer and reasonably
acceptable to the Trustee, 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
Trustee.
"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 Trustee.
"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 applicable 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 applicable
Servicer or the Special Servicer, as
applicable, and the Trustee 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 applicable Servicer or the Special
Servicer, as applicable, and the
Trustee.
"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
applicable 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 applicable Servicer, Special
Servicer
and the
Trustee 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 Lakewood Center
Whole
Loan, the Lakewood Center Agreement Among
Noteholders, (ii) 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, (iii) with respect to the
Loews Universal Hotel Portfolio Whole
Loan, the Loews Universal Hotel Portfolio
Agreement Among Noteholders, and (iv)
with respect to each PNC/Mezz Cap Whole
Loan, the related PNC/Mezz Cap
Intercreditor Agreement, in each case, as
applicable and as the context may
require.
"Collection Account-GMACCM": The trust account or accounts
created
and maintained by the GMACCM Servicer
pursuant to Section 3.05(a), which shall
be entitled "GMAC Commercial Mortgage
Corporation, for the benefit of Wells
Fargo Bank, N.A., as Trustee, in trust for
Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2005-C6
Commercial Mortgage Pass-Through
Certificates, GMACCM Collection Account"
and which must be an Eligible Account.
"Collection Account-Midland": The trust account or accounts
created
and maintained by the Midland 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-C6 Commercial
Mortgage Pass-Through Certificates, Midland
Collection Account" and which must be an
Eligible Account.
"Collection Account": Collectively the Collection Account -
Midland
and the Collection Account - GMACCM.
"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 September 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.
"COMM 2005-LP5 Pooling and Servicing Agreement": As defined in
the
preliminary statement.
"COMM 2005-LP5 Servicer": As defined in the preliminary
statement.
"COMM 2005-LP5 Special Servicer": As defined in the preliminary
statement.
"COMM 2005-LP5 Trustee": As defined in the preliminary
statement.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Any of the B Loans or the Pari Passu Loans,
as
applicable and 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 applicable
Servicer or the Special Servicer, as
applicable.
"Component": Each of the Class A-1L-1 Component, the Class
A-1L-2
Component, the Class A-1L-3 Component, the
Class A-1L-4 Component, the Class
A-2L-1 Component, the Class A-2L-2
Component, the Class A-2L-3 Component, the
Class A-2L-4 Component, the Class A-2L-5
Component, the Class A-2L-6 Component,
the Class A-3L Component, the Class A-4L
Component, the Class A-ABL-1 Component,
the Class A-ABL-2 Component, the Class
A-5AL-1 Component, the Class A-5AL-2
Component, the Class A-5AL-3 Component, the
Class A-5AL-4 Component, the Class
A-5AL-5 Component, the Class A-5AL-6
Component, the Class A-5BL 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-1AL-15
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 G-L-1
Component, the Class G-L-2 Component, the
Class G-L-3 Component, the Class H-L-1
Component, the Class H-L-2 Component, the
Class J-L-1 Component, the Class J-L-2
Component, the Class K-L-1 Component, the
Class K-L-2 Component, 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-4, Class A-AB,
Class A-5A, Class A-5B 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 Trustee 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 Trustee
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 Trustee 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 Trustee as to
its status as Controlling Class
Representative upon which the Trustee shall
use its best efforts to verify such
status. Hyperion Capital Management, Inc.
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, COMM 2005-C6, 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-4, Class
A-AB, Class A-5A, Class A-5B 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 applicable Servicer or any
Affiliate of the Trustee or such 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 August 1, 2005 or the
origination date of such Mortgage Loan
or Serviced Whole Loan.
"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 applicable 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 applicable 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 Lakewood Center Mortgage
Loan, (a) prior to a Lakewood Center
Control Appraisal Event, the holder of the
Lakewood Center B Loan and (b) so
long as a Lakewood Center Control Appraisal
Event exists, the Controlling Class
Representative; and (iii) with respect to
the PNC/Mezz Cap Whole Loans, (a) as
to certain matters set forth in Section
3.34 herein and as provided in the
related PNC/Mezz Cap Intercreditor
Agreements as to which the related PNC/Mezz
Cap B Loan Noteholder is entitled to
consent or approve, the related PNC/Mezz
Cap B Loan Noteholder and (b) as to all
other matters, the Controlling Class
Representative.
"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 September 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 "A-1" by S&P and
"P-1" by Moody's, in the case of accounts
in which funds are held for 30 days or
less or, in the case of accounts in which
funds are held for more than 30 days,
the long term unsecured debt obligations of
which are rated at least "AA" by S&P
and "Aa3" by Moody's, or (B) as to which
the Trustee 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,
(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), 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, which
may be an account maintained with
the Trustee or the applicable 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 "A1" from Moody's
and "A" from S&P (if the deposits are
to be held in the account for more than 30
days) or (B) PNC's short-term deposit
or short-term unsecured debt rating shall
be at least "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). 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
applicable
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 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 Trustee 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-C6
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 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.
"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
applicable 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
Trustee and the Custodian (and the
applicable Servicer, if the certificate is
from the Special Servicer), expects
to be finally recoverable. Each Servicer
shall maintain records, prepared by a
Servicing Officer, of each Final Recovery
Determination until the earlier of (i)
its termination as such 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.
"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/GMAC Commercial Holding Indemnification Agreement": The
agreement dated as of August 19, 2005 from
GACC to GMAC Commercial Holding.
"GACC Indemnification Agreement": The agreement dated as of
August
19, 2005 from GACC to the Depositor and the
Underwriters but excluding GMAC
Commercial Holding.
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement
dated and effective the Closing Date,
between GACC and the Depositor.
"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 Co-Lender Agreement": Collectively,
the
General Motors Building A Notes
Intercreditor Agreement and the General Motors
Building Agreement Among Noteholders.
"General Motors Building Mortgage Loan": As defined in the
preliminary statement herein.
"General Motors Building Nonrecoverable Servicing Advance": Any
"Nonrecoverable Servicing Advance" (as
defined in the COMM 2005-LP5 Pooling and
Servicing Agreement) made with respect to
the General Motors Building Mortgage
Loan pursuant to and in accordance with the
COMM 2005-LP5 Pooling and Servicing
Agreement.
"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.
"General Servicing Standard": For so long as the Servicer or
the
Special Servicer is not GMAC Commercial
Mortgage Corporation such party is
required to service and administer the
Mortgage Loans that it is servicing
(other than the Non-Serviced Mortgage
Loans) and the Serviced Whole Loans, in
the best interests of and for the benefit
of the Certificateholders and, with
respect to each Serviced Whole Loan, for
the benefit of the holder of the
related Serviced Companion Loan (as a
collective whole, but giving due
consideration to the subordinate nature of
the related B Loan as determined by
such Servicer in the exercise of its
reasonable judgment) in accordance with
applicable law, the terms of this
Agreement, the terms of the related
intercreditor agreement, as applicable, and
the terms of the Mortgage Loans or
Serviced Whole Loans, as applicable, and,
to the extent consistent with the
foregoing, in accordance with the higher of
the following standards of care:
(i) the same manner in which, and with the same care, skill,
prudence and diligence with which such Servicer services and
administers similar mortgage loans for other third-party
portfolios,
giving due consideration to the customary and usual standards
of
practice of prudent institutional commercial and multifamily
mortgage loan servicers servicing mortgage loans for other
third
party portfolios or securitization trusts with a view to the
maximization of timely recovery of principal and interest on a
net
present value basis on the Mortgage Loans, and the best interests
of
the Trust and the Certificateholders and, with respect to any
Serviced Whole Loan, the holder of the related Serviced
Companion
Loan (as a collective whole, but giving due consideration to
the
subordinate nature of the related B Loan as determined by such
Servicer, in its reasonable judgment); and
(ii) the same care, skill, prudence and diligence with which
such Servicer services and administers commercial and
multifamily
mortgage loans owned, if any, by such Servicer with a view to
the
maximization of timely recovery of principal and interest on a
net
present value basis on the Mortgage Loans, and the best interests
of
the Trust and the Certificateholders and, with respect to any
Serviced Whole Loan, the holder of the related Serviced
Companion
Loan (as a
collective whole, but giving due consideration to the
subordinate nature of the related B Loan, as determined by such
Servicer in its reasonable judgment),
but without regard to (a) any relationship
that such Servicer or any affiliate
of it, may have with the related borrower,
any Mortgage Loan Seller, any other
party to this Agreement or any affiliate of
the foregoing; (b) the ownership of
any Certificate, any Non-Serviced Mortgage
Loan or any Serviced Companion Loan
by such Servicer or any affiliate of the
it; (c) such Servicer's obligation to
make Advances; (d) such Servicer's right to
receive compensation for its
services hereunder or with respect to any
particular transaction; (e) the
ownership, servicing or management for
others of any other mortgage loans or
mortgaged properties by such Servicer or
any affiliate of such Servicer, as
applicable; and (f) any debt that such
Servicer or any affiliate of such
Servicer, as applicable, has extended to
any borrower or an affiliate of any
borrower (including, without limitation,
any mezzanine financing).
"Global Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-4, Class A-AB, Class A-5A, Class A-5B,
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
and Class P 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 Trustee 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-C6
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.
"GMAC Commercial Holding": GMAC Commercial Holding Capital
Markets
Corp.
"GMACCM": GMAC Commercial Mortgage Corporation, in its capacity as
a
Mortgage Loan Seller, and its
successors.
"GMACCM Indemnification Agreement": The agreement dated as of
August
19, 2005 from GMACCM to the Depositor and
the Underwriters.
"GMACCM Purchase Agreement": The Mortgage Loan Purchase
Agreement,
dated and effective the Closing Date,
between GMACCM and the Depositor.
"GMACCM Servicing Standard": With respect to each Mortgage
Loan,
Serviced Whole Loan or Specially Serviced
Loan, as applicable, for which GMAC
Commercial Mortgage Corporation is the
Servicer or the Special Servicer, as
applicable, GMAC Commercial Mortgage
Corporation is required to service and
administer such Mortgage Loans or Serviced
Whole Loans, as applicable (other
than the Non Serviced Mortgage Loans), or
Specially Serviced Loans, as
applicable, on behalf of the Trust in the
best interests of and for the benefit
of all of the Certificateholders and
Serviced Companion Loan Holders, if
applicable (as determined by GMAC
Commercial Mortgage Corporation in its good
faith and reasonable judgment), but giving
due consideration to the subordinate
nature of the related B Loan, if any, in
accordance with applicable law, the
terms of this Agreement and the terms of
the respective Mortgage Loans Documents
and to the extent not inconsistent with the
foregoing, further as follows:
(i) with the same care, skill and diligence as is normal and
usual by GMAC Commercial Mortgage Corporation in its mortgage
servicing on behalf of third parties or on behalf of itself,
whichever is higher, with respect to mortgage loans that are
comparable to those for which it is responsible under this
Agreement;
(ii) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans or
if
the Mortgage Loan or Serviced Whole Loan comes into and continues
in
default and in the good faith reasonable judgment of the
Special
Servicer, no satisfactory arrangements can be made for the
collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a
collective whole) and, with respect to any Serviced Whole Loan,
the
holder of the related Serviced Companion Loan (as a collective
whole
but giving due consideration to the subordinate nature of the
related B Loan, as determined by the Special Servicer in its
reasonable judgment) on a present value basis (the relevant
discounting of anticipated collections that will be distributable
to
Certificateholders to be performed at the related net Mortgage
Rate); and
(iii) without regard to (a) any relationship that GMAC
Commercial Mortgage Corporation or any affiliate thereof may
have
with the related borrower; (b) the ownership of any Certificate
by
GMAC Commercial Mortgage Corporation, or by any affiliate
thereof;
(c) the GMACCM Servicer's obligation to make Advances; and (d)
the
right of GMAC Commercial Mortgage Corporation (or any affiliate
thereof) to receive reimbursement of costs, or the sufficiency
of
any compensation payable to it, pursuant to this Agreement or
with
respect to any particular transaction.
"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.
"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 applicable 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 applicable 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.
"Indemnification Agreements": Each of the GACC Indemnification
Agreement, GACC/GMAC Commercial Holding
Indemnification Agreement, PNC Bank
Indemnification Agreement, PNC Bank/GMAC
Commercial Holding Indemnification
Agreement and GMACCM Indemnification
Agreement.
"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
applicable 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 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 applicable Servicer or the
Special Servicer, as applicable, and the
Trustee has been delivered to the
Trustee to that effect) or (ii) any other
Person (including the applicable
Servicer and the Special Servicer) if such
Servicer or the Special Servicer, as
applicable, on behalf of itself and the
Trustee has received an Opinion of
Counsel (at the expense of the party
seeking to be deemed an Independent
Contractor) to the effect that the taking
of any action in respect of any REO
Property by such Person, subject to any
conditions therein specified, that is
otherwise herein contemplated to be taken
by an Independent Contractor will not
cause such REO Property to cease to qualify
as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code
(determined without regard to the
exception applicable for purposes of
Section 860D(a) of the Code) or cause any
income realized in respect of such REO
Property to fail to qualify as Rents from
Real Property (provided that such income
would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest
coupons.
"Initial Purchaser": DBS and its respective successor in
interest.
"Initial Resolution Period": As defined in Section 2.03(d).
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (2), (3) or
(7) of Regulation D promulgated
under the Act, or an entity in which all
the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance
policy relating to a Mortgage Loan or
Serviced Whole Loan (including any amounts
paid by the applicable Servicer
pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date
and
any Class of Certificates (other than the
Class R and Class LR Certificates), an
amount equal to interest for the related
Interest Accrual Period at the
Pass-Through Rate for such Class on the
related Certificate Balance or Notional
Balance, as applicable, outstanding
immediately prior to such Distribution Date
minus the amount of any Excess Prepayment
Interest Shortfall allocated to such
Class with respect to such Distribution
Date. Calculations of interest due in
respect of the Certificates shall be made
on the basis of a 360-day year
consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution
Date,
the calendar month immediately preceding
the month in which such Distribution
Date occurs.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the
Trustee 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-C6
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 applicable Servicer, Special Servicer,
the Trustee, 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 the Trustee to be an
Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Lakewood Center Agreement Among Noteholders": That certain
intercreditor agreement among note holders,
dated as of June 30, 2005 by and
between German American Capital
Corporation, as the Note A-1 and Note A-2 Holder
and Teachers Insurance and Annuity
Association of America, as the Note B Holder,
as from time to time amended, supplemented
or modified.
"Lakewood Center B Loan": As defined in the preliminary
statement.
"Lakewood Center B Loan Noteholder": The holder of the Note for
the
Lakewood Center B Loan.
"Lakewood Center Control Appraisal Event": With respect to the
Lakewood Center Whole Loan, a Lakewood
Center Control Appraisal Event shall be
deemed to have occurred and be continuing
if (i) the initial principal balance
of the Lakewood Center B Loan, as reduced
by any payments of principal (whether
as scheduled amortization, principal
prepayments or otherwise) allocated to the
Lakewood Center B Loan and any appraisal
reduction amounts and realized losses
allocated to the Lakewood Center B Loan, is
less than 25% of the initial
principal balance of the Lakewood Center B
Loan, as reduced by any payments of
principal (whether as scheduled
amortization, principal prepayments or otherwise
allocated to the Lakewood Center B Loan) or
(ii) the holder of the Lakewood
Center B Loan is an affiliate of the
related borrower.
"Lakewood Center Mortgage Loan": As defined in the preliminary
statement herein.
"Lakewood Center Whole Loan": As defined in the preliminary
statement herein.
"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 applicable Servicer, the Special
Servicer and the Trustee 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 obtains a full,
partial or discounted payoff 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. In
addition, with respect to the Yorktowne
Plaza Mortgage Loan, if GMACCM fails to
repurchase the Yorktowne Plaza Mortgage
Loan in connection with the related
Borrower defeasing such Mortgage Loan prior
to July 27, 2007, as required under
Section 2.03, and the Special Servicer
sells such Mortgage Loan from the Trust
Fund in order to effect a "qualified
liquidation" of the Loan REMIC related to
the Yorktowne Plaza Mortgage Loan in
accordance with Section 2.03, the Special
Servicer shall be entitled to a Liquidation
Fee (calculated on the amount
received by the Special Servicer in
connection with such liquidation) with
respect to such liquidation together with
any actual costs and expenses
(including reasonable attorney's fees)
incurred by the Special Servicer in
connection with (1) effecting such
liquidation and (2) enforcement of its right
to payment of such Liquidation Fee from the
related Mortgage Loan Seller. Such
fee shall be paid by the related Mortgage
Loan Seller.
"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
applicable 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
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); (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 applicable 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 Lakewood
Center Mortgage Loan, the General
Motors Building Mortgage Loan and the Loews
Universal Hotel Portfolio Mortgage
Loan, or the applicable PNC/Mezz Cap
Mortgage Loan, if any, the purchase of such
Mortgage Loan by the holder of the related
B Loan, or the applicable designee,
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
applicable 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 applicable Servicer or the Special
Servicer, as applicable.
"Loan Number": With respect to any Mortgage Loan, the loan number
by
which such Mortgage Loan was identified on
the books and records of the
Depositor or any sub-servicer for the
Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan REMIC": The REMIC created by the Loan REMIC Declaration
dated
July 27, 2005 that is constituted by the
Yorktowne Plaza Mortgage Loan, proceeds
thereof, any related REO Property and
amounts with respect thereto held in the
applicable Collection Account.
"Loan REMIC Balance": With respect to the Loan REMIC Regular
Interest, as of the Cut-off Date, an amount
equal to $21,728,658 and from time
to time, an amount equal to such amount
reduced by the amount of principal
distributions thereon and Realized Losses
allocable thereto in all prior periods
as described in Section 4.01(j) hereof.
"Loan REMIC Declaration": That certain REMIC Declaration dated as
of
July 27, 2005 with respect to the Yorktowne
Plaza Mortgage Loan as described in
the preliminary statement herein.
"Loan REMIC Interests": The Loan REMIC Regular Interest and the
Loan
REMIC Residual Interest.
"Loan REMIC Loan": The Yorktowne Plaza Mortgage Loan.
"Loan REMIC Regular Interest": A 100% undivided interest in the
uncertificated "regular interest," within
the meaning of Code Section
860G(a)(1), in the Loan REMIC. The
principal balance of the Loan REMIC Regular
Interest shall equal the outstanding Stated
Principal Balance of the Yorktowne
Plaza Mortgage Loan (or, if applicable, the
deemed Stated Principal Balance of
any successor REO Loan). Payments of
principal, interest and prepayment premiums
(but not the Yorktowne Plaza Yield
Maintenance Amount) received on or in respect
of the Yorktowne Plaza Mortgage Loan (or
any beneficial interest in any related
Mortgaged Property) shall be deemed
distributable on the Loan REMIC Regular
Interest, and other collections of amounts
received on or in respect of the
Yorktowne Plaza Mortgage Loan shall be
deemed distributable to the Trust Fund
other than on the Loan REMIC Regular
Interest.
"Loan REMIC Residual Interest": A 100% interest in the sole class
of
"residual interest," within the meaning of
Code Section 860G(a)(2), in the Loan
REMIC. The Loan REMIC Residual Interest
shall be beneficially owned by the
Holders of the Class LR Certificates and
represented by the Class LR
Certificates.
"Loan REMIC Startup Day": In the case of the Loan REMIC, the
startup
day designated in the Loan REMIC
Declaration, which is July 27, 2005.
"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 applicable
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 Universal Hotel Portfolio Agreement Among Noteholders":
With
respect to the Loews Universal Hotel
Portfolio Mortgage Loan, the Loews
Universal Hotel Portfolio Pari Passu Loans
and the Loews Universal Hotel
Portfolio B Loans that certain
intercreditor agreement, dated as of July 29,
2005, by and among the initial holder of
the Loews Universal Hotel Portfolio
Mortgage Loan, the initial holders of the
Loews Universal Hotel Portfolio Pari
Passu Loans and the Loews Universal Hotel
Portfolio B Loans, as from time to
time amended, supplemented or modified.
"Loews Universal Hotel Portfolio B Loan": As defined in the
preliminary statement herein.
"Loews Universal Hotel Portfolio Mortgage Loan": As defined in
the
preliminary statement herein.
"Loews Universal Hotel Portfolio Nonrecoverable Advance": Any
"Nonrecoverable Servicing Advance" (as
defined in the Series 2005-CIBC12 Pooling
and Servicing Agreement) made with respect
to the Loews Universal Hotel
Portfolio Mortgage Loan pursuant to and in
accordance with the Series
2005-CIBC12 Pooling and Servicing
Agreement.
"Loews Universal Hotel Portfolio Pari Passu Loan Noteholders":
The
holders of the Notes for the Loews
Universal Hotel Portfolio Pari Passu Loans.
"Loews Universal Hotel Portfolio Pari Passu Loans": As defined
in
the preliminary statement herein.
"Loews Universal Hotel Portfolio Service Providers": With respect
to
each Loews Universal Hotel Portfolio 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 Universal Hotel Portfolio 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
Trustee 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-C6
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": As defined in Section
4.01(a)(ii).
"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 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.
"Lower-Tier Regular Interests": The Class A-1L-1 Interest, the
Class
A-1L-2 Interest, the Class A-1L-3 Interest,
the Class A-1L-4 Interest, the Class
A-2L-1 Interest, the Class A-2L-2 Interest,
the Class A-2L-3 Interest, the Class
A-2L-4 Interest, the Class A-2L-5 Interest,
the Class A-2L-6 Interest, the Class
A-3L Interest, the Class A-4L Interest, the
Class A-ABL-1 Interest, the Class
A-ABL-2 Interest, the Class A-5AL-1
Interest, the Class A-5AL-2 Interest, the
Class A-5AL-3 Interest, the Class A-5AL-4
Interest, the Class A-5AL-5 Interest,
the Class A-5AL-6 Interest, the Class A-5BL
Interest, the Class A-1AL-1
Interest, the Class A-1AL-2 Interest, the
Class A-1AL-3 Interest, the Class
A-1AL-4 Interest, the Class A-1AL-5
Interest, the Class A-1AL-6 Interest, the
Class A-1AL-7 Interest, the Class A-1AL-8
Interest, the Class A-1AL-9 Interest,
the Class A-1AL-10 Interest, the Class
A-1AL-11 Interest, the Class A-1AL-12
Interest, the Class A-1AL-13 Interest, the
Class A-1AL-14 Interest, the Class
A-1AL-15 Interest, the Class A-JL Interest,
the Class B-L Interest, the Class
C-L Interest, the Class D-L-1 Interest, the
Class D-L-2 Interest, the Class
E-L-1 Interest, the Class E-L-2 Interest,
the Class E-L-3 Interest, the Class
E-L-4 Interest, the Class F-L-1 Interest,
the Class F-L-2 Interest, the Class
G-L-1 Interest, the Class G-L-2 Interest,
the Class G-L-3 Interest, the Class
H-L-1 Interest, the Class H-L-2 Interest,
the Class J-L-1 Interest, the Class
J-L-2 Interest, the Class K-L-1 Interest,
the Class K-L-2 Interest, the Class
L-L Interest, the Class M-L Interest, the
Class N-L Interest, the Class O-L
Interest and the Class P-L Interest, 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, and Class X-P 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) has a Pass-Through Rate
equal to the Weighted Average Net Mortgage
Pass-Through Rate, (v) has a "latest
possible maturity date," within the meaning
of Treasury Regulations Section
1.860G-1(a), that is the Rated Final
Distribution Date and (vi) is entitled to
the distributions in the amounts and at the
times specified in Section
4.01(a)(ii) and Section 4.01(c).
"Lower-Tier REMIC": A segregated asset pool within the Trust
Fund
consisting of the Mortgage Loans (exclusive
of the Yorktowne Plaza Mortgage
Loan), the Loan REMIC Regular Interest,
collections thereon, the Trust's
interest in any REO Property acquired in
respect thereof (and, in the event that
the General Motors Building Whole Loan or
the Loews Universal Hotel Portfolio
Whole Loan becomes an "REO Property" under
the COMM 2005-LP5 Pooling and
Servicing Agreement or the Series
2005-CIBC12 Pooling and Servicing Agreement,
respectively, as the case may be, a
beneficial interest in the applicable
portion of such "REO Property"), amounts
held from time to time in the
applicable 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.
"Majority Mortgage Loan": Any Mortgage Loan other than the
Yorktowne
Plaza Mortgage Loan.
"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, but
excluding any Serviced B Loans 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
as of the Due Date in the immediately
preceding Collection Period (without
giving effect to payments of principal on
such Mortgage Loan on such Due Date).
For the avoidance of doubt, with respect to
any B Loan, no Master Servicing Fee
shall accrue on the Stated Principal
Balance thereof.
"Master Servicing Fee Rate": With respect to each Mortgage 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. 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(a)(i) through (xx) pertaining to such
particular Mortgage Loan or Serviced
Companion Loan and any additional documents
required to be added to such
Mortgage File pursuant to the express
provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust
Fund. The mortgage loans originally so
transferred, assigned and held are
identified on the Mortgage Loan Schedule as
of the Closing Date. Such term shall
include any REO Loan, Specially Serviced
Loan or any Mortgage Loan that has been
defeased in whole or in part. Such term
shall not include the Serviced Companion
Loans but shall include the Serviced
Mortgage Loans.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the GMACCM 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 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) [Reserved];
(j) the Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(l) whether such Mortgage Loan has a hard lock-box, a springing
hard
lock-box,
a soft-at-closing, springing hard lock-box or no lock-box at
all;
(m) identifying any Mortgage Loans with which any such Mortgage
Loans are
cross-collateralized;
(n) the applicable Loan Group to which such Mortgage Loan
belongs;
and
(o) 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, GMACCM and PNC Bank.
"Mortgage Pool": All of the Mortgage Loans and any successor
REO
Loans, collectively. The Mortgage Pool does
not include the Serviced Companion
Loans, or any related REO Loans.
"Mortgaged Property": The underlying property securing a
Mortgage
Loan including any REO Property, consisting
of a fee simple estate, and, with
respect to certain Mortgage Loans, a
leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold
estate in a portion of the property and
a fee simple estate in the remainder, in a
parcel of land improved by a
commercial property, together with any
personal property, fixtures, leases and
other property or rights pertaining
thereto.
"Mortgage Rate": With respect to each Mortgage Loan, 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 (and
the rate of the Loan REMIC Regular Interest
in the case of the Yorktowne Plaza
Mortgage Loan) shall be the Mortgage Rate
of such Mortgage Loan or Serviced
Companion Loan without giving effect to any
Default Rate and without taking into
account any reduction in the interest rate
by a bankruptcy court pursuant to a
plan of reorganization or pursuant to any
of its equitable powers or a reduction
in interest or principal due to a
modification pursuant to Section 3.31, 3.32,
3.33 or 3.34 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
applicable 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 General Motors Building
Mortgage Loan and the Loews Universal Hotel
Portfolio 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
applicable 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
Lakewood Center Loan and 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 that the
applicable Servicer is servicing exceeds
the aggregate of all Prepayment
Interest Shortfalls for such Mortgage Loans
as of any Distribution Date.
"Net Prepayment Interest Shortfall": With respect to the
Mortgage
Loans that the applicable Servicer is
servicing, the aggregate Prepayment
Interest Shortfalls on such Mortgage Loans
in excess of the Servicer Prepayment
Interest Shortfall on such Mortgage
Loans.
"Net REO Proceeds": With respect to each REO Property, REO
Proceeds
with respect to such REO Property net of
any insurance premiums, taxes,
assessments and other costs and expenses
permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of
the
Loan REMIC, if applicable, or the
Lower-Tier REMIC if such REMIC has the right
to renegotiate the terms of such lease,
including any lease renewed or extended
on behalf of 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
applicable Servicer or the Special
Servicer, as applicable.
"Non-Serviced Mortgage Loan": Each of the General Motors
Building
Mortgage Loan and the Loews Universal Hotel
Portfolio Mortgage Loan, as the
context may require.
"Non-Serviced Mortgage Loan Service Providers": The General
Motors
Building Service Providers and the Loews
Universal Hotel Portfolio Service
Providers, as the context may require.
"Non-Serviced Whole Loans": Each of the General Motors Building
Whole Loan and the Loews Universal Hotel
Portfolio 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
General Motors Building Nonrecoverable
Advance and (c) any Loews Universal Hotel
Portfolio 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 applicable
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 the
Serviced Whole Loan or any REO Property
that, in the reasonable judgment of the
applicable 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 (i)
the General Motors Building Whole Loan
shall be made by the COMM 2005-LP5 Servicer
or any other party making such
determination, pursuant to the COMM
2005-LP5 Pooling and Servicing Agreement or
(ii) the Loews Universal Hotel Portfolio
Whole Loan shall be made by the Series
2005-CIBC12 Servicer or any other party
making such determination, pursuant to
the Series 2005-CIBC12 Pooling and
Servicing Agreement. Any such determination
made by the COMM 2005-LP5 Servicer or the
Series 2005-CIBC12 Servicer,
respectively, shall be conclusive and
binding on the Certificateholders and may,
in all cases, be conclusively relied upon
by the applicable 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
and
the applicable Servicer by the
Certificateholder owning a majority of the
Percentage Interests in the Controlling
Class, the Special Servicer or the
applicable 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
applicable 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 Special Servicer or the applicable
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 applicable
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 applicable
Servicer, as the case may be, acceptable to
the Trustee, except that any opinion
of counsel relating to (a) qualification of
the Loan REMIC, 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 applicable Servicer or
the Special Servicer pursuant to
Section 6.04, must be an opinion of counsel
who is Independent of the Depositor
and such 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 COMM 2005-LP5
Pooling
and Servicing Agreement and/or the Series
2005-CIBC12 Pooling and Servicing
Agreement, as from time to time amended,
supplemented or modified, as applicable
and as the context may require.
"Other Servicer": With respect to the related Other Pooling and
Servicing Agreement, the related master
servicer thereunder.
"Other Special Servicer": With respect to the related Other
Pooling
and Servicing Agreement, the related
special servicer thereunder.
"Other Trustee": With respect to the related 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
applicable 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.
"Pari Passu Loans" Any of the General Motors Building Pari
Passu
Loans and/or the Loews Universal Hotel
Portfolio Pari Passu Loans, as applicable
and as the context may require.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class R and Class LR
Certificates), the Pass-Through Rate for
such Class as set forth below:
Class
Pass-Through Rate
-----------------
-----------------------------
Class A-1........ Class A-1 Pass-Through
Rate
Class A-2........ Class A-2 Pass-Through Rate
Class A-3........ Class A-3 Pass-Through
Rate
Class A-4........ Class A-4 Pass-Through
Rate
Class A-AB....... Class A-AB Pass-Through
Rate
Class A-5A....... Class A-5A Pass-Through
Rate
Class A-5B....... Class A-5B 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
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through
Rate.
"Paying Agent": The paying agent appointed pursuant to Section
5.04.
"Penalty Charges": With respect to any Mortgage Loan or
Serviced
Companion Loan (or successor REO Loan), any
amounts collected thereon that
represent late payment charges or Default
Interest, other than a Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions
required to be made with respect to
the related Class. With respect to any
Certificate (except the Class R and Class
LR Certificates), the percentage interest
is equal to the initial denomination
of such Certificate divided by the initial
Certificate Balance or Notional
Balance, as applicable, of such Class of
Certificates. With respect to any Class
R or Class LR Certificate, the percentage
interest is set forth on the face
thereof.
"Performing Loan": A Mortgage Loan or 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 applicable
Servicer, the Special Servicer, the Trustee
or any of its respective Affiliates
and having at all times the required
ratings, if any, provided for in this
definition, unless each Rating Agency shall
have confirmed in writing to such
Servicer that a lower rating would not, in
and of itself, result in a downgrade,
qualification or withdrawal of the
then-current ratings assigned to the
Certificates:
(a) direct obligations of, or obligations fully guaranteed as
to
payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the
full
faith and
credit of the United States of America including, without
limitation, obligations of the U.S. Treasury (all direct or
fully
guaranteed
obligations), the Farmers Home Administration (certificates of
beneficial
ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title
XI
financing), the Small Business Administration (guaranteed
participation
certificates and guaranteed pool certificates), the U.S. Department
of
Housing
and Urban Development (local authority bonds) and the
Washington
Metropolitan Area Transit Authority (guaranteed transit bonds);
provided,
however,
that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity,
which
cannot
vary or change, (B) if bearing a variable rate of interest,
have
its
interest rate tied to a single interest rate index plus a fixed
spread
(if any)
and move proportionately with that index, and (C) not be
subject
to
liquidation prior to its maturity;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government
sponsored
agencies:
Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit
System (consolidated systemwide bonds and notes), the Federal
Home
Loan Banks
(consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing
Association
(debt
obligations), the Financing Corp. (debt obligations), and the
Resolution
Funding Corp. (debt obligations); provided, however, that each
investment
described in this clause must (A) have a predetermined fixed
dollar
amount of principal due at maturity, which cannot vary or
change,
(B) if
bearing a variable rate of interest, its interest rate tied to
a
single
interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to
liquidation
prior to
their maturity;
(d) federal funds, unsecured certificates of deposit, time or
similar
deposits, bankers' acceptances and repurchase agreements, with
maturities
of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating
category
by each
Rating Agency or, if not rated by S&P or Moody's, as
applicable,
otherwise
acceptable to S&P or Moody's, 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; provided, however, that the
investment
described in this clause must (A) have a predetermined fixed
dollar
amount of principal due at maturity, which cannot vary or
change,
(B) if
bearing a variable rate of interest, have its interest rate tied
to
a single
interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to
liquidation
prior to
its maturity;
(e) fully Federal Deposit Insurance Corporation-insured demand
and
time
deposits in, or certificates of deposit of, or bankers'
acceptances
issued by,
any bank or trust company, savings and loan association or
savings
bank, and, if such demand and time deposits in, or certificates
of
deposit
of, or bankers' acceptances are not fully insured by the
Federal
Deposit
Insurance Corporation, the short term obligations of such bank
or
trust
company, savings and loan association or savings bank are rated
in
the
highest short term rating category by each Rating Agency or, if
not
rated by
S&P or Moody's, as applicable, otherwise acceptable to S&P
or
Moody's,
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; provided, however, that each investment described in
this
clause
must (A) have a predetermined fixed dollar amount of principal
due
at
maturity, which cannot vary or change, (B) if bearing a variable
rate
of
interest, its interest rate tied to a single interest rate index
plus a
fixed
spread (if any) and move proportionately with that index, and
(C)
not be
subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days
rated
in the
highest long-term unsecured rating category by each Rating
Agency
or, if not
rated by S&P or Moody's, as applicable, otherwise acceptable
to
S&P or
Moody's, 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; provided, however, that each investment described in
this
clause
must (A) have a predetermined fixed dollar amount of principal
due
at
maturity, which cannot vary or change, (B) if bearing a variable
rate
of
interest, have its interest rate tied to a single interest rate
index
plus a
fixed spread (if any) and move proportionately with that index,
and
(C) not be
subject to liquidation prior to its maturity;
(g) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations payable on demand or
on a
specified
date not more than one year after the date of issuance thereof)
with
maturities of not more than 365 days and that is rated in the
highest
short-term
unsecured debt rating by each Rating Agency or, if not rated by
S&P or
Moody's, as applicable, otherwise acceptable to S&P or Moody's,
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;
provided,
however, that each investment described in this clause must (A)
have a
predetermined fixed dollar amount of principal due at maturity,
which
cannot vary or change, (B) if bearing a variable rate of
interest,
have its
interest rate tied to a single interest rate index plus a fixed
spread (if
any) and move proportionately with that index, and (C) not be
subject to
liquidation prior to their maturity;
(h) units of taxable money market mutual funds, issued by
regulated
investment
companies, which seek to maintain a constant net asset value
per share
(including the Federated Prime Obligation Money Market Fund
(the
"Fund"))
so long as any such fund is rated in the highest short-term
unsecured
debt ratings category by each Rating Agency or, if not rated by
S&P or
Moody's, as applicable, otherwise acceptable to S&P or Moody's,
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; and
(i) any other demand, money market or time deposit, demand
obligation
or any other obligation, security or investment, provided that
each
Rating Agency has confirmed in writing to the applicable
Servicer,
Special
Servicer or Trustee, as applicable, that such investment would
not, in
and of itself, result in a downgrade, qualification or
withdrawal
of the
then-current ratings assigned to the Certificates.
provided, however, that 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 Loan REMIC, 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/GMAC Commercial Holding Indemnification Agreement":
The
agreement dated as of August 19, 2005 from
PNC Bank to GMAC Commercial Holding.
"PNC Bank Indemnification Agreement": The agreement dated as of
August 19, 2005 from PNC to the Depositor
and the Underwriters but excluding
GMAC Commercial Holding.
"PNC Bank Purchase Agreement": The Mortgage Loan Purchase
Agreement,
dated and effective the Closing Date,
between PNC Bank and the Depositor.
"PNC/Mezz Cap B Loan": As defined in the preliminary statement.
"PNC/Mezz Cap B Loans": Collectively, the Indian Trail Shopping
Center B Loan, the Walker Springs Community
Shopping Center B Loan, the High
Point Center B Loan and the
CVS-Eckerds-Kansas City B Loan, as applicable and as
the context may require.
"PNC/Mezz Cap B Loan Noteholders": The holders of the Notes for
the
PNC/Mezz Cap B Loans.
"PNC/Mezz Cap Intercreditor Agreements": With respect to each
of
Indian Trail Shopping Center loan, the
Walker Springs Community Shopping Center
loan, the High Point Center loan and the
CVS-Eckerds-Kansas City loan, the
related Intercreditor Agreement Among
Noteholders, dated as of June 8, 2005,
June 8, 2005, June 8, 2005, and June 3,
2005, respectively, each by and between
PNC Bank, National Association, as the Note
A holder, and CBA - Mezzanine
Capital Finance, LLC, as the Note B holder,
as from time to time amended,
supplemented or modified.
"PNC/Mezz Cap Mortgage Loan": As defined in the preliminary
statement herein.
"PNC/Mezz Cap Whole Loan": As defined in the preliminary
statement.
"Prepayment Assumption": The assumption that each Mortgage Loan
does
not prepay prior to its respective Maturity
Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution
Date,
the aggregate amount, with respect to all
Mortgage Loans that were subject to
Principal Prepayment in full or in part, or
as to which Insurance Proceeds,
Liquidation Proceeds or Condemnation
Proceeds, as applicable, were received by
the applicable 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 applicable 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 applicable
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,
Liquidation Proceeds or Condemnation
Proceeds during the period commencing on
the date as of which such Principal
Prepayment, Insurance Proceeds, Liquidation
Proceeds or Condemnation Proceeds,
as applicable, were applied to the unpaid
principal balance of the Mortgage Loan
and ending on (and including) the day
immediately preceding such Due Date
(without regard to any Prepayment Premium
or Yield Maintenance Charge actually
collected). A Prepayment Interest Shortfall
in respect of the Yorktowne Plaza
Mortgage Loan shall be a Prepayment
Interest Shortfall in respect of the related
Loan REMIC Regular Interest.
"Prepayment Premium": Any premium, fee or other additional
amount
(other than a Yield Maintenance Charge)
paid or payable on a Mortgage Loan or
Serviced Companion Loan by a Borrower as
the result of a Principal Prepayment
thereon, not otherwise due thereon, in
respect of principal or interest, which
is intended to compensate the holder of the
related Note for prepayment.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
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 Trustee 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 Trustee in its
reasonable discretion) as may be in
effect from time to time. The Trustee shall
notify in writing each 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-4, Class A-AB, Class A-5A,
Class A-5B, 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 on or before the
related
Due Date
(if received or advanced);
(b) the principal component of all Assumed Scheduled Payments due
on
or before
the related Due Date (if received or advanced) with respect to
any
Mortgage Loan that is delinquent in respect of its Balloon
Payment;
(c) the Stated Principal Balance of each Mortgage Loan that
was,
during the
related Collection Period, repurchased from the Trust Fund in
connection
with a Breach or Defect pursuant to Section 2.03, purchased
pursuant
to Section 3.18, or purchased from the Trust Fund pursuant to
Section
9.01;
(d) the
portion of Unscheduled Payments allocable to principal of
any
Mortgage Loan that was liquidated during the related Collection
Period;
(e) the principal component of all Balloon Payments and any
other
principal
payment on any Mortgage Loan received on or after the Maturity
Date
thereof, to the extent received during the related Collection
Period;
(f) all other Principal Prepayments on Mortgage Loans received
in
the
related Collection Period; and
(g) any other full or partial recoveries in respect of principal
of
Mortgage
Loans, including Insurance Proceeds, Liquidation Proceeds and
Net
REO
Proceeds received in the related Collection Period (including
any
amount
related to the Loss of Value Payments to the extent that such
amount was
transferred into the applicable 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 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 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 or, with respect to Property Advances,
the
Serviced Whole Loans, are subsequently recovered on the related
Mortgage Loan or, with respect to Property Advances, the
Serviced
Whole Loan, such recovery will increase the Principal
Distribution
Amount for the Distribution Date related to the period in which
such
recovery occurs).
The principal component of the amounts set
forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a
Borrower
on a Mortgage Loan or Serviced Companion
Loan which is received in advance of
its scheduled Due Date and which is not
accompanied by an amount of interest
representing the full amount of scheduled
interest due on any date or dates in
any month or months subsequent to the month
of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global
Certificates with respect to the Class X-C,
Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates if and so
long as such class of Certificates is
registered in the name of a nominee of the
Depository.
"Private Placement Memorandum": Means the Private Placement
Memorandum, dated August 5, 2005, pursuant
to which the Class X-C, Class E,
Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O
and Class P Certificates will be offered
for sale.
"Privileged Person": Means a party to this Agreement, a Rating
Agency, a designee of the Depositor
(including any financial market publisher),
the initial Controlling Class
Representative, each Underwriter and any other
person who delivers to the Trustee in the
form attached hereto as Exhibit L
(which form may be provided by the Trustee
upon request), a certification that
such person is a Certificateholder, a
Certificate Owner of a Certificate or a
prospective purchaser of a Certificate.
"Property Advance": As to any Mortgage Loan (other than any
Non-Serviced Mortgage Loan) or Serviced
Whole Loan, any advance made by the
applicable Servicer, the Special Servicer
or the Trustee, as applicable, in
respect of Property Protection Expenses or
any expenses incurred to protect,
preserve and enforce the security for a
Mortgage Loan or a Serviced Whole Loan
or to pay taxes and assessments or
insurance premiums with respect to the
related Mortgaged Property, to the extent
the making of any such advance is
specifically provided for in this
Agreement, including, but not limited to, as
provided in Section 3.04 and Section 3.24,
as applicable. Each reference to the
payment or reimbursement of a Property
Advance shall be deemed to include,
whether or not specifically referred to,
payment or reimbursement of interest
thereon at the Advance Rate from and
including the date of the making of such
Advance to and including the date of
payment or reimbursement. Notwithstanding
anything to the contrary, "Property
Advance" shall not include allocable
overhead of the applicable Servicer or the
Special Servicer, as applicable, such
as costs for office space, office
equipment, supplies and related expenses,
employee salaries and related expenses and
similar internal costs and expenses
or costs and expenses incurred by any such
party in connection with its purchase
of a Mortgage Loan or REO Property.
"Property Protection Expenses": With respect to any Mortgage
Loan
(other than the Non-Serviced Mortgage
Loans) or Serviced Companion Loan, any
costs and expenses incurred by the
applicable Servicer or the Special Servicer
pursuant to Sections 3.04, 3.08(a),
3.10(b), 3.10(e), 3.10(f), 3.10(h), 3.10(i),
3.10(k), 3.11, 3.12(e), 3.17(a), 3.17(b),
3.17(c), 3.18(g) or 3.28(a) or
indicated herein as being payable as a
Property Advance or as a cost or expense
of the Trust Fund (and, in the case of the
Serviced Whole Loans, the Serviced
Companion Loan Noteholders but subject to
the provisions of Section 1.02(e)) or
the Lower-Tier REMIC, or Upper-Tier REMIC
to be paid out of the applicable
Collection Account.
"Prospectus": The Depositor's Prospectus dated August 5, 2005,
as
supplemented by the Prospectus Supplement
dated August 5, 2005, relating to the
offering of the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-AB, Class
A-5A, Class A-5B, Class A-1A, Class A-J,
Class B, Class C, Class D and Class X-P
Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional
buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company
qualified to write the related insurance
policy in the relevant jurisdiction which
shall have a rating of "A3" or better
by Moody's and an insurance financial
strength rating of "A-" or better by S&P
and (ii) in the case of the fidelity bond
and the errors and omissions insurance
required to be maintained pursuant to
Section 3.08(d), shall have a claims
paying ability rated by each Rating Agency
no lower than two ratings categories
(without regard to pluses or minuses or
numeric qualifications) lower than the
highest rating of any outstanding Class of
Certificates from time to time, but
in no event lower than "A2" by Moody's (or
if such company is not rated by
Moody's, is rated at least A:IX by A.M.
Best's Key Rating Guide) and in the case
of S&P, an insurance financial strength
rating of "A" or better, unless in any
such case each of the Rating Agencies has
confirmed in writing that obtaining
the related insurance from an insurance
company that is not rated by each of the
Rating Agencies (subject to the foregoing
exceptions) or that has a lower
claims-paying ability than such
requirements shall not result, in and of itself,
in a downgrade, qualification or withdrawal
of the then-current ratings by such
Rating Agency to any Class of
Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified
mortgage"
within the meaning of Code Section
860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section
1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any
substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": A mortgage loan which
must,
on the date of substitution: (i) have an
outstanding Stated Principal Balance,
after application of all scheduled payments
of principal and/or interest due
during or prior to the month of
substitution, whether or not received, not in
excess of the Stated Principal Balance of
the Removed Mortgage Loan as of the
Due Date in the calendar month during which
the substitution occurs; (ii) have a
Mortgage Rate not less than the Mortgage
Rate of the Removed Mortgage Loan;
(iii) have the same Due Date as the Removed
Mortgage Loan; (iv) accrue interest
on the same basis as the Removed Mortgage
Loan (for example, on the basis of a
360-day year and the actual number of days
elapsed); (v) have a remaining term
to stated maturity not greater than, and
not more than two years less than, the
remaining term to stated maturity of the
Removed Mortgage Loan; (vi) have an
original loan to value ratio not higher
than that of the Removed Mortgage Loan
and a current loan to value ratio not
higher than the then current loan-to-value
ratio of the Removed Mortgage Loan; (vii)
materially comply as of the date of
substitution with all of the
representations and warranties set forth in the
applicable Mortgage Loan Purchase
Agreement; (viii) have an Environmental Report
that indicates no material adverse
environmental conditions with respect to the
related Mortgaged Property and that will be
delivered as a part of the related
Servicing File; (ix) have an original Debt
Service Coverage Ratio of not less
than the original Debt Service Coverage
Ratio of the Removed Mortgage Loan and a
current Debt Service Coverage Ratio of not
less than the current Debt Service
Coverage Ratio of the Removed Mortgage
Loan; (x) be determined by an Opinion of
Counsel (at the applicable Mortgage Loan
Seller's expense) to be a "qualified
replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date
that is three years prior to the Rated
Final Distribution Date; (xii) not be
substituted for a Removed Mortgage Loan
unless the Trustee has received prior
confirmation in writing by each Rating
Agency that such substitution will not in
and of itself result in the
withdrawal, downgrade, or qualification of
the rating assigned by the Rating
Agency to any Class of Certificates then
rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to
be paid by the applicable Mortgage
Loan Seller) (provided that no such
confirmation from any Rating Agency shall be
required with respect to any Companion Loan
Securities); (xiii) have been
approved by the Controlling Class
Representative in its sole discretion; (xiv)
prohibit defeasance within two years after
the Closing Date, (xv) not be
substituted for a Removed Mortgage Loan if
it would result in the termination of
the REMIC status of the Loan REMIC or
either Trust REMIC or the imposition of
tax on any of such REMICs other than a tax
on income expressly permitted or
contemplated to be received by the terms of
this Agreement, as determined by an
Opinion of Counsel and (xvi) if the Removed
Mortgage Loan is part of Loan Group
2, have the same property type designation
as the Removed Mortgage Loan. In the
event that one or more mortgage loans are
substituted for one or more Removed
Mortgage Loans, then the amounts described
in clause (i) shall be determined on
the basis of aggregate Stated Principal
Balances and the rates described in
clause (ii) above and the remaining term to
stated maturity referred to in
clause (v) above shall be determined on a
weighted average basis; provided that
no individual Mortgage Rate shall be lower
than the highest Pass-Through Rate
(that is a fixed rate not subject to a cap
equal to the Weighted Average Net
Mortgage Rate) of any Class of Principal
Balance Certificates having an
outstanding Certificate Balance. When a
Qualified Substitute Mortgage Loan is
substituted for a Removed Mortgage Loan,
the applicable Mortgage Loan Seller
shall certify that the Mortgage Loan meets
all of the requirements of the above
definition and shall send such
certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in June
2044.
"Rating Agency": means any of S&P and Moody's.
"Real Property": Land or improvements thereon such as buildings
or
other inherently permanent structures
thereon (including items that are
structural components of the buildings or
structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the
amount,
if any, by which (i) the aggregate
Certificate Balance of the Principal Balance
Certificates after giving effect to
distributions of principal on such
Distribution Date exceeds (ii) the
aggregate Stated Principal Balance of the
Mortgage Loans in the Mortgage Pool (for
purposes of this calculation only, not
giving effect to any reductions of the
Stated Principal Balance for principal
payments received on the Mortgage Loans in
the Mortgage Pool that were used to
reimburse the applicable Servicer or the
Trustee from general collections of
principal on the Mortgage Loans for
Workout-Delayed Reimbursement Amounts, to
the extent such Workout-Delayed
Reimbursement Amounts are not otherwise
determined to be Nonrecoverable Advances)
immediately following the
Determination Date preceding such
Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l(a)(viii).
"Reconciliation of Funds Report": A report prepared by the
Trustee
substantially in the form of, and
containing the information called for in, the
downloadable form of the "Reconciliation of
Funds Report" available as of the
Closing Date on the CMSA Website, or such
other final form for the presentation
of such information and containing such
additional information as may from time
to time be promulgated as recommended by
the CMSA for commercial mortgage
securities transactions generally and,
insofar as it requires the presentation
of information in addition to that called
for by the form of the "Reconciliation
of Funds Report" available as of the
Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, the
applicable Servicer or the Special
Servicer, as applicable.
"Record Date": With respect to each Distribution Date, the close
of
business on the last day of the calendar
month preceding the month in which such
Distribution Date occurs or, if such day is
not a Business Day, the preceding
Business Day; provided, however, that with
respect to the Distribution Date
occurring in September 2005, the Record
Date will be the Closing Date.
"Regular Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-4, Class A-AB, Class A-5A, Class A-5B,
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
and Class P Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class E, Class
F,
Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class
P Certificates issued as such on the
Closing Date.
"Regulation S Investor": With respect to a transferee of an
interest
in a Regulation S Global Certificate, a
transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the
REMIC Provisions.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment
conduits, which appear at Section
860A through 860G of Subchapter M of
Chapter 1 of the Code, and related
provisions, and regulations (including any
applicable proposed regulations) and
rulings promulgated thereunder, as the
foregoing may be in effect from time to
time.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased
from
the Trust Fund pursuant to the terms hereof
or as to which one or more
Qualifying Substitute Mortgage Loans are
substituted.
"Rents
from Real Property": With respect to any REO Property, gross
income of the character described in
Section 856(d) of the Code, which income,
subject to the terms and conditions of that
Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code,
any
amount
received or accrued, directly or indirectly, with respect to
such
REO
Property, if the determination of such amount depends in whole or
in
part on
the income or profits derived by any Person from such property
(unless
such amount is a fixed percentage or percentages of receipts or
sales and
otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from
any
Person if
the
