EXHIBIT 4
================================================================================
GE COMMERCIAL MORTGAGE CORPORATION,
Depositor
MIDLAND LOAN SERVICES, INC.,
Servicer
MIDLAND LOAN SERVICES, INC.,
Special Servicer
and
WELLS FARGO BANK, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
$2,398,035,315
GE Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates
Series 2005-C4
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms...................................................
Section 1.02 Certain
Calculations............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans....................................
Section 2.02 Acceptance by
Trustee...........................................
Section 2.03 Representations, Warranties and
Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Document Defects in
Mortgage Files and Breaches of Representations and
Warranties.....................................................
Section 2.04 Execution of Certificates;
Issuance of Uncertificated
Lower-Tier Interests...........................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer;
Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans
and Serviced Whole Loans.......................................
Section 3.02 Collection of Loan
Payments.....................................
Section 3.03 Collection of Taxes, Assessments
and Similar Items;
Servicing Accounts.............................................
Section 3.04 The Certificate Account, the
Lower-Tier and Upper-Tier
Distribution Accounts; the Excess Liquidation Proceeds
Reserve Account; the Interest Reserve Account, the
Excess Interest Distribution Account and the Serviced
Whole Loan Custodial Accounts..................................
Section 3.05 Permitted Withdrawals from the
Certificate Account, the
Distribution Account and the Serviced Whole Loan
Custodial Accounts.............................................
Section 3.06 Investment of Funds in the
Certificate Account, the
Serviced Whole Loan Custodial Accounts, the Distribution
Account, the Interest Reserve Account and the REO
Accounts.......................................................
Section 3.07 Maintenance of Insurance Policies;
Errors and Omissions
and Fidelity Coverage..........................................
Section 3.08 Enforcement of Due-On-Sale and
Due-on Encumbrance
Clauses; Assumption Agreements.................................
Section 3.09 Realization Upon Defaulted
Mortgage Loans.......................
Section 3.10 Trustee to Cooperate; Release of
Mortgage Files.................
Section 3.11 Servicing
Compensation..........................................
Section 3.12 Inspections; Collection of
Financial Statements.................
Section 3.13 Annual Statement as to
Compliance...............................
Section 3.14 Reports by Independent Public
Accountants.......................
Section 3.15 Access to Certain
Information...................................
Section 3.16 Title to REO Property; REO
Accounts.............................
Section 3.17 Management of REO
Property......................................
Section 3.18 Sale of Defaulted Mortgage Loans
and REO Properties.............
Section 3.19 Additional Obligations of the
Servicer..........................
Section 3.20 Modifications, Waivers, Amendments
and Consents.................
Section 3.21 Transfer of Servicing Between
Servicer and Special
Servicer; Record Keeping; Asset Status Report..................
Section 3.22 Sub-Servicing
Agreements........................................
Section 3.23 Representations, Warranties and
Covenants of the Servicer.......
Section 3.24 Representations, Warranties and
Covenants of the Special
Servicer.......................................................
Section 3.25 Interest Reserve
Account........................................
Section 3.26 Excess Interest Distribution
Account............................
Section 3.27 Certain Matters Relating to the
Serviced Whole Loans............
Section 3.28 Certain Matters Relating to a
Non-Serviced Mortgage Loan........
Section 3.29 Certain Matters Relating to the
Future Securitization of
the Serviced Pari Passu Loans..................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01
Distributions...................................................
Section 4.02 Statements to Certificateholders;
CMSA Investor Reporting
Package (IRP)s.................................................
Section 4.03 P&I
Advances....................................................
Section 4.04 Allocation of Collateral Support
Deficit........................
Section 4.05 Appraisal
Reductions............................................
Section 4.06 Certificate Deferred
Interest...................................
Section 4.07 Grantor Trust
Reporting.........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates................................................
Section 5.02 Registration of Transfer and
Exchange of Certificates...........
Section 5.03 Book-Entry
Certificates.........................................
Section 5.04 Mutilated, Destroyed, Lost or
Stolen Certificates...............
Section 5.05 Persons Deemed
Owners...........................................
ARTICLE VI
THE DEPOSITOR, THE
SERVICER,
THE SPECIAL SERVICER AND THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the
Servicer and the Special
Servicer.......................................................
Section 6.02 Merger, Consolidation or
Conversion of the Depositor, the
Servicer or the Special Servicer...............................
Section 6.03 Limitation on Liability of the
Depositor, the Servicer,
the Special Servicer and Others................................
Section 6.04 Depositor, Servicer and Special
Servicer Not to Resign..........
Section 6.05 Rights of the Depositor in Respect
of the Servicer and
the Special Servicer...........................................
Section 6.06
[Reserved]......................................................
Section 6.07 The Directing
Certificateholder.................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and
Special Servicer
Termination....................................................
Section 7.02 Trustee to Act; Appointment of
Successor........................
Section 7.03 Notification to
Certificateholders..............................
Section 7.04 Waiver of Events of
Default.....................................
Section 7.05 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 Validity or
Sufficiency of
Certificates or Mortgage Loans.................................
Section 8.04 Trustee May Own
Certificates....................................
Section 8.05 Fees and Expenses of Trustee;
Indemnification of Trustee........
Section 8.06 Eligibility Requirements for
Trustee............................
Section 8.07 Resignation and Removal of the
Trustee..........................
Section 8.08 Successor
Trustee...............................................
Section 8.09 Merger or Consolidation of
Trustee..............................
Section 8.10 Appointment of Co-Trustee or
Separate Trustee...................
Section 8.11 Appointment of
Custodians.......................................
Section 8.12 Access to Certain
Information...................................
Section 8.13 Representations and Warranties of
the Trustee...................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or
Liquidation of All
Mortgage Loans.................................................
Section 9.02 Additional Termination
Requirements.............................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC
Administration............................................
Section 10.02 Depositor, Servicer and
Special Servicer to Cooperate
with Trustee...................................................
Section 10.03 Use of
Agents...................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment.......................................................
Section 11.02 Recordation of Agreement;
Counterparts..........................
Section 11.03 Limitation on Rights of
Certificateholders and the Holder
of Any Serviced Pari Passu Loan or Serviced B Note.............
Section 11.04 Governing
Law...................................................
Section 11.05
Notices.........................................................
Section 11.06 Severability of
Provisions......................................
Section 11.07 Grant of a Security
Interest....................................
Section 11.08 Successors and Assigns;
Beneficiaries...........................
Section 11.09 Article and Section
Headings....................................
Section 11.10 Notices to the Rating
Agencies..................................
EXHIBITS
Exhibit A-1 Form
of Class A-1 Certificate
Exhibit A-2 Form
of Class A-1D Certificate
Exhibit A-2 Form
of Class A-2 Certificate
Exhibit A-3 Form
of Class A-3A Certificate
Exhibit A-4 Form
of Class A-3B Certificate
Exhibit A-5 Form
of Class A-SB Certificate
Exhibit A-6 Form
of Class A-4 Certificate
Exhibit A-7 Form
of Class A-1A Certificate
Exhibit A-8 Form
of Class A-M Certificate
Exhibit A-9 Form
of Class A-J Certificate
Exhibit A-10 Form of
Class B Certificate
Exhibit A-11 Form of
Class C Certificate
Exhibit A-12 Form of
Class D Certificate
Exhibit A-13 Form of
Class E Certificate
Exhibit A-14 Form of
Class F Certificate
Exhibit A-15 Form of
Class G Certificate
Exhibit A-16 Form of
Class H Certificate
Exhibit A-17 Form of
Class J Certificate
Exhibit A-18 Form of
Class K Certificate
Exhibit A-19 Form of
Class L Certificate
Exhibit A-20 Form of
Class M Certificate
Exhibit A-21 Form of
Class N Certificate
Exhibit A-22 Form of
Class O Certificate
Exhibit A-23 Form of
Class P Certificate
Exhibit A-24 Form of
Class Q Certificate
Exhibit A-25 Form of
Class X-W Certificate
Exhibit A-26 Form of
Class R Certificate
Exhibit A-27 Form of
Class LR Certificate
Exhibit A-28 Form of
Class S Certificate
Exhibit B
Mortgage Loan Schedule
Exhibit C
Form of Investment Representation Letter
Exhibit D-1 Form
of Transfer Affidavit
Exhibit D-2 Form
of Transferor Letter
Exhibit E
Form of Request for Release
Exhibit F
Form of ERISA Representation Letter
Exhibit G-1 Form
of Statement to Certificateholders
Exhibit G-2 Form
of Statement to Certificateholders Filed with the SEC
Exhibit H
Form of Omnibus Assignment
Exhibit I
Form of Trustee Certification
Exhibit J
[Reserved]
Exhibit K
Form of Confidentiality Agreement
Exhibit L
Form of Investor Certification
Exhibit M
Form of Purchase Option Notice
Exhibit N
Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate on or Prior
to the Release Date
Exhibit O
Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate After
the Release Date
Exhibit P
Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Book-Entry Certificate on or Prior to
Release Date
Exhibit Q
Form of Transfer Certificate for Transfers Within
Regulation S Book-Entry Certificate on or Prior to the
Release Date
Exhibit R-1 Form
of Transfer Certificate for Definitive Certificate to
Regulation S Book-Entry Certificate on or Prior to the
Release Date
Exhibit R-2 Form
of Transfer Certificate for Definitive Certificate to
Regulation S Book-Entry Certificate After the Release Date
Exhibit S
Form of Transfer Certificate for Book-Entry Certificate to
Regulation S Definitive Certificate
Exhibit T
Whole Loan Report
Exhibit U
Form of Certification to be Provided with Form 10-K
Exhibit V-1 Form
of Certification to be Provided to Depositor by the
Servicer
Exhibit V-2 Form
of Certification to be Provided to Depositor by the
Special Servicer
Exhibit V-3 Form
of Certification to be Provided to Depositor by the
Trustee
Exhibit W
[Reserved]
Exhibit X
Form of Notice and Certification Regarding Defeasance of
Loan
Exhibit Y
[Reserved]
Exhibit Z
Form of Notice Relating to the Non-Serviced Whole Loan
SCHEDULES
Schedule 1
Computerized Database Information
Schedule 2
Mortgage Loans Containing Additional Debt
Schedule 3
Mortgage Loans which Initially Pay Interest Only
Schedule 4
Mortgage Loans with Environmental Insurance Policies
Schedule 5
Class A-SB Planned Principal Balance Table
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated
and
effective as of December 1, 2005, among GE
COMMERCIAL MORTGAGE CORPORATION, as
Depositor, MIDLAND LOAN SERVICES, INC., as
Servicer, MIDLAND LOAN SERVICES,
INC., as Special Servicer and WELLS FARGO
BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the
"Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which
in the aggregate will evidence the
entire beneficial ownership interest in the
trust fund (the "Trust Fund") to be
created hereunder, the primary assets of
which will be a pool of commercial,
multifamily and manufactured housing
community mortgage loans. As provided
herein, the Trustee shall elect or shall
cause an election to be made to treat
the Trust Fund (exclusive of the Excess
Interest and the Excess Interest
Distribution Account) for federal income
tax purposes as two separate real
estate mortgage investment conduits (the
"Lower-Tier REMIC" and the "Upper-Tier
REMIC," each, a "REMIC").
The portion of the Trust Fund consisting of the Excess Interest
shall be treated as a grantor trust (the
"Grantor Trust") for federal income tax
purposes. The Class S Certificates will
represent the sole interest in the
Grantor Trust for federal income tax
purposes.
As provided herein, the Trustee shall take all actions necessary
to
ensure that the portions of the Trust Fund
consisting of the Grantor Trust will
maintain its status as a "grantor trust"
under federal income tax law and will
not be treated as part of either the
Upper-Tier REMIC or Lower-Tier REMIC.
UPPER-TIER REMIC
The Class A-1, Class A-1D, Class A-2, Class A-3A, Class A-3B,
Class
A-SB, Class A-4, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class X-W
Certificates will evidence "regular
interests" in the Upper-Tier REMIC created
hereunder. The sole Class of
"residual interest" in the Upper-Tier REMIC
created hereunder will be evidenced
by the Class R Certificates.
The following table sets forth the designation, the
pass-through
rate (the "Pass-Through Rate"), the
aggregate initial principal amount (the
"Original Certificate Balance") or Notional
Amount ("Original Notional Amount"),
as applicable, and the initial ratings
given each Class by the Rating Agencies
(the "Original Ratings") for each Class of
Certificates comprising the interests
in the Upper-Tier REMIC created
hereunder:
Original Certificate Original
Class
Pass-Through Rate Balance or Notional
Rating
Designation (per
annum)
Amount
Moody's/S&P
-----------
-----------
------
-----------
Class A-1
5.0820%
$27,300,000
Aaa/AAA
Class A-1D
3.9250%
$75,000,000
Aaa/AAA
Class A-2
5.3050%(1)
$/224,800,000
Aaa/AAA
Class A-3A
5.3334%(2)
$197,000,000
Aaa/AAA
Class A-3B
5.3334%(2)
$25,000,000
Aaa/AAA
Class A-SB
5.3014%(3)
$140,040,000
Aaa/AAA
Class A-4
5.3334%(2)
$775,100,000
Aaa/AAA
Class A-1A
5.3334%(2)
$214,384,000
Aaa/AAA
Class A-M
5.3334%(2)
$239,803,000
Aaa/AAA
Class A-J
5.3334%(2)
$152,876,000
Aaa/AAA
Class B
5.3334%(2)
$23,980,000
Aa1/AA+
Class C
5.3334%(2)
$29,975,000
Aa2/AA
Class D
5.3334%(2)
$23,981,000
Aa3/AA-
Class E
5.3334%(2)
$44,963,000
A2/A
Class F
5.3334%(2)
$26,978,000
A3/A-
Class G
5.3334%(2)
$32,973,000
Baa1/BBB+
Class H
5.3334%(2)
$23,980,000
Baa2/BBB
Class J
5.3334%(2)
$26,978,000
Baa3/BBB-
Class K
5.0130%(4)
$11,990,000
Ba1/BB+
Class L
5.0130%(4)
$11,990,000
Ba2/BB
Class M
5.0130%(4)
$8,993,000
Ba3/BB-
Class N
5.0130%(4)
$8,993,000
B1/B+
Class O
5.0130%(4)
$5,995,000
B2/B
Class P
5.0130%(4)
$8,992,000
B3/B-
Class Q
5.0130%(4)
$35,971,314
NR/NR
Class X-W
0.0639%(4)(5)
$2,398,035,314
Aaa/AAA
Class R
None(6)
None(6)
NR/NR
--------------------------------
(1) The Pass-Through Rate for
any Distribution Date for each of the Class A-2
Certificates will be the lesser of (i) 5.3050%, per annum,
respectively
and (ii)
the Weighted Average Net Mortgage Rate for such Distribution
Date. The
Pass-Through Rate for the Class A-2 Certificates for the first
Distribution Date is 5.3050%, per annum.
(2) The Pass-Through Rate for
any Distribution Date for each of the Class
A-3A,
Class A-3B, Class A-4 and Class A-1A, Class A-M, Class A-J, Class
B,
Class C,
Class D, Class E, Class F, Class G, Class H and Class J
Certificates shall be 5.3334 per annum, for the initial
Distribution Date,
and
thereafter shall be the Weighted Average Net Mortgage Rate for
such
Distribution Date.
(3) The Pass-Through Rate for
any Distribution Date for Class A-SB
Certificates will be the Weighted Average Net Mortgage Rate minus
0.032%.
(4) The Pass-Through Rate for
any Distribution Date for each of the Class A-M,
Class K,
Class L, Class M, Class N, Class O, Class P and Class Q
Certificates shall be the lesser of (i) 5.0130 per annum, and (ii)
the
Weighted
Average Net Mortgage Rate for such Distribution Date. The
Pass-Through Rate for the Class K, Class L, Class M, Class N, Class
O,
Class P
and Class Q Certificates for the first Distribution Date is
5.0130%
per annum.
The
Pass-Through Rate for any Distribution Date for the Class X-W
Certificates will be one-twelfth of the weighted average of the
Class X-W
Strip
Rates. The Pass-Through Rate for the Class X-W Certificates for
the
first
Distribution Date is approximately 0.0639%, per annum.
(5) The Class X-W Certificates
will not have Certificate Balances and will not
be
entitled to receive distributions of principal. Interest will
accrue on
the
Components of such Classes at the Class X-W Strip Rate on the
Notional
Amounts
thereof. The Notional Amount of each Component for any
Distribution Date will be equal to the Lower-Tier Principal Amount
of the
Related
Uncertificated Lower-Tier Interest for such Distribution Date,
which will
be equal to the Certificate Balance of the Related Certificates
as of the
preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support
Deficit on
such
Distribution Date) or, in the case of the first Distribution
Date,
the
Cut-off Date. The original Notional Amount of the Class X-W
Certificates is $2,398,035,314.
(6) The Class R Certificates do
not have a Certificate Balance or Notional
Amount, do
not bear interest and will not be entitled to distributions of
Yield
Maintenance Charges. Any Available Distribution Amount remaining
in
the
Upper-Tier Distribution Account, after all required
distributions
under this
Agreement have been made to each other Class of Certificates,
will be
distributed to the Holders of the Class R Certificates.
LOWER-TIER REMIC
The Uncertificated Lower-Tier Interests will evidence "regular
interests" in the Lower-Tier REMIC created
hereunder. The sole Class of
"residual interest" in the Lower-Tier REMIC
created hereunder will be evidenced
by the Class LR Certificates.
The following table sets forth the initial principal amount
(the
"Original Lower-Tier Principal Amounts")
and per annum rates of interest for the
Uncertificated Lower-Tier Interests and the
Class LR Certificates:
Class
Interest
Original Lower-Tier
Designation
Rate
Principal Amount
-----------
----
----------------
Class LA-1
(1)
$27,300,000
Class LA-1D
(1)
$75,000,000
Class LA-2
(1)
$224,800,000
Class LA-3A
(1)
$197,000,000
Class LA-3B
(1)
$25,000,000
Class LA-SB
(1)
$140,040,000
Class LA-4
(1)
$775,100,000
Class LA-1A
(1)
$214,384,000
Class LA-M
(1)
$239,803,000
Class LA-J
(1)
$152,876,000
Class LB
(1)
$23,980,000
Class LC
(1)
$29,975,000
Class LD
(1)
$23,981,000
Class LE
(1)
$44,963,000
Class LF
(1)
$26,978,000
Class LG
(1)
$32,973,000
Class LH
(1)
$23,980,000
Class LJ
(1)
$26,978,000
Class LK
(1)
$11,990,000
Class LL
(1)
$11,990,000
Class LM
(1)
$8,993,000
Class LN
(1)
$8,993,000
Class LO
(1)
$5,995,000
Class LP
(1)
$8,992,000
Class LQ
(1)
$35,971,314
Class LR
None(3)
None(3)
--------------------------------
(1) The interest rate for each
such Class of Uncertificated Lower-Tier
Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for each
such Class of Uncertificated Lower-Tier
Interests
will be the Pass-Through Rate of the Class of Related
Certificates.
(3) The Class LR Certificates do
not have a Certificate Balance or Notional
Amount, do
not bear interest and will not be entitled to distributions of
Yield
Maintenance Charges. Any Available Distribution Amount remaining
in
the
Lower-Tier Distribution Account after distributing the
Lower-Tier
Distribution Amount shall be distributed to the Holders of the
Class LR
Certificates (but only to the extent of the Available Distribution
Amount
for such
Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
As of close of business on the Cut-off Date, the Mortgage Loans
had
an aggregate principal balance, after
application of all payments of principal
due on or before such date, whether or not
received, equal to $2,398,035,315.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special
Servicer and the Trustee agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms,
unless the context otherwise
requires, shall have the meanings specified
in this Article.
"123 North Wacker B Note": With respect to the 123 North Wacker
Whole Loan, the related promissory note
made by the related Mortgagor and
secured by the Mortgage on the Mortgaged
Property identified as "123 North
Wacker" and designated as Promissory Note
B, which is not included in the Trust,
which is subordinated in right of payment
to the 123 North Wacker Mortgage Loan
as provided in the 123 North Wacker
Co-Lender Agreement.
"123 North Wacker Co-Lender Agreement": With respect to the 123
North Wacker Whole Loan, the related
intercreditor agreement by and between the
holders of the 123 North Wacker Mortgage
Loan and the 123 North Wacker B Note,
relating to the relative rights of such
holders of the respective 123 North
Wacker Mortgage Loan and the 123 North
Wacker B Note, as the same may be amended
from time to time in accordance with the
terms thereof.
"123 North Wacker Mortgage Loan": With respect to the 123 North
Wacker Whole Loan, the related promissory
note made by the related Mortgagor and
secured by the Mortgage on the Mortgaged
Property identified as "123 North
Wacker" and designated as Promissory Note
A, which is included in the Trust and
which is senior in right of payment to the
123 North Wacker B Note as provided
in the 123 North Wacker Co-Lender
Agreement.
"123 North Wacker Whole Loan": Collectively, the 123 North
Wacker
Mortgage Loan and the 123 North Wacker B
Note. References herein to the 123
North Wacker Whole Loan shall be construed
to refer to the aggregate
indebtedness under the 123 North Wacker
Mortgage Loan and the 123 North Wacker B
Note.
"Accrued Certificate Interest": With respect to each
Distribution
Date and each Class of Certificates (other
than the Class S Certificates, Class
X-W Certificates and the Residual
Certificates), an amount equal to interest for
the related Interest Accrual Period at the
Pass-Through Rate applicable to such
Class of Certificates for such Distribution
Date, accrued on the related
Certificate Balance of such Class (or with
respect to the Class X-W
Certificates, the Notional Amount of such
Class) outstanding immediately prior
to such Distribution Date; provided that,
for interest accrual purposes any
distributions in reduction of Certificate
Balance or Notional Amount or
reductions in Certificate Balance or
Notional Amount as a result of allocations
of Collateral Support Deficit on the
Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been
made on the first day of such
Interest Accrual Period. With respect to
any Distribution Date and the Class X-W
Certificates, the amount equal to the sum
of the Accrued Component Interest for
the related Interest Accrual Period for all
of their respective Components for
such Distribution Date. Accrued Certificate
Interest shall be calculated on the
basis of a 360-day year consisting of
twelve 30-day months.
"Accrued Component Interest": With respect to each Component of
the
Class X-W Certificates for any Distribution
Date, one month's interest at the
Class X-W Strip Rate applicable to such
Component for such Distribution Date,
accrued on the related Notional Amount of
such Component, outstanding
immediately prior to such Distribution
Date; provided that, for interest accrual
purposes any distributions in reduction of
Notional Amount or reductions in
Notional Amount as a result of allocations
of Collateral Support Deficit on the
Distribution Date occurring in an Interest
Accrual Period shall be deemed to
have been made on the first day of such
Interest Accrual Period. Accrued
Component Interest shall be calculated on
the basis of a 360-day year consisting
of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of
Certificates (other than the Class X-W and
the Residual Certificates) that had an
increase to its Certificate Balance as a
result of a recovery of Nonrecoverable
Advances, an amount equal to interest at
the Pass-Through Rate applicable to that
Class on the amount of such increase to
its Certificate Balance accrued from the
Distribution Date on which Collateral
Support Deficit was allocated to such Class
as a result of the reimbursement of
Nonrecoverable Advances from the Trust to,
but not including, the Distribution
Date on which the Certificate Balance was
so increased.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such
in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt
owed
by the related Mortgagor to a party other
than the lender under such Mortgage
Loan as of the Closing Date as set forth on
Schedule 2 hereto, as increased or
decreased from time to time pursuant to the
terms of the related subordinate
loan documents (including any subordination
agreement).
"Administrative Cost Rate": The sum of the Servicing Fee Rate
(and,
in the case of a Non-Serviced Mortgage
Loan, the related Non-Serviced Mortgage
Loan Primary Servicing Fee Rate) and the
Trustee Fee Rate, in each case computed
on the basis of the Stated Principal
Balance of the related Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(g).
"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.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Anticipated Prepayment Date": With respect to any Mortgage
Loan
that is indicated on the Mortgage Loan
Schedule as having a Revised Rate, the
date upon which such Mortgage Loan
commences accruing interest at such Revised
Rate.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be
(a) the tax laws of the State of New
York, (b) the tax laws of the State of
Minnesota and (c) such other 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, prepared in accordance with 12 C.F.R.
225.64.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than a Non-Serviced
Mortgage Loan) or Serviced Whole Loan
as to which an Appraisal Reduction Event
has occurred, an amount calculated by
the Special Servicer by the first
Determination Date following the date the
Special Servicer receives or performs the
required Appraisal equal to the
excess, if any, of (a) the Stated Principal
Balance of such Mortgage Loan or
Serviced Whole Loan as of the date of such
determination over (b) the excess of
(i) the sum of (A) 90% of the Appraised
Value (subject to such downward
adjustments as the Special Servicer may
deem appropriate but without implying
any duty to do so) of the related Mortgaged
Property as determined (1) by one or
more Appraisals (the costs of which shall
be paid by the Servicer as an Advance)
with respect to any Mortgage Loan (together
with any other Mortgage Loan
cross-collateralized with such Mortgage
Loan) or Serviced Whole Loan with an
outstanding principal balance equal to or
in excess of $2,000,000 or (2) by an
internal valuation performed by the Special
Servicer (unless the Special
Servicer elects to obtain an Appraisal with
the consent of the Directing
Certificateholder) with respect to any
Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with
such Mortgage Loan) or Serviced Whole
Loan with an outstanding principal balance
less than $2,000,000 and (B) all
escrows, letters of credit and reserves in
respect of such Mortgage Loan or
Serviced Whole Loan over (ii) the sum of,
as of the Due Date occurring in the
month of such Distribution Date, (A) to the
extent not previously advanced by
the Servicer or the Trustee, all unpaid
interest on such Mortgage Loan or
Serviced Whole Loan (together with any
Mortgage Loan cross-collateralized with
such Mortgage Loan or Serviced Whole Loan),
as applicable at a per annum rate
equal to its Mortgage Rate (or in the case
of a Serviced Whole Loan, the
weighted average of its Mortgage Rates),
(B) all unreimbursed Advances and
interest thereon at the Reimbursement Rate
in respect of such Mortgage Loan or
Serviced Whole Loan, (C) all unpaid
Servicing Fees (to the extent not
duplicative of any amounts listed above)
and Special Servicing Fees and (D) all
currently due and unpaid real estate taxes,
assessments, insurance premiums and
ground rents and all other amounts due and
unpaid with respect to such Mortgage
Loan or Serviced Whole Loan (which taxes,
premiums, ground rents and other
amounts have not been subject to an Advance
by the Servicer, the Special
Servicer or the Trustee, as applicable);
provided, however, without limiting the
Special Servicer's obligation to order and
obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or
internal valuation, as applicable,
referred to above within 90 days of the
Appraisal Reduction Event (or with
respect to the reduction event set forth in
clause (ii) of the definition of
Appraisal Reduction Event, within such 120
days set forth therein), the amount
of the Appraisal Reduction shall be deemed
to be an amount equal to 25% of the
current Stated Principal Balance of the
related Mortgage Loan or Serviced Whole
Loan until such time as such Appraisal or
internal valuation referred to above
is received and the Appraisal Reduction is
calculated. Promptly after the
Appraisal Reduction Event, the Special
Servicer shall order an Appraisal (the
cost of which shall be paid by the Servicer
as a Servicing Advance or, in the
event such Servicing Advance would be a
Nonrecoverable Advance, a Trust Fund
expense) or an internal valuation;
provided, however, that with respect to an
Appraisal Reduction Event as set forth in
clause (ii) of the definition of
Appraisal Reduction Event, the Special
Servicer shall order such Appraisal or
internal valuation within the 120 day
period set forth in such clause (ii),
which Appraisal or internal valuation shall
be delivered by the Special Servicer
to the Servicer, the Trustee, the Directing
Certificateholder (and if a Serviced
Whole Loan is involved, the related holder
of a Serviced B Note) and the Trustee
shall deliver such Appraisal or internal
valuation to each other Holder of a
Class K, Class L, Class M, Class N, Class
O, Class P and Class Q Certificate who
requests such Appraisal or internal
valuation in writing within 15 days of
receipt by the Trustee of such Appraisal or
internal valuation from the Special
Servicer. The Special Servicer shall report
the Appraisal Reduction to the
Trustee and the Servicer (and, with respect
to any Serviced Whole Loan, the
holders of any Serviced Pari Passu Loan and
Serviced B Note). The Servicer shall
cooperate, in accordance with the Servicing
Standard, in furnishing necessary
information to the Special Servicer in
connection with the Special Servicer's
calculation of any Appraisal Reduction. For
any Distribution Date and for any
Non-Serviced Mortgage Loan, the appraisal
reduction shall be calculated in
accordance with and pursuant to the terms
of the related Non-Serviced Mortgage
Loan Pooling Agreement.
With respect to each Mortgage Loan (other than a Non-Serviced
Mortgage Loan) or Serviced Whole Loan as to
which an Appraisal Reduction has
occurred (unless such Mortgage Loan or
Serviced Whole Loan has become a
Corrected Loan (for such purposes taking
into account any amendment or
modification of such Mortgage Loan or
Serviced Whole Loan)), the Special
Servicer shall, (a) within 30 days of each
annual anniversary of the related
Appraisal Reduction Event, (b) at such time
as the Special Servicer has notice
of a material adverse change in the
condition of the related Mortgaged Property
that materially affects the value of such
Mortgaged Property or (c) at such time
as the Special Servicer has notice of a
material defect in such Appraisal or
internal valuation, as applicable, order an
Appraisal or conduct an internal
valuation, as applicable, (which may be an
update of a prior Appraisal or
internal valuation), the cost of which
shall be paid by the Servicer as a
Servicing Advance or, in the event such
Servicing Advance would be a
Nonrecoverable Advance, a Trust Fund
expense. Based upon such Appraisal or
internal valuation, the Special Servicer
shall redetermine and report to the
Trustee and the Servicer (and, with respect
to any Serviced Whole Loan, the
holders of any Serviced Pari Passu Loan and
Serviced B Note) the amount of the
Appraisal Reduction with respect to such
Mortgage Loan or Serviced Whole Loan
and such redetermined Appraisal Reduction
shall replace the prior Appraisal
Reduction with respect to such Mortgage
Loan or Serviced Whole Loan.
Notwithstanding the foregoing, the Special
Servicer will not be required to
obtain an Appraisal or internal valuation
with respect to a Mortgage Loan or
Serviced Whole Loan which is the subject of
an Appraisal Reduction Event to the
extent the Servicer or the Special Servicer
has obtained an Appraisal or
internal valuation, as applicable, with
respect to the related Mortgaged
Property within the 12-month period
immediately prior to the occurrence of such
Appraisal Reduction Event. Instead, the
Special Servicer may use such prior
Appraisal or internal valuation, as
applicable, in calculating any Appraisal
Reduction with respect to such Mortgage
Loan or Serviced Whole Loan; provided,
the Special Servicer is not aware of any
material change to the related
Mortgaged Property that has occurred that
would affect the validity of such
Appraisal or internal valuation, as
applicable.
Any Appraisal Reduction for a Serviced Whole Loan shall be
allocated
as follows: (x) in the case of the 123
North Wacker Whole Loan, the Becker
Portfolio Whole Loan, the Crowne Pointe
Whole Loan, the Knox Park II Whole Loan
and the Edenvale Business Center Whole
Loan, first, to the 123 North Wacker B
Note, the Becker Portfolio B Note, the
Crowne Pointe B Note, the Knox Park II B
Note or the Edenvale Business Center B
Note, as applicable, and then, to the 123
North Wacker Mortgage Loan, the Becker
Portfolio Mortgage Loan, the Crowne
Pointe Mortgage Loan, the Knox Park II
Mortgage Loan or the Edenvale Business
Center Mortgage Loan, as applicable; and
(y) in the case of the DDR/Macquarie
Mervyn's Portfolio Whole Loan, to the
DDR/Macquarie Mervyn's Portfolio Mortgage
Loan, the DDR/Macquarie Mervyn's Portfolio
A-2 Note and the DDR/Macquarie
Mervyn's Portfolio A-3 Note, pro rata,
according to their respective Stated
Principal Balances and (z) in the case of
the Design Center of the Americas
Whole Loan, to the Design Center of the
Americas Mortgage Loan and the Design
Center of the Americas A-2 Note, pro rata,
according to their respective Stated
Principal Balances.
Any Mortgage Loan (other than the Non-Serviced Mortgage Loans)
or
Serviced Whole Loan previously subject to
an Appraisal Reduction which becomes a
Corrected Loan (for such purposes taking
into account any amendment or
modification of such Mortgage Loan or
Serviced Whole Loan), and with respect to
which no other Appraisal Reduction Event
has occurred and is continuing, will no
longer be subject to an Appraisal
Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage
Loan (other than a Non-Serviced
Mortgage Loan) or Serviced Whole Loan or
the related REO Property will be
reduced to zero as of the date the related
Mortgage Loan is paid in full,
liquidated, repurchased or otherwise
removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution
Date,
(i) with respect to the Certificates, an
amount equal to the product of (a) the
applicable per annum Pass-Through Rate
(i.e., for any month, one-twelfth of the
Pass-Through Rate) on the Class of
Certificates to which the Appraisal Reduction
is allocated (or each such Pass-Through
Rate if such Appraisal Reduction is
allocated to more than one such Class), and
(b) the sum of all Appraisal
Reductions with respect to such
Distribution Date (or, if such Appraisal
Reduction is allocated to more than one
Class of Certificates, the portion
thereof allocated to each such Class), or
(ii) with respect to each Mortgage
Loan for such Distribution Date, an amount
calculated by the Special Servicer
(who shall inform the Servicer of the
amount so calculated on the related
Determination Date) equal to the product of
(a) the weighted average of the
applicable per annum Pass-Through Rates
(i.e., for any month, one-twelfth of the
Pass-Through Rate) on the Classes of
Certificates to which the Appraisal
Reductions for all Mortgage Loans (and, in
the case of a Non-Serviced Mortgage
Loan, the appraisal reductions effected
under the related Non-Serviced Mortgage
Loan Pooling Agreement during the
applicable period) are allocated, weighted on
the basis of the amount of Appraisal
Reductions allocated to each such Class and
(b) the Appraisal Reduction with respect to
such Mortgage Loan with respect to
such Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than any Non-Serviced Mortgage Loan)
or Serviced Whole Loan, the earliest
of (i) the third anniversary of the date on
which the first extension of the
Maturity Date of such Mortgage Loan or
Serviced Whole Loan becomes effective as
a result of a modification of such Mortgage
Loan or Serviced Whole Loan by the
Servicer or the Special Servicer pursuant
to the terms hereof, which extension
does not decrease the amount of Monthly
Payments on such Mortgage Loan or
Serviced Whole Loan, (ii) 120 days after an
uncured delinquency (without regard
to the application of any grace period)
occurs in respect of such Mortgage Loan
or Serviced Whole Loan, (iii) the date on
which a reduction in the amount of
Monthly Payments on such Mortgage Loan or
Serviced Whole Loan, or a change in
any other material economic term of such
Mortgage Loan or Serviced Whole Loan
(other than an extension of the Maturity
Date), becomes effective as a result of
a modification of such Mortgage Loan or
Serviced Whole Loan by the Special
Servicer, (iv) 30 days after the Special
Servicer receives notice that a
receiver or similar official has been
appointed with respect to the related
Mortgaged Property, (v) immediately after
the Servicer or the Special Servicer
receives notice that a Mortgagor has
declared bankruptcy (but no later than 60
days after such declaration of bankruptcy),
(vi) 60 days after the date on which
an involuntary petition of bankruptcy is
filed with respect to a Mortgagor,
(vii) 30 days after an uncured delinquency
occurs in respect of a Balloon
Payment with respect to a Mortgage Loan or
Serviced Whole Loan unless the
Mortgagor has delivered to the Servicer
prior to such date a written refinancing
commitment reasonably satisfactory in form
and substance to the Special Servicer
which provides that such refinancing will
occur within 90 days (or 150 days,
with the consent of the Directing
Certificateholder) and (viii) immediately
after such Mortgage Loan or Serviced Whole
Loan becomes an REO Loan; provided,
however, that an Appraisal Reduction Event
shall not occur at any time when the
aggregate Certificate Balances of all
Classes of Certificates (other than the
Class A Certificates) has been reduced to
zero. The Special Servicer shall
notify the Servicer, the Trustee and the
Directing Certificateholder promptly
upon the occurrence of any of the foregoing
events.
"Appraised Value": With respect to any Mortgaged Property
(other
than the Mortgaged Property securing a
Non-Serviced Mortgage Loan), the
appraised value thereof as determined by an
Appraisal of the Mortgaged Property
securing such Mortgage Loan or Serviced
Whole Loan made by an Independent MAI
appraiser selected by the Servicer or
Special Servicer, as applicable, or in
connection with an Appraisal Reduction, a
valuation meeting the requirements of
clause (b)(i)(A)(2) of the definition of
"Appraisal Reduction." With respect to
a Non-Serviced Mortgaged Property, the
portion of the appraisal value allocable
thereto, as determined pursuant to the
related Non-Serviced Mortgage Loan
Pooling Agreement.
"Asset Status Report":
As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or
similar instrument executed by the
Mortgagor, assigning to the mortgagee all
of the income, rents and profits
derived from the ownership, operation,
leasing or disposition of all or a
portion of such Mortgaged Property, in the
form which was duly executed,
acknowledged and delivered, as amended,
modified, renewed or extended through
the date hereof and from time to time
hereafter.
"Assumed Scheduled Payment": For any Due Period and 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 Due Date occurring
in the related Due Period based on the
constant payment required by the related
Mortgage Note or the original amortization
schedule thereof or an amortization
schedule that has been recast in accordance
with the terms of the related loan
documents (as calculated with interest at
the related Mortgage Rate), if
applicable, assuming such Balloon Payment
has not become due, after giving
effect to any modification of such Mortgage
Loan, and (b) interest on the Stated
Principal Balance of such Loan at the
applicable Mortgage Rate (net of interest
at the Servicing Fee Rate, and, if
applicable, the Non-Serviced Mortgage Loan
Primary Servicing Fee Rate).
"Authenticating Agent": The Trustee or any agent of the Trustee
appointed to act as Authenticating Agent
pursuant to Section 5.01.
"Available Distribution Amount": With respect to any
Distribution
Date, an amount equal to the sum of all
payments and other collections on or
with respect to the Mortgage Loans and any
REO Properties (in the case of a
Non-Serviced Mortgage Loan, only to the
extent received by the Trustee pursuant
to the related Co-Lender Agreement),
including (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit
in
the Certificate Account and the Lower-Tier
Distribution Account (exclusive of
any investment income contained therein) as
of the close of business on the
related P&I Advance Date (including any
amounts to be transferred from a
Serviced Whole Loan Custodial Account on
such day), exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due on
a
Due Date
following the end of the related Due Period;
(ii) all amounts payable or reimbursable to any Person from the
Certificate Account pursuant to clauses (ii) through (x), (xii)
through
(xvi) and
(xix) of Section 3.05(a);
(iii) all Principal Prepayments (together with any related
payments
of
interest allocable to the period following the Due Date for the
related
Mortgage Loan during the
related Due Period), Liquidation Proceeds,
Insurance
Proceeds, Condemnation Proceeds and other unscheduled
recoveries
received
after the related Determination Date;
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier
Distribution Account pursuant to clauses (ii) and (iii) of
Section
3.05(b);
(v) Excess Interest;
(vi) [Reserved];
(vii) all Yield Maintenance Charges;
(viii) all amounts deposited in the Certificate Account and the
Lower-Tier
Distribution Account in error; and
(ix) with respect to the Interest Reserve Loans and any
Distribution
Date
relating to each Interest Accrual Period ending in (1) each
January
or (2) any
December in a year immediately preceding a year which is not a
leap year,
an amount equal to one day of interest on the Stated Principal
Balance of
such Interest Reserve Loan as of the Distribution Date
occurring
in the month preceding the month in which the related P&I
Advance
Date occurs at the related Mortgage Rate (without giving effect
to
the second
proviso of the definition thereof) minus the Administrative
Cost Rate
to the extent a full Monthly Payment or P&I Advance is made
in
respect
thereof and to the extent such amounts are to be deposited in
the
Interest
Reserve Account and held for future distribution pursuant to
Section
3.25;
(b) if and to the extent not already included in clause (a)
hereof,
the aggregate amount transferred from an
REO Account to the Certificate Account
for such Distribution Date pursuant to
Section 3.16(c) and the aggregate amount
transferred from each Serviced Whole Loan
Custodial Account to the Certificate
Account pursuant to Section 3.04(b);
(c) the aggregate amount of any P&I Advances made by the
Servicer
(or, in the case of the Fireman's Fund
Mortgage Loan, the BACM 2005-5 Servicer)
or the Trustee, as applicable, for such
Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee
Fee with respect to the Mortgage Loans
for which such P&I Advances are
made);
(d) for the Distribution Date occurring in each March, the
Withheld
Amounts remitted to the Lower-Tier
Distribution Account pursuant to Section
3.25(b); and
(e) all funds released from the Excess Liquidation Proceeds
Reserve
Account for distribution on such
Distribution Date.
Notwithstanding the investment of funds
held in the Certificate Account pursuant
to Section 3.06, for purposes of
calculating the Available Distribution Amount,
the amounts so invested shall be deemed to
remain on deposit in such account.
"B Note": The 123 North Wacker B Note, the Becker Portfolio B
Note,
the Crowne Pointe B Note, the Knox Park II
B Note or the Edenvale Business
Center B Note, as applicable.
"BACM 2005-5 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of October 1, 2005,
among Banc of America Commercial
Mortgage Inc., as depositor, Bank of
America, N.A., as master servicer, Midland
Loan Services, Inc., as special servicer,
LNR Partners, Inc., as special
servicer with respect to the 417 Fifth
Avenue Loan, LaSalle Bank National
Association, as trustee and ABN AMRO Bank
N.V., as fiscal agent, relating to the
issuance of Banc of America Commercial
Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-5,
as from time to time amended,
supplemented, modified or replaced.
"BACM 2005-5 Servicer": Bank of America, N.A., or its successor
servicer appointed pursuant to the BACM
2005-5 Pooling Agreement.
"BACM 2005-5 Special Servicer": Midland Loan Services, Inc. or
its
successor special servicer, appointed
pursuant to the BACM 2005-5 Pooling
Agreement.
"BACM 2005-5 Trustee": LaSalle Bank National Association as
trustee
under the BACM 2005-5 Pooling
Agreement.
"Balloon Loan": Any Mortgage Loan that by its original terms or
by
virtue of any modification entered into as
of the Closing Date provides for an
amortization schedule extending beyond its
Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any
date
of determination, the Monthly Payment
payable on the Maturity Date of such
Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States
Code).
"Base Interest Fraction": With respect to any Principal
Prepayment
on any Mortgage Loan and any of the Class
A-1, Class A-1D, Class A-2, Class
A-3A, Class A-3B, Class A-SB, Class A-4,
Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J
Certificates, a fraction (not greater than
1) (a) whose numerator is the greater
of zero and the amount, if any, by which
(i) the Pass-Through Rate on such Class
of Certificates exceeds (ii) the yield rate
(as provided by the Servicer) used
in calculating the Yield Maintenance Charge
with respect to such Principal
Prepayment and (b) whose denominator is the
amount, if any, by which the (i)
Mortgage Rate on such Mortgage Loan exceeds
(ii) the yield rate (as provided by
the Servicer) used in calculating the Yield
Maintenance Charge 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.
"Becker Portfolio B Note": With respect to the Becker Portfolio
Whole Loan, the related promissory note
made by the related Mortgagor and
secured by the Mortgage on the Mortgaged
Property identified as "Becker
Portfolio" and designated as Promissory
Note B, which is not included in the
Trust, which is subordinated in right of
payment to the Becker Portfolio
Mortgage Loan as provided in the Becker
Portfolio Co-Lender Agreement.
"Becker Portfolio Co-Lender Agreement": With respect to the
Becker
Portfolio Whole Loan, the related
intercreditor agreement by and between the
holders of the Becker Portfolio Mortgage
Loan and the Becker Portfolio B Note,
relating to the relative rights of such
holders of the respective Becker
Portfolio Mortgage Loan and the Becker
Portfolio B Note, as the same may be
amended from time to time in accordance
with the terms thereof.
"Becker Portfolio Mortgage Loan": With respect to the Becker
Portfolio Whole Loan, the related
promissory note made by the related Mortgagor
and secured by the Mortgage on the
Mortgaged Property identified as "Becker
Portfolio" and designated as Promissory
Note A, which is included in the Trust
and which is senior in right of payment to
the Becker Portfolio B Note as
provided in the Becker Portfolio Co-Lender
Agreement.
"Becker Portfolio Whole Loan": Collectively, the Becker
Portfolio
Mortgage Loan and the Becker Portfolio B
Note. References herein to the Becker
Portfolio Whole Loan shall be construed to
refer to the aggregate indebtedness
under the Becker Portfolio Mortgage Loan
and the Becker Portfolio B Note.
"Book-Entry Certificate": Any Rule 144A Book-Entry Certificate
or
Regulation S Book-Entry Certificate.
"Breach": As defined
in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in New York, New
York, Pennsylvania, the office of
the Certificate Registrar or any city and
state in which the Corporate Trust
Office of the Trustee or principal place of
business of the Servicer or the
Special Servicer is located, are authorized
or obligated by law or executive
order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2005-C4,
as executed and delivered by the
Certificate Registrar and authenticated and
delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts created
and
maintained by the Servicer pursuant to
Section 3.04(a) in the name of the
Trustee on behalf of the
Certificateholders, into which the amounts set forth in
Section 3.04(a) shall be deposited
directly. Any such account or accounts shall
at all times be an Eligible Account.
"Certificate Balance": With respect to any Class of
Certificates
(other than the Residual Certificates, the
Class S Certificates and the Class
X-W Certificates), (i) on or prior to the
first Distribution Date, an amount
equal to the Original Certificate Balance
of such Class as specified in the
Preliminary Statement hereto and (ii) as of
any date of determination after the
first Distribution Date, the Certificate
Balance of such Class on the
Distribution Date immediately prior to such
date of determination (determined as
adjusted pursuant to Section
1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates , the
amount of Mortgage Deferred Interest
allocated to such Class of Certificates
pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates,
as
of any date of determination, a fraction,
expressed as a decimal carried to at
least eight places, the numerator of which
is the then related Certificate
Balance, and the denominator of which is
the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry 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
Depository Participant or on the books of
an indirect participating brokerage firm
for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The
register
maintained and registrar appointed pursuant
to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the
Certificate Register; provided, however, that
solely for the purposes of giving any
consent, approval or waiver pursuant to
this Agreement, any Certificate registered
in the name of the Servicer, the
Special Servicer, the Depositor or any
Affiliate 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,
approval or waiver has been obtained, if
such consent, approval or waiver sought
from such party would in any way
increase its compensation or limit its
obligations as Servicer, Special Servicer
or the Depositor, as applicable, hereunder;
provided, however, so long as there
is no Event of Default with respect to the
Servicer or the Special Servicer, the
Servicer and Special Servicer shall be
entitled to exercise such Voting Rights
with respect to any issue which could
reasonably be believed to adversely affect
such party's compensation or increase its
obligations or liabilities hereunder;
provided further, however, that such
restrictions shall not apply to the
exercise of the Special Servicer's rights
(or the Servicer's rights, if any) or
any of their Affiliates as a member of the
Controlling Class. Additionally, for
purposes of determining if the requisite
consents of Certificateholders under
Section 11.01(b) have been obtained, any
Certificate beneficially owned by a
Mortgage Loan Seller or any of its
Affiliates shall be deemed not to be
outstanding (and shall not be considered
when determining the percentage of
Certificateholders consenting or when
calculating the total number of
Certificates entitled to consent), and the
consent rights to which such
Certificateholder would otherwise be
entitled shall not be taken into account in
determining whether the requisite consents
necessary to effect any amendment
under Section 11.01(b) have been obtained
with respect to amendments that are
significantly modifying the permitted
activities of the Trust. The Trustee shall
be entitled to request and rely upon a
certificate of the Servicer, the Special
Servicer or the Depositor in determining
whether a Certificate is registered in
the name of an Affiliate of such Person.
All references herein to "Holders" or
"Certificateholders" shall reflect the
rights of Certificate Owners as they may
indirectly exercise such rights through the
Depository and the Depository
Participants, except as otherwise specified
herein; provided, however, that the
parties hereto shall be required to
recognize as a "Holder" or
"Certificateholder" only the Person in
whose name a Certificate is registered in
the Certificate Register.
"Certification": As
defined in Section 4.02(d).
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the
Certificates bearing the same alphabetical
(and, if applicable, numerical) Class
designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1D, Class A-2,
Class
A-3A, Class A-3B, Class A-SB, Class A-4 or
Class A-1A Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1"
on
the face thereof, in the form of Exhibit
A-1 hereto.
"Class A-1 Component": One of the 25 Components of the Class
X-W
Certificates having a Notional Amount equal
to the Lower-Tier Principal Amount
of the Class LA-1 Uncertificated
Interest.
"Class A-1A Certificate": A Certificate designated as "Class
A-1A"
on the face thereof, in the form of Exhibit
A-7 hereto.
"Class A-1A Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-1A Uncertificated
Interest.
"Class A-1D Certificate": A Certificate designated as "Class
A-1D"
on the face thereof, in the form of Exhibit
A-2 hereto.
"Class A-1D Component": One of the 25 Components of the Class
X-W
Certificates having a Notional Amount equal
to the Lower-Tier Principal Amount
of the Class LA-1D Uncertificated
Interest.
"Class A-2 Certificate": A Certificate designated as "Class A-2"
on
the face thereof, in the form of Exhibit
A-3 hereto.
"Class A-2 Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-2 Uncertificated
Interest.
"Class A-3 Certificate": Either a Class A-3A Certificate or
Class
A-3B Certificate, as the context shall
require.
"Class A-3A Certificate": A Certificate designated as "Class
A-3A"
on the face thereof, in the form of Exhibit
A-4 hereto.
"Class A-3A Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-3A Uncertificated
Interest.
"Class A-3B Certificate": A Certificate designated as "Class
A-3B"
on the face thereof, in the form of Exhibit
A-5 hereto.
"Class A-3B Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-3B Uncertificated
Interest.
"Class A-SB Certificate": A Certificate designated as "Class
A-SB"
on the face thereof, in the form of Exhibit
A-6 hereto.
"Class A-SB Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-SB Uncertificated
Interest.
"Class A-SB Planned Principal Amount": The planned principal
amount
set forth on Schedule 5 hereto relating to
principal payments for the Class A-SB
Certificates.
"Class A-4 Certificate": A Certificate designated as "Class A-4"
on
the face thereof, in the form of Exhibit
A-7 hereto.
"Class A-4 Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-4 Uncertificated
Interest.
"Class A-M Certificate": A Certificate designated as "Class A-M"
on
the face thereof, in the form of Exhibit
A-9 hereto.
"Class A-M Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-M Uncertificated
Interest.
"Class A-J Certificate": A Certificate designated as "Class A-J"
on
the face thereof, in the form of Exhibit
A-10 hereto.
"Class A-J Component": One of the 25 Components of the Class
X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LA-J Uncertificated
Interest.
"Class B Certificate":
A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-11
hereto.
"Class B Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LB Uncertificated
Interest.
"Class C Certificate": A Certificate designated as "Class C" on
the
face thereof, in the form of Exhibit A-12
hereto.
"Class C Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LC Uncertificated
Interest.
"Class D Certificate": A Certificate designated as "Class D" on
the
face thereof, in the form of Exhibit A-13
hereto.
"Class D Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LD Uncertificated
Interest.
"Class E Certificate": A Certificate designated as "Class E" on
the
face thereof, in the form of Exhibit A-14
hereto.
"Class E Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LE Uncertificated
Interest.
"Class F Certificate": A Certificate designated as "Class F" on
the
face thereof, in the form of Exhibit A-15
hereto.
"Class F Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LF Uncertificated
Interest.
"Class G Certificate": A Certificate designated as "Class G" on
the
face thereof, in the form of Exhibit A-16
hereto.
"Class G Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LG Uncertificated
Interest.
"Class H Certificate": A Certificate designated as "Class H" on
the
face thereof, in the form of Exhibit A-17
hereto.
"Class H Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LH Uncertificated
Interest.
"Class J Certificate": A Certificate designated as "Class J" on
the
face thereof, in the form of Exhibit A-18
hereto.
"Class J Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LJ Uncertificated
Interest.
"Class K Certificate": A Certificate designated as "Class K" on
the
face thereof, in the form of Exhibit A-19
hereto.
"Class K Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LK Uncertificated
Interest.
"Class L Certificate": A Certificate designated as "Class L" on
the
face thereof, in the form of Exhibit A-20
hereto.
"Class L Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LL Uncertificated
Interest.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-1A Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-1D Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-3A Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-3B Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-J Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-M Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-SB Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LA-4 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LL Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LM Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LN Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LO Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LP Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LQ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class LR Certificate": A Certificate designated as "Class LR"
on
the face thereof, in the form of Exhibit
A-28 hereto.
"Class M Certificate": A Certificate designated as "Class M" on
the
face thereof, in the form of Exhibit A-21
hereto.
"Class M Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LM Uncertificated
Interest.
"Class N Certificate": A Certificate designated as "Class N" on
the
face thereof, in the form of Exhibit A-22
hereto.
"Class N Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LN Uncertificated
Interest.
"Class O Certificate": A Certificate designated as "Class O" on
the
face thereof, in the form of Exhibit A-23
hereto.
"Class O Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LO Uncertificated
Interest.
"Class P Certificate": A Certificate designated as "Class P" on
the
face thereof, in the form of Exhibit A-24
hereto.
"Class P Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LP Uncertificated
Interest.
"Class Q Certificate": A Certificate designated as "Class Q" on
the
face thereof, in the form of Exhibit A-25
hereto.
"Class Q Component": One of the 25 Components of the Class X-W
Certificates, having a Notional Amount
equal to the Lower-Tier Principal Amount
of the Class LQ Uncertificated
Interest.
"Class R Certificate": A Certificate designated as "Class R" on
the
face thereof, in the form of Exhibit A-28
hereto.
"Class S Certificate": A Certificate designated as "Class S" on
the
face thereof, in the form of Exhibit A-29
hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date
and
any Class of Regular Certificates, the
excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in
respect of such Class for the immediately
preceding Distribution Date and (ii) any
outstanding Class Unpaid Interest
Shortfall payable to such Class on such
preceding Distribution Date over (b) the
aggregate amount in respect of interest
actually distributed to such Class on
such immediately preceding Distribution
Date. The Class Unpaid Interest
Shortfall with respect to any Class of
Certificates as of the initial
Distribution Date is zero. No interest
shall accrue on Class Unpaid Interest
Shortfalls.
"Class X-W Certificate": A Certificate designated as "Class X-W"
on
the face thereof, in the form of Exhibit
A-26 hereto.
"Class X-W Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Principal
Amounts of the Uncertificated Lower-Tier
Interests as of the preceding Distribution
Date (after giving effect to the
distributions of principal and allocation
of Collateral Support Deficit on such
Distribution Date), and in the case of the
first Distribution Date, as of the
Closing Date.
"Class X-W Strip Rate": With respect to any Class of Components
for
any Distribution Date, a rate per annum
equal to (i) the Weighted Average Net
Mortgage Rate for such Distribution Date
over (ii) the Pass-Through Rates for
the Related Certificates provided, that in
no event shall any Class X-W Strip
Rate be less than zero.
"Clearstream":
Clearstream Banking, societe anonyme.
"Closing Date":
December 14, 2005.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a
successor thereto. If neither such
association nor any successor remains in
existence, "CMSA" shall be deemed to
refer to such other association or
organization as may exist whose principal
membership consists of servicers, trustees,
certificateholders, issuers,
placement agents and underwriters generally
involved in the commercial mortgage
loan securitization industry, which is the
principal such association or
organization in the commercial mortgage
loan securitization industry and whose
principal purpose is the establishment of
industry standards for reporting
transaction-specific information relating
to commercial mortgage pass-through
certificates and commercial mortgage-backed
bonds and the commercial mortgage
loans and foreclosed properties underlying
or backing them to investors holding
or owning such certificates or bonds, and
any successor to such other
association or organization. If an
organization or association described in one
of the preceding sentences of this
definition does not exist, "CMSA" shall be
deemed to refer to such other association
or organization as shall be selected
by the Servicer and reasonably acceptable
to the Trustee, the Special Servicer
and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially
in
the form of, and containing the information
called for in, the downloadable form
of the "Advance Recovery 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 Trustee and the Servicer.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"Bond Level File" available as of the
Closing Date on the CMSA Website, or 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 report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"CMSA Collateral Summary File" available as
of the Closing Date on the CMSA
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 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 as may from time to time be
promulgated as recommended by the CMSA
for commercial mortgage securities
transactions generally and, insofar as it
requires the presentation of information in
addition to that called for by the
form of the "Comparative Financial Status
Report" available as of the Closing
Date on the CMSA Website, is reasonably
acceptable to the Servicer or the
Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended by the CMSA for commercial
mortgage securities transactions
generally and, insofar as it requires the
presentation of information in
addition to that called for by the form of
the "Delinquent Loan Status Report"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable
to the Servicer or the Special Servicer, as
applicable.
"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 form for the presentation of such
information and containing such
additional information as may from time to
time be promulgated as recommended by
the CMSA for commercial mortgage securities
transactions generally and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "CMSA Financial File"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable to
the Servicer or the Special Servicer,
as applicable.
"CMSA Historical Liquidation Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Historical Liquidation Report"
available as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended by the CMSA for commercial
mortgage securities transactions
generally and, insofar as it requires the
presentation of information in
addition to that called for by the form of
the "Historical Liquidation Report"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable
to the Servicer or the Special Servicer, as
applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form
of, and containing the information
called for in, the downloadable form of the
"Historical Loan Modification and
Corrected Mortgage Loan Report" available
as of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be promulgated
as recommended by the CMSA for commercial
mortgage securities transactions
generally and, insofar as it requires the
presentation of information in
addition to that called for by the form of
the "Historical Loan Modification and
Corrected Mortgage Loan Report" available
as of the Closing Date on the CMSA
Website, is reasonably acceptable to the
Servicer or the Special Servicer, as
applicable.
"CMSA Investor Reporting Package": Collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup
File,
(ii) CMSA Loan Periodic Update File, (iii)
CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File, (vi)
CMSA Collateral Summary File and (vii)
CMSA Special Servicer Loan File;
(b) the following eleven supplemental reports: (i) CMSA
Delinquent
Loan Status Report, (ii) CMSA Historical
Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical
Liquidation Report, (iv) CMSA REO
Status Report, (v) CMSA Operating Statement
Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii)
CMSA Servicer Watch List, (viii) CMSA
NOI Adjustment Worksheet, (ix) CMSA Loan
Level Reserve/LOC Report, (x) CMSA
Advance Recovery Report and (xi) CMSA
Reconciliation of Funds Report; and
(c) such other reports as the CMSA may designate in the future,
and
which are reasonably acceptable to the
Servicer or Special Servicer, as
applicable.
"CMSA 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 as
may from time to time be promulgated as
recommended by the CMSA for commercial
mortgage securities transactions generally
and, insofar as it requires the
presentation of information in addition to
that called for by the form of the
"Loan Level Reserve/LOC Report" available
as of the Closing Date on the CMSA
Website, is reasonably acceptable to the
Servicer or the Special Servicer, as
applicable.
"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 form for
the presentation of such information
and containing such additional information
as may from time to time be
promulgated as recommended by the CMSA for
commercial mortgage securities
transactions generally and, insofar as it
requires the presentation of
information in addition to that called for
by the form of the "CMSA Loan
Periodic Update File" available as of the
Closing Date on the CMSA Website, is
reasonably acceptable to the Servicer or
the Special Servicer, as applicable,
and the Trustee.
"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 form for the presentation of such
information and containing such
additional information as may from time to
time be promulgated as recommended by
the CMSA for commercial mortgage securities
transactions generally and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "CMSA Loan Setup File"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable to
the Servicer or the Special Servicer,
as applicable, and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called
for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of
the Closing Date on the CMSA Website,
or such other form for the presentation of
such information and containing such
additional information as may from time to
time be promulgated as recommended by
the CMSA for commercial mortgage securities
transactions generally and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "NOI Adjustment Worksheet"
available as of the Closing Date on
the CMSA Website, is acceptable to the
Servicer or the Special Servicer, as
applicable.
"CMSA Operating Statement Analysis Report": A report
substantially
in the form of, and contain the information
called for in, the downloadable form
of the "Operating Statement Analysis
Report" available as of the Closing Date on
the CMSA Website or in such other form for
the presentation of such information
and containing such additional information
as may from time to time be
promulgated as recommended by the CMSA for
commercial mortgage-backed securities
transactions generally and, insofar as it
requires the presentation of
information in addition to that called for
by the form of the "Operating
Statement Analysis Report" available as of
the Closing Date on the CMSA Website,
is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"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 form for the presentation of
such information and containing such
additional information as may from time to
time be promulgated as recommended by
the CMSA for commercial mortgage securities
transactions generally and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "CMSA Property File"
available as of the Closing Date on the
CMSA Website, is reasonably acceptable to
the Servicer or the Special Servicer,
as applicable.
"CMSA Reconciliation of Funds Report": A report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Reconciliation of Funds Report"
available as of the Closing Date on the
CMSA Website, or such other final form for
the presentation of such information
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 Servicer or the Special
Servicer, as applicable.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in,
the downloadable form of the "REO
Status Report" available as of the Closing
Date on the CMSA Website, or in such
other form for the presentation of such
information and containing such
additional information as may from time to
time be promulgated as recommended by
the CMSA for commercial mortgage securities
transactions generally and, insofar
as it requires the presentation of
information in addition to that called for by
the form of the "REO Status Report"
available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the
Servicer or the Special Servicer, as
applicable.
"CMSA Servicer Watch List": For any Determination Date, a
report
substantially in the form of, and
containing the information called for in, the
downloadable form of the "Servicer Watch
List" available as of the Closing Date
on the CMSA Website, or in such other form
for the presentation of such
information and containing such additional
information as may from time to time
be promulgated as recommended by the CMSA
for commercial mortgage securities
transactions generally and, insofar as it
requires the presentation of
information in addition to that called for
by the form of the "Servicer Watch
List" available as of the Closing Date on
the CMSA Website, is reasonably
acceptable to the Servicer or Special
Servicer, as applicable.
"CMSA Special Servicer 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 CMSA Delinquent Loan
Status Report, the CMSA Historical Loan
Modification and Corrected Mortgage Loan
Report, the CMSA Historical Liquidation
Report, the CMSA REO Status Report, the
CMSA Servicer Watch List, the CMSA NOI
Adjustment Worksheet, the CMSA
Comparative Financial Status Report, the
CMSA Loan Level Reserve/LOC Report and
the CMSA Operating Statement Analysis
Report.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may
establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended from time
to
time, and applicable final or temporary
regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Co-Lender Agreement": Any of the 123 North Wacker Co-Lender
Agreement, the DDR/Macquarie Mervyn's
Portfolio Co-Lender Agreement, the Design
Center of the Americas Co-Lender Agreement,
the Fireman's Fund Co-Lender
Agreement, the Oglethorpe Mall Co-Lender
Agreement, the Becker Portfolio
Co-Lender Agreement, the Crowne Pointe
Co-Lender Agreement, the Knox Park II
Co-Lender Agreement or the Edenvale
Business Center Co-Lender Agreement, as
applicable.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The
Securities and Exchange Commission.
"Compensating Interest Payment": As defined in Section 3.19.
"Component": Any of the Class A-1 Component, the Class A-1D
Component, the Class A-2 Component, the
Class A-3A Component, the Class A-3B
Component, the Class A-SB Component, the
Class A-4 Component, the Class A-1A
Component, the Class A-M Component, the
Class A-J Component, the Class B
Component, the Class C Component, the Class
D Component, the Class E Component,
the Class F Component, the Class G
Component, the Class H Component, the Class J
Component, the Class K Component, the Class
L Component, the Class M Component,
the Class N Component, the Class O
Component, the Class P Component and the
Class Q Component.
"Condemnation Proceeds": All proceeds paid in connection with
the
full or partial condemnation of a Mortgaged
Property, to the extent such
proceeds are not applied to the restoration
of the related Mortgaged Property or
released to the Mortgagor or any tenants or
ground lessors, in accordance with
the Servicing Standard (in the case of a
Non-Serviced Mortgage Loan, to the
extent of any portion of such amounts
received by the Trustee or the Servicer
pursuant to the related Co-Lender
Agreement).
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates
(other than the Class X-W
Certificates) then outstanding that has a
then aggregate Certificate Balance at
least equal to 25% of the initial
Certificate Balance of such Class of
Certificates. As of the Closing Date, the
Controlling Class will be the Class Q
Certificates.
"Controlling Class Certificateholders": Each Holder (or
Certificate
Owner, if applicable) of a Certificate of
the Controlling Class as certified to
the Certificate Registrar from time to time
by such Holder (or Certificate
Owner).
"Corporate Trust Office": The corporate trust office of the
Trustee
is presently located at (i) with respect to
all matters other than certificate
transfers, 9062 Old Annapolis Road,
Columbia, Maryland 21045-1951, Attention:
Corporate Trust Services (CMBS) GECMC
2005-C4, telecopy number (410) 715-2380;
and (ii) with respect to certificate
transfers, Wells Fargo Center, Sixth Street
and Marquette Avenue, Minneapolis,
Minnesota 55479-0113, Attention: Corporate
Trust Services (CMBS) GECMC 2005-C4, or at
such other address as the Trustee or
Certificate Registrar may designate from
time to time by notice to the
Certificateholders, the Depositor, the
Servicer and the Special Servicer.
"Corrected Loan": Any Specially Serviced Loan that has become
current and remained current for three
consecutive Monthly Payments (for such
purposes taking into account any
modification or amendment of such Mortgage Loan
or Serviced Whole Loan), and (provided that
no additional default is foreseeable
in the reasonable judgment of the Special
Servicer) the Special Servicer has
returned servicing of such Mortgage Loan or
Serviced Whole Loan, as the case may
be, to the Servicer pursuant to Section
3.21(a).
"Credit File": As
defined in Section 2.01(d).
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted
with another Mortgage Loan.
"Cross-Collateralized Group": The Cross-Collateralized Mortgage
Loans which are cross-collateralized and
cross-defaulted with each other.
"Crowne Pointe B Note": With respect to the Crowne Pointe Whole
Loan, the related promissory note made by
the related Mortgagor and secured by
the Mortgage on the Mortgaged Property
identified as "Crowne Pointe" and
designated as Promissory Note B, which is
not included in the Trust, which is
subordinated in right of payment to the
Crowne Pointe Mortgage Loan as provided
in the Crowne Pointe Co-Lender
Agreement.
"Crowne
Pointe Co-Lender Agreement": With respect to the Crowne
Pointe Whole Loan, the related
intercreditor agreement by and between the Crowne
Pointe noteholders relating to the relative
rights of such holders of the
respective Crowne Pointe Mortgage Loan and
the Crowne Pointe B Note, as the same
may be amended from time to time in
accordance with the terms thereof.
"Crowne Pointe Mortgage Loan": With respect to the Crowne
Pointe
Whole Loan, the related promissory note
made by the related Mortgagor and
secured by the Mortgage on the Mortgaged
Property identified as "Crowne Pointe"
and designated as Promissory Note A, which
is included in the Trust and which is
senior in right of payment to the Crowne
Pointe B Note as provided in the Crowne
Pointe Co-Lender Agreement.
"Crowne Pointe Whole Loan": Collectively, the Crowne Pointe
Mortgage
Loan and the Crowne Pointe B Note.
References herein to the Crowne Pointe Whole
Loan shall be construed to refer to the
aggregate indebtedness under the Crowne
Pointe Mortgage Loan and the Crowne Pointe
B Note.
"Custodian": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.11 as a document
custodian for the Mortgage Files, which
Person shall not be the Depositor, either
of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall
be the initial Custodian.
"Cut-off Date":
December 1, 2005.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan,
Serviced Pari Passu Loan or Serviced B
Note, the outstanding principal balance
of such Mortgage Loan, Serviced Pari Passu
Loan or Serviced B Note as of the
Cut-off Date, after application of all
payments of principal due on or before
such date, whether or not received but
without regard to any prepayments
received on or prior to the Cut-off
Date.
"DBRS": Dominion Bond
Rating Service Limited.
"DDR/Macquarie Mervyn's Portfolio A Note": Collectively, the
DDR/Macquarie Mervyn's Portfolio Mortgage
Loan, the DDR/Macquarie Mervyn's
Portfolio A-2 Note and the DDR/Macquarie
Mervyn's Portfolio A-3 Note.
"DDR/Macquarie Mervyn's Portfolio A-2 Note": With respect to
the
DDR/Macquarie Mervyn's Portfolio Whole
Loan, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the related Mortgaged Property
in the original principal amount of
$106,275,000 which is not included in the
Trust and which is pari passu in right of
payment to the other DDR/Macquarie
Mervyn's Portfolio A Notes, as provided in
the DDR/Macquarie Mervyn's Portfolio
Co-Lender Agreement, as from time to time
amended, supplemented, modified or
replaced.
"DDR/Macquarie Mervyn's Portfolio A-3 Note": With respect to
the
DDR/Macquarie Mervyn's Portfolio Whole
Loan, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the related Mortgaged Property
in the original principal amount of
$45,922,500 which is not included in the
Trust and which is pari passu in right of
payment to the other DDR/Macquarie
Mervyn's Portfolio A Notes, as provided in
the DDR/Macquarie Mervyn's Portfolio
Co-Lender Agreement, as from time to time
amended, supplemented, modified or
replaced.
"DDR/Macquarie Mervyn's Portfolio Co-Lender Agreement": That
certain
intercreditor agreement, dated as of
November 29, 2005, by and among the holders
of the DDR/Macquarie Mervyn's Portfolio
Mortgage Loan and the DDR/Macquarie
Mervyn's Portfolio Pari Passu Loans, in
each case, relating to the relative
rights of such holders, as the same may be
further amended, supplemented,
modified or replaced from time to time.
"DDR/Macquarie Mervyn's Portfolio Mortgage Loan": With respect
to
the DDR/Macquarie Mervyn's Portfolio Whole
Loan, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the DDR/Macquarie Mervyn's
Portfolio Mortgaged Property in the
original principal amount of $106,275,000
which is included in the Trust and which is
pari passu in right of payment to
the other DDR/Macquarie Mervyn's Portfolio
A Notes, as provided in the
DDR/Macquarie Mervyn's Portfolio Co-Lender
Agreement, as from time to time
amended, supplemented, modified or
replaced.
"DDR/Macquarie Mervyn's Portfolio Mortgaged Property": The
property
or properties which secure the
DDR/Macquarie Mervyn's Portfolio Whole Loan.
"DDR/Macquarie Mervyn's Portfolio Pari Passu Loans": For so long
as
the DDR/Macquarie Mervyn's Portfolio
Mortgage Loan or a successor REO Mortgage
Loan with respect to the DDR/Macquarie
Mervyn's Portfolio Mortgage Loan is part
of the Mortgage Pool, the DDR/Macquarie
Mervyn's Portfolio A-2 Note and the
DDR/Macquarie Mervyn's Portfolio A-3 Note.
The DDR/Macquarie Mervyn's Portfolio
Pari Passu Loans are not included in the
Trust.
"DDR/Macquarie Mervyn's Portfolio Whole Loan": The
DDR/Macquarie
Mervyn's Portfolio Mortgage Loan, together
with the DDR/Macquarie Mervyn's
Portfolio Pari Passu Loans. References
herein to the DDR/Macquarie Mervyn's
Portfolio Whole Loan shall be construed to
refer to the aggregate indebtedness
under the DDR/Macquarie Mervyn's Portfolio
Mortgage Loan and the DDR/Macquarie
Mervyn's Portfolio Pari Passu Loans.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan
for
any twelve month period covered by an
annual operating statement for the related
Mortgaged Property, the ratio of (i) Net
Operating Income produced by the
related Mortgaged Property during such
period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon
Payment) due under such Mortgage Loan
during such period; provided that, with
respect to the Mortgage Loan indicated
on Schedule 3, which pay interest only for
a specified period of time set forth
in the related loan documents and then pay
principal and interest, the related
Monthly Payment will be calculated (for
purposes of this definition only) to
include interest and principal (based on
the amortization schedule indicated on
Schedule 3).
"Default Interest": With respect to any Mortgage Loan or
Serviced
Whole Loan which is in default pursuant to
the terms of the related loan
documents for any related Due Period, all
interest accrued in respect of such
Mortgage Loan or Serviced Whole Loan during
such Due Period provided for in the
related Mortgage Note or Mortgage as a
result of the related default (exclusive
of Late Payment Charges) that is in excess
of interest at the related Mortgage
Rate accrued on the unpaid principal
balance of such Mortgage Loan or Serviced
Whole Loan outstanding from time to time
during such Due Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent
at
least sixty days in respect of its Monthly
Payments or more than thirty 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 Mortgage or Mortgage Note
and without regard to any acceleration
of payments under the related Mortgage and
Mortgage Note.
"Defaulting Party": As
defined in Section 7.01(b).
"Deficient Valuation": With respect to any Mortgage Loan or
Serviced
Whole Loan, a valuation by a court of
competent jurisdiction of the Mortgaged
Property in an amount less than the then
outstanding principal balance of the
Mortgage Loan or Serviced Whole Loan, which
valuation results from a proceeding
initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As
defined in Section 5.01(a).
"Depositor": GE Commercial Mortgage Corporation, a Delaware
corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of
the initial Depository for purposes
of registering those Certificates that are
to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all
times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New
York and a "clearing agency" registered
pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time the Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
"Depository Rules": As
defined in Section 5.02(b).
"Design Center of the Americas A Note": Collectively, the
Design
Center of the Americas Mortgage Loan and
the Design Center of the Americas A-2
Note.
"Design Center of the Americas A-2 Note": With respect to the
Design
Center of the Americas Whole Loan, the
promissory note made by the related
Mortgagor and secured by the Mortgage on
the related Mortgaged Property in the
original principal amount of $92,500,000
which is not included in the Trust and
which is pari passu in right of payment to
the other Design Center of the
Americas A Note, as provided in the Design
Center of the Americas Co-Lender
Agreement, as from time to time amended,
supplemented, modified or replaced.
"Design Center of the Americas Co-Lender Agreement": That
certain
intercreditor agreement, dated as of
December 14, 2005, by and among the holders
of the Design Center of the Americas
Mortgage Loan and the Design Center of the
Americas Pari Passu Loan, in each case,
relating to the relative rights of such
holders, as the same may be further
amended, supplemented, modified or replaced.
"Design Center of the Americas Mortgage Loan": With respect to
the
Design Center of the Americas Whole Loan,
the promissory note made by the
related Mortgagor and secured by the
Mortgage on the Design Center of the
Americas Mortgaged Property in the original
principal amount of $92,500,000
which is included in the Trust and which is
pari passu in right of payment to
the other Design Center of the Americas A
Note, as provided in the Design Center
of the Americas Co-Lender Agreement, as
from time to time amended, supplemented,
modified or replaced.
"Design Center of the Americas Mortgaged Property": The property
or
properties which secure the Design Center
of the Americas Whole Loan.
"Design Center of the Americas Pari Passu Loan": For so long as
the
Design Center of the Americas Mortgage Loan
or a successor REO Mortgage Loan
with respect to the Design Center of the
Americas Mortgage Loan is part of the
Mortgage Pool, the Design Center of the
Americas A-2 Note. The Design Center of
the Americas Pari Passu Loan is not
included in the Trust.
"Design Center of the Americas Whole Loan": The Design Center of
the
Americas Mortgage Loan, together with the
Design Center of the Americas Pari
Passu Loan. References herein to the Design
Center of the Americas Whole Loan
shall be construed to refer to the
aggregate indebtedness under the Design
Center of the Americas Mortgage Loan and
the Design Center of the Americas Pari
Passu Loan.
"Determination Date": With respect to any Distribution Date,
the
earlier of (i) the 6th day of the month in
which such Distribution Date occurs
or, if such 6th day is not a Business Day,
the immediately preceding Business
Day and (ii) the 4th Business Day prior to
the related Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder or its designee selected
by more than 50% of the Controlling
Class Certificateholders, by Certificate
Balance, as certified by the
Certificate Registrar from time to time;
provided, however, that (i) absent such
selection, (ii) until a Directing
Certificateholder is so selected or (iii) upon
receipt by the Trustee of a notice from a
majority of the Controlling Class
Certificateholders, by Certificate Balance,
that a Directing Certificateholder
is no longer designated, the Controlling
Class Certificateholder that owns the
largest aggregate Certificate Balance of
the Controlling Class will be the
Directing Certificateholder.
"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 (other than
the sale of the REO Property
pursuant to Section 3.18), the use of such
REO Property in a trade or business
conducted by the Trust Fund or the
performance of any construction work on the
REO Property (other than the completion of
a building or improvement, where more
than 10% of the construction of such
building or improvement was completed
before default became imminent), other than
through an Independent Contractor;
provided, however, that the Trustee (or the
Special Servicer on behalf of the
Trustee) shall not be considered to
Directly Operate an REO Property solely
because the Trustee (or the Special
Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants,
enters into or renews leases, deals
with taxes and insurance or makes decisions
as to repairs or capital
expenditures with respect to such REO
Property or takes other actions consistent
with Treasury Regulations Section
1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any
State
or political subdivision thereof, any
possession of the United States or any
agency or instrumentality of any of the
foregoing (other than an instrumentality
which is a corporation if all of its
activities are subject to tax and a
majority of its board of directors is not
selected by such governmental unit),
(ii) a foreign government, any
international organization or any agency or
instrumentality of any of the foregoing,
(iii) any organization (other than
certain farmers' cooperatives described in
Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed
by Section 511 of the Code on unrelated
business taxable income), (iv) rural
electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated
by the Servicer based upon an
Opinion of Counsel that the holding of an
Ownership Interest in a Residual
Certificate by such Person may cause either
the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a
REMIC or any Person having an Ownership
Interest in any Class of Certificates
(other than such Person) to incur a
liability for any federal tax imposed under
the Code that would not otherwise be
imposed but for the Transfer of an
Ownership Interest in a Residual Certificate
to such Person. The terms "United States,"
"State" and "international
organization" shall have the meanings set
forth in Section 7701 of the Code or
successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of
Regular Certificates, the Accrued
Certificate Interest in respect of such
Class of Regular Certificates Interest
for such Distribution Date, reduced (to not
less than zero) by (i) such Class's
share of the Uncovered Prepayment Interest
Shortfall for such Distribution Date
and (ii) by any allocations to such Class
of Certificates, (other than in the
case of the Class X-W Certificates) of any
Certificate Deferred Interest for
such Distribution Date.
"Distribution Account": Collectively, the Upper-Tier
Distribution
Account, the Lower-Tier Distribution
Account and the Excess Interest
Distribution Account. The Distribution
Account shall at all times be an Eligible
Account.
"Distribution Date": The 10th day of any month or, if such 10th
day
is not a Business Day, the Business Day
immediately following, commencing in
January 2006.
"Document Defect": As
defined in Section 2.03(b).
"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 Mortgage Note on which each Monthly
Payment thereon is scheduled to be
first due, (ii) any Mortgage Loan or
Serviced Whole Loan after the Maturity Date
therefor, the day of the month set forth in
the related Mortgage Note on which
each Monthly Payment on such Mortgage Loan
had been scheduled to be first due,
and (iii) any REO Loan, the day of the
month set forth in the related Mortgage
Note on which each Monthly Payment on the
related Mortgage Loan or Serviced
Whole Loan had been scheduled to be first
due.
"Due Period": With respect to any Distribution Date and any
Mortgage
Loan or Serviced Whole Loan, the period
commencing immediately following the
Determination Date in the calendar month
preceding the month in which such
Distribution Date occurs and ending on and
including the close of business on
the Determination Date in the calendar
month in which such Distribution Date
occurs. Notwithstanding the foregoing, in
the event that the last day of a Due
Period is not a Business Day, any payments
received with respect to the Mortgage
Loan or Serviced Whole Loans relating to
such Due Period on the Business Day
immediately following such day shall be
deemed to have been received during such
Due Period and not during any other Due
Period.
"Edenvale Business Center B Note": With respect to the Edenvale
Business Center Whole Loan, the related
promissory note made by the related
Mortgagor and secured by the Mortgage on
the Mortgaged Property identified as
"Edenvale Business Center" and designated
as Promissory Note B, which is not
included in the Trust, which is
subordinated in right of payment to the Edenvale
Business Center Mortgage Loan as provided
in the Edenvale Business Center
Co-Lender Agreement.
"Edenvale Business Center Co-Lender Agreement": With respect to
the
Edenvale Business Center Whole Loan, the
related intercreditor agreement by and
between the Edenvale Business Center
noteholders relating to the relative rights
of such holders of the respective Edenvale
Business Center Mortgage Loan and the
Edenvale Business Center B Note, as the
same may be amended from time to time in
accordance with the terms thereof.
"Edenvale Business Center Mortgage Loan": With respect to the
Edenvale Business Center Whole Loan, the
related promissory note made by the
related Mortgagor and secured by the
Mortgage on the Mortgaged Property
identified as "Edenvale Business Center"
and designated as Promissory Note A,
which is included in the Trust and which is
senior in right of payment to the
Edenvale Business Center B Note as provided
in the Edenvale Business Center
Co-Lender Agreement.
"Edenvale Business Center Whole Loan": Collectively, the
Edenvale
Business Center Mortgage Loan and the
Edenvale Business Center B Note.
References herein to the Edenvale Business
Center Whole Loan shall be construed
to refer to the aggregate indebtedness
under the Edenvale Business Center
Mortgage Loan and the Edenvale Business
Center B Note.
"EDGAR": The Commission's Electronic Data Gathering and
Retrieval
System.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state
chartered depository institution or trust
company (including the Trustee) (1) if the
deposits are to be held in such
account 30 days or more, (A) the long-term
unsecured debt obligations of which
are rated at least "Aa3" by Moody's (or, if
not rated by Moody's, at least "Aa3"
or its equivalent by another nationally
recognized statistical rating agency),
(B) the long-term unsecured debt
obligations are rated at least "AA" by S&P (or
A+ by S&P if such institution's
short-term rating is at least "A-1" by S&P), (C)
to the extent that Fitch is rating a
securitization transaction into which a
Serviced Pari Passu Loan is deposited and
such account relates to the related
Serviced Whole Loan, "AA-" by Fitch, or, if
not rated by Fitch, at least "AA-"
or its equivalent by another nationally
recognized statistical rating agency and
(D) to the extent that DBRS is rating a
securitization transaction into which a
Serviced Pari Passu Loan is deposited and
such account relates to the related
Serviced Whole Loan, "AA (low)" by DBRS,
or, if not rated by DBRS, at least "AA
(low)" or its equivalent by another
nationally recognized statistical rating
agency or (2) if the deposits are to be
held in such account less than 30 days
the short-term unsecured debt obligations
of which have a short-term rating of
not less than (A) "P-1" from Moody's, or,
if not rated by Moody's, at least
"P-1" or its equivalent by another
nationally recognized statistical rating
agency (and having a combined capital and
surplus of at least $50,000,000 and
subject to supervision or examination by
federal or state authorities), (B) at
least "A-1" by S&P, (C) to the extent
that Fitch is rating a securitization
transaction into which a Serviced Pari
Passu Loan is deposited and such account
relates to the related Serviced Whole Loan,
"F-1" from Fitch, or, if not rated
by Fitch, at least "F-1" or its equivalent
by another nationally recognized
statistical rating agency and (D) to the
extent that DBRS is rating a
securitization transaction into which a
Serviced Pari Passu Loan is deposited
and such account relates to the related
Serviced Whole Loan, "R-1 (middle)" from
DBRS, or, if not rated by DBRS, at least
"R-1 (middle)" or its equivalent by
another nationally recognized statistical
rating agency, or such other account
or accounts with respect to which each of
the Rating Agencies shall have
confirmed in writing that the then current
rating assigned to any of the
Certificates (and, in the case of an
account that relates to a Serviced Whole
Loan, to any class of related Serviced Pari
Passu Loan Securities) that are
currently being rated by such Rating Agency
will not be qualified, downgraded or
withdrawn by reason thereof, (ii) a
segregated account or accounts maintained
with Deutsche Bank so long as its long-term
unsecured debt obligations are rated
at least (A) "A-1" by Moody's (or, if not
rated by Moody's, at least "Aa3" or
its equivalent by another nationally
recognized statistical rating agency), (B)
"AA" by S&P, (C) to the extent that
Fitch is rating a securitization transaction
into which a Serviced Pari Passu Loan is
deposited and such account relates to
the related Serviced Whole Loan, "A+" by
Fitch or, if not rated by Fitch, at
least "AA-" or its equivalent by another
nationally recognized statistical
rating agency and (D) to the extent that
DBRS is rating a securitization
transaction into which a Serviced Pari
Passu Loan is deposited and such account
relates to the related Serviced Whole Loan,
"AA (low)" by DBRS or, if not rated
by DBRS, at least "AA (low)" or its
equivalent by another nationally recognized
statistical rating agency, (iii) a
segregated trust account or accounts
maintained with the corporate trust
department of a federal or state chartered
depository institution or trust company
that, in either case, has a combined
capital and surplus of at least $50,000,000
and has corporate trust powers,
acting in its fiduciary capacity; provided
that, any state chartered depository
institution or trust company is subject to
regulation regarding fiduciary funds
substantially similar to 12 C.F.R. ss.
9.10(b) or (iv) an account or accounts
maintained with PNC Bank, National
Association so long as PNC Bank's long term
unsecured debt rating shall be at least
"A1" from Moody's and "A" by S&P (if the
deposits are to be held in the account for
more than 30 days) or PNC Bank's
short term deposit or short term unsecured
debt rating shall be at least "P-1"
from Moody's and "A-1" by S&P (if the
deposits are to be held in the account for
30 days or less). Eligible Accounts may
bear interest. No Eligible Account shall
be evidenced by a certificate of deposit,
passbook or other similar instrument.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer
that
is purchasing for its own account or for
the account of a Qualified
Institutional Buyer to whom notice is given
that the offer, sale or transfer is
being made in reliance on Rule 144A, (ii)
an Institutional Accredited Investor
or (iii) with respect to the Regular
Certificates (other than the ERISA
Restricted Certificates (without giving
effect to clause (b)(ii) of such
definition)), in case of ownership or
transfer of an interest in any Regulation
S Book-Entry Certificate, a Person
acquiring such interest pursuant to
Regulation S in accordance with all
applicable procedures herein.
"Environmental Assessment": A "Phase I assessment" as described
in,
and meeting the criteria of, the American
Society for Testing and Materials in
the case of Specially Serviced Loans as to
which the related Mortgaged Property
is a non-multifamily property, and
including investigation of lead based paint,
radon and asbestos.
"Environmental Insurance Policy": With respect to any Mortgage
Loan
or Serviced Whole Loan listed on Schedule
4, the insurance policy covering
damage resulting from an environmental
event that is maintained from time to
time in respect of such Mortgage Loan or
Serviced Whole Loan or the related
Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA Prohibited Holder": As defined in Section
5.02(d)(i)(A).
"ERISA Restricted Certificate": Any Class K, Class L, Class M,
Class
N, Class O, Class P or Class Q Certificate;
provided that, any such Certificate
(a) will cease to be considered an ERISA
Restricted Certificate and (b) will
cease to be subject to the transfer
restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer
of such Certificate, either (i) it is
rated in one of the four highest generic
ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would
permit transfer of such Certificate
to a Plan (in the case of clause (ii), as
evidenced by an Opinion of Counsel).
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any
Mortgagor for application toward the
payment of real estate taxes, assessments,
insurance premiums, ground lease
rents and similar items in respect of the
related Mortgaged Property, including
amounts for deposit to any reserve
account.
"Euroclear": The Euroclear System and its successors.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as
having a Revised Rate, interest
accrued on such Mortgage Loan after the
Anticipated Prepayment Date allocable to
the Excess Rate, including all interest
accrued thereon. The Excess Interest
shall not be an asset of the Lower-Tier
REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account,
accounts
or subaccounts, which may be a subaccount
of the Distribution Account, created
and maintained by the Trustee pursuant to
Section 3.04(c), which shall be
entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for the registered
Holders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2005-C4, Excess
Interest Distribution Account," and which
must be an Eligible Account or maintained
as a subaccount of an Eligible
Account. The Excess Interest Distribution
Account shall not be an asset of the
Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Liquidation Proceeds": With respect to any Mortgage Loan
or
Serviced Whole Loan, the excess of (i)
Liquidation Proceeds of that Mortgage
Loan or Serviced Whole Loan or related REO
Property net of any related
Liquidation Expenses, unpaid servicing
compensation, Advances and interest on
Advances over (ii) the amount that would
have been received if payment in full
had been made with respect to such Mortgage
Loan or Serviced Whole Loan on the
Due Date immediately following the date on
which such proceeds were received.
"Excess Liquidation Proceeds Reserve Account": The account,
accounts
or subaccount, created and maintained by
the Trustee, which may be a subaccount
of the Distribution Account, pursuant to
Section 3.04(b) in trust for the
Certificateholders, which shall be entitled
"Wells Fargo Bank, N.A., as Trustee,
for the benefit of Holders of GE Commercial
Mortgage Corporation, Mortgage
Pass-Through Certificates, Series 2005-C4,
Excess Liquidation Proceeds Reserve
Account." Any such account shall at all
times be an Eligible Account or a
subaccount of an Eligible Account. The
Excess Liquidation Proceeds Reserve
Account shall be an asset of the Lower-Tier
REMIC.
"Excess Rate": With respect to each of the Mortgage Loans
indicated
on the Mortgage Loan Schedule as having a
Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the
applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Excess Servicing Strip": With respect to any Mortgage Loan,
Serviced Pari Passu Loan, Serviced B Note
or any successor REO Loan with respect
thereto, the portion of the related
Servicing Fee calculated at an annual rate
equal to the excess, if any, of the related
Servicing Fee Rate over 0.005% (0.5
basis points) per annum, subject to
reduction by the Trustee pursuant to Section
3.11(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended
from
time to time.
"Exchange Certification": An Exchange Certification substantially
in
the form set forth in Exhibit P hereto
executed by a holder of an interest in a
Regulation S Book Entry Certificate or a
Rule 144A Book Entry Certificate, as
applicable.
"Fannie Mae": Fannie Mae or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination (made
in
accordance with the Servicing Standard) by
the Special Servicer with respect to
any Defaulted Mortgage Loan or REO Property
(other than a Mortgage Loan or REO
Property, as the case may be, that was
purchased by the related Mortgage Loan
Seller pursuant to Section 3 of the
applicable Mortgage Loan Purchase Agreement,
by the Directing Certificateholder, the
Special Servicer or the Servicer
pursuant to Section 3.18(c), by the Special
Servicer or the Servicer pursuant to
Section 9.01, by a related mezzanine lender
pursuant to a related mezzanine
intercreditor agreement or, in the case of
a Serviced Whole Loan, the holder of
any related Serviced Pari Passu Loan or
Serviced B Note or its designee pursuant
to the related Co-Lender Agreement) that
there has been a recovery of all
Insurance Proceeds and Condemnation
Proceeds, Liquidation Proceeds, REO Revenue
and other payments or recoveries that will
ultimately be recoverable.
"Fireman's Fund Note A-1": For so long as the Fireman's Fund
Mortgage Loan or a successor REO Mortgage
Loan with respect to the Fireman's
Fund Mortgage Loan is part of the Mortgage
Pool, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the related Mortgaged Property
in the original principal amount of
$99,879,692, which is not included in the
Trust and which is pari passu in right of
payment to the Fireman's Fund Mortgage
Loan, as provided in the Fireman's Fund
Co-Lender Agreement, as from time to
time amended, supplemented, modified or
replaced.
"Fireman's Fund Note A-2": For so long as the Fireman's Fund
Mortgage Loan or a successor REO Mortgage
Loan with respect to the Fireman's
Fund Mortgage Loan is part of the Mortgage
Pool, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the related Mortgaged Property
in the original principal amount of
$90,578,395, which is included in the Trust
and which is pari passu in right of payment
to the Fireman's Fund A-1 Note, as
provided in the Fireman's Fund Co-Lender
Agreement, as from time to time
amended, supplemented, modified or
replaced.
"Fireman's Fund Co-Lender Agreement": That certain
intercreditor
agreement, dated as of October 1, 2005, by
and among the holders of the
Fireman's Fund Mortgage Loan and the
Fireman's Fund Pari Passu Loan, relating to
the relative rights of such holders, as the
same may be further amended,
supplemented, modified or replaced from
time to time.
"Fireman's Fund Mortgage Loan": With respect to the Fireman's
Fund
Whole Loan, the Fireman's Fund Note A-2
made by the related Mortgagor and
secured by the Mortgage on the related
Mortgaged Property in the original
principal amount of $90,687,500, which is
included in the Trust and which is
pari passu in right of payment to the
Fireman's Fund A-1 Note, as provided in
the Fireman's Fund Co-Lender Agreement, as
from time to time amended,
supplemented, modified or replaced.
"Fireman's Fund Mortgaged Property": The property or properties
that
secure the Fireman's Fund Whole Loan.
"Fireman's Fund Pari Passu Loan": The Fireman's Fund A-1 Note.
"Fireman's Fund Whole Loan": The Fireman's Fund Mortgage Loan,
together with the Fireman's Fund Pari Passu
Loan.
"Fitch": Fitch, Inc., and its successors in interest.
"Freddie Mac": Freddie Mac or any successor thereto.
"GACC": German American Capital Corporation.
"GACC Mortgage Loans": The Mortgage Loans sold to the Depositor
by
GACC.
"GECMC 2005-C3 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of August 1, 2005,
among GE Commercial Mortgage Corporation,
as depositor, Midland Loan Services, Inc.,
as master servicer, Midland Loan
Services, Inc., as special servicer,
LaSalle Bank National Association, as
trustee and ABN AMRO Bank N.V., as fiscal
agent, relating to the issuance of
GECMC 2005-C3 Commercial Mortgage Pass
Through Certificates, as from time to
time amended, supplemented, modified or
replaced.
"GECMC 2005-C3 Servicer": Midland Loan Services, Inc., or any
successor servicer appointed pursuant to
the GECMC 2005-C3 Pooling Agreement.
"GECMC 2005-C3 Special Servicer": Midland Loan Services, Inc. or
any
successor special servicer, appointed
pursuant to the GECMC 2005-C3 Pooling
Agreement.
"GECMC 2005-C3 Trustee": LaSalle Bank National Association, as
trustee under the GECMC 2005-C3 Pooling
Agreement.
"Grantor Trust": That certain "grantor trust" (within the meaning
of
the Grantor Trust Provisions), the assets
of which are the Excess Interest
Grantor Trust Assets.
"Grantor Trust Assets": The segregated pool of assets consisting
of
the Excess Interest and the Excess Interest
Distribution Account, beneficial
ownership of which is represented by Class
S Certificates.
"Grantor Trust Provisions": Sections 671-679 of the Code and
Treasury Regulations Section
301.7701-4(c).
"Ground Lease": In the case of any Mortgage Loan for which the
related Mortgagor has a leasehold interest
in the related Mortgaged Property,
the lease agreement creating such leasehold
interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan
Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan
Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes or substances, including,
without limitation, those so
identified pursuant to CERCLA or any other
federal, state or local environmental
related laws and regulations, and
specifically including, without limitation,
asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea
formaldehyde and any substances
classified as being "in inventory," "usable
work in process" or similar
classification which would, if classified
as unusable, be included in the
foregoing definition.
"Holdback Mortgage Loan": Any Mortgage Loan as to which the
related
Mortgagor was required to escrow funds or
post a letter of credit related to
satisfying certain performance
objectives.
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent
of the Trustee, the Depositor, the
Servicer, the Special Servicer, the
Directing Certificateholder, the holder of
any Serviced Pari Passu Loan or Serviced B
Note and any and all Affiliates
thereof, (ii) does not have any material
direct financial interest in or any
material indirect financial interest in any
of the Trustee, the Depositor, the
Servicer, the Special Servicer, the
Directing Certificateholder, the holder of
any Serviced Pari Passu Loan or Serviced B
Note or any Affiliate thereof and
(iii) is not connected with the Trustee,
the Depositor, the Servicer, the
Special Servicer, the Directing
Certificateholder, the holder of any Serviced
Pari Passu Loan or Serviced B Note or any
Affiliate thereof as an officer,
employee, promoter, underwriter, trustee,
partner, director or Person performing
similar functions; provided, however, that
a Person shall not fail to be
Independent of the Trustee, the Depositor,
the Servicer, the Special Servicer,
the Directing Certificateholder, the holder
of any Serviced Pari Passu Loan or
Serviced B Note or any Affiliate thereof
merely because such Person is the
beneficial owner of 1% or less of any Class
of securities issued by the Trustee,
the Depositor, the Servicer, the Special
Servicer, the Directing
Certificateholder, the holder of any
Serviced Pari Passu Loan or Serviced B Note
or any Affiliate thereof, as the case may
be; provided, further, that such
ownership constitutes less than 1% of the
total assets owned by such Person.
"Independent Contractor": Either (i) any Person that would be
an
"independent contractor" with respect to
the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a
real estate investment trust (except
that the ownership test 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 of
Certificates, or such other interest in any
Class of Certificates as is set
forth in an Opinion of Counsel, which shall
be at no expense to the Trustee, the
Servicer, the Special Servicer, the holder
of any Serviced Pari Passu Loan or
Serviced B Note or the Trust, delivered to
the Trustee and the Servicer), so
long as the Trust does not receive or
derive any income from such Person and
provided that the relationship between such
Person and the Trust is at arm's
length, all within the meaning of Treasury
Regulations Section 1.856-4(b)(5)
(except that the Servicer or the Special
Servicer shall not be considered to be
an Independent Contractor under the
definition in this clause (i) unless an
Opinion of Counsel has been delivered to
the Trustee (and, if any Serviced Whole
Loan is affected, to the holders of any
related Serviced Pari Passu Loan or
Serviced B Note) to that effect) or (ii)
any other Person (including the
Servicer and the Special Servicer) upon
receipt by the Trustee, the Special
Servicer, the Servicer (and, if any
Serviced Whole Loan is affected, by the
holders of any Serviced Pari Passu Loan or
Serviced B Note) of an Opinion of
Counsel, which shall be at no expense to
the Trustee, the Servicer, the Special
Servicer, the Trust Fund or the holder of
any Serviced Pari Passu Loan or
Serviced B Note, 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 or cause any income realized in
respect of such REO Property to fail to
qualify as Rents from Real Property.
"Initial Certification Date": As defined in Section 2.02(b).
"Initial Purchasers": Deutsche Bank Securities Inc. and Banc of
America Securities LLC.
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan or
Serviced
Whole Loan, any hazard insurance policy,
flood insurance policy, title policy or
other insurance policy that is maintained
from time to time in respect of such
Mortgage Loan or Serviced Whole Loan or the
related Mortgaged Property.
"Insurance Proceeds": All proceeds paid under any Insurance
Policy,
to the extent such proceeds are not applied
to the restoration of the related
Mortgaged Property or released to the
Mortgagor or any tenants or ground
lessors, or, with respect to a Non-Serviced
Mortgage Loan, to the extent
received pursuant to the related Co-Lender
Agreement, in each case in accordance
with the Servicing Standard.
"Interest Accrual
Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier
Interests and any Distribution Date,
the period beginning on the first day of
the calendar month preceding the
calendar month in which the related
Distribution Date occurs and ending on the
last day of the calendar month preceding
the calendar month in which such
Distribution Date occurs, calculated
assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of
Regular
Certificates, Uncertificated Lower-Tier
Interests for any Distribution Date, an
amount equal to the sum of the
Distributable Certificate Interest and the Class
Unpaid Interest Shortfall with respect to
such Class of Regular Certificates or
the Uncertificated Lower-Tier Interests for
such Distribution Date and any
Accrued Interest From Recoveries for such
Class, to the extent not previously
paid for all prior Distribution Dates.
"Interest Reserve Account": The segregated account or
subaccount
created and maintained by the Trustee
pursuant to Section 3.25 in the name of
"Wells Fargo Bank, N.A., as Trustee, in
trust for the registered holders of GE
Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates,
Series 2005-C4, Interest Reserve Account"
or maintained as a subaccount of the
Distribution Account into which the amounts
set forth in Section 3.25 shall be
deposited directly and which must at all
times be an Eligible Account or a
subaccount of an Eligible Account.
"Interest Reserve Loans": The Actual/360 Mortgage Loans.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor
engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any
such Person.
"Investment Account":
As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Knox Park II B Note": With respect to the Knox Park II Whole
Loan,
the related promissory note made by the
related Mortgagor and secured by the
Mortgage on the Mortgaged Property
identified as "Knox Park II" and designated
as Promissory Note B, which is not included
in the Trust, which is subordinated
in right of payment to the Knox Park II
Mortgage Loan as provided in the Knox
Park II Co-Lender Agreement.
"Knox Park II Co-Lender Agreement": With respect to the Knox Park
II
Whole Loan, the related intercreditor
agreement by and between the Knox Park II
noteholders relating to the relative rights
of such holders of the respective
Knox Park II Mortgage Loan and the Knox
Park II B Note, as the same may be
amended from time to time in accordance
with the terms thereof.
"Knox Park II Mortgage Loan": With respect to the Knox Park II
Whole
Loan, the related promissory note made by
the related Mortgagor and secured by
the Mortgage on the Mortgaged Property
identified as "Knox Park II" and
designated as Promissory Note A, which is
included in the Trust and which is
senior in right of payment to the Knox Park
II B Note as provided in the Knox
Park II Co-Lender Agreement.
"Knox Park II Whole Loan": Collectively, the Knox Park II
Mortgage
Loan and the Knox Park II B Note.
References herein to the Knox Park II Whole
Loan shall be construed to refer to the
aggregate indebtedness under the Knox
Park II Mortgage Loan and the Knox Park II
B Note.
"Late Collections": With respect to any Mortgage Loan or
Serviced
Whole Loan, all amounts received thereon on
or prior to the related
Determination Date (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 Due
Period and not previously recovered. With
respect to any REO Loan, all amounts
received in connection with the related REO
Property on or prior to the related
Determination Date (including any grace
period applicable under the original
Mortgage Loan), whether as Insurance
Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues 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 Due Period and not
previously recovered. The term "Late
Collections" shall specifically exclude
Penalty Charges.
"Late Payment Charges": With respect to any Mortgage Loan or
Serviced Whole Loan, amounts due to the
Servicer (which accrued on non-Specially
Serviced Loans) or the Special Servicer
(which accrued on Specially Serviced
Loans), which represent charges for late
payments paid by a Mortgagor pursuant
to the loan documents.
"Liquidation Event": With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is
paid in full; (ii) a Final Recovery
Determination is made with respect to such
Mortgage Loan; (iii) such Mortgage
Loan (or related REO Loan) is repurchased
by the applicable Mortgage Loan Seller
pursuant to Section 3 of the related
Mortgage Loan Purchase Agreement; (iv) such
Mortgage Loan is purchased by the Directing
Certificateholder, the Special
Servicer or the Servicer pursuant to
Section 3.18(c); (v) such Mortgage Loan is
purchased by the Special Servicer or the
Servicer pursuant to Section 9.01(b) or
acquired by the Sole Certificateholder in
exchange for their Certificates
pursuant to Section 9.01(d); (vi) in the
case of a Serviced Whole Loan, such
Mortgage Loan is purchased by an applicable
holder of a Serviced B Note or its
designee pursuant to the related Co-Lender
Agreement; or (vii) such Mortgage
Loan is purchased by a related mezzanine
lender pursuant to a related mezzanine
intercreditor agreement. With respect to
any REO Property (and the related REO
Loan), any of the following events: (i) a
Final Recovery Determination is made
with respect to such REO Property or (ii)
such REO Property is purchased by the
Servicer or the Special Servicer pursuant
to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out
of pocket" costs and expenses incurred by
the Special Servicer in connection
with the liquidation of any Specially
Serviced Loan or REO Property pursuant to
Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses,
committee or referee fees and, if
applicable, brokerage commissions and
conveyance taxes).
"Liquidation Fee": Either (a) a fee payable to the Special
Servicer
with respect to each Specially Serviced
Loan or REO Property as to which the
Special Servicer receives a full, partial
or discounted payoff with respect
thereto from the related Mortgagor 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) or any Condemnation
Proceeds with respect thereto (provided,
however, that a Liquidation Fee shall not
be payable to the Special Servicer
with respect to Condemnation Proceeds
unless the Special Servicer, prior to the
related condemnation, shall have spent
significant efforts preparing the sale,
transfer or liquidation of the related
Mortgaged Property), equal to the product
of the applicable Liquidation Fee Rate and
the proceeds of such full, partial or
discounted payoff or the net Liquidation
Proceeds (net of the related costs and
expenses associated with the related
liquidation) or Condemnation Proceeds
related to such liquidated Specially
Serviced Loan or REO Property, as the case
may be; provided, however, that no
Liquidation Fee shall be payable with respect
to clauses (iii) (except where such
purchase is by any assignee of the Purchase
Option for no material consideration, such
assignee is not an affiliate of the
assignor of such Purchase Option and such
purchase occurs more than 90 days
after the date the Special Servicer has
initially determined the fair value of
such Specially Serviced Loan pursuant to
Section 3.18), (iv) (except as set
forth in clause (b) of this definition),
(v), (vi) (except where the purchase
takes place 90 or more days following the
occurrence of a Servicing Transfer
Event with respect to such Mortgage Loan)
or (vii) (except in the case where the
purchase takes place 90 or more days
following the occurrence of a Servicing
Transfer Event with respect to such
Mortgage Loan and the related intercreditor
agreement does not prohibit the payment of
such fee) of the definition of
Liquidation Proceeds or (b) a fee payable
to the Special Servicer with respect
to each Mortgage Loan that the related
Mortgage Loan Seller has repurchased
after the expiration of the 90-day period
provided for in the fourth sentence of
Section 2.03(b), equal to the product of
the applicable Liquidation Fee Rate and
the Purchase Price (excluding, for purposes
of this calculation, any amounts
included under clause (iv) of the
definition of "Purchase Price") of such
Mortgage Loan.
"Liquidation Fee Rate": With respect the Liquidation Fee referred
to
in clause (a) of the definition of
Liquidation Fee, a rate equal to 1.0%.
"Liquidation Proceeds": Cash amounts (other than Insurance
Proceeds
and Condemnation Proceeds and REO Revenues)
received by or paid to the Servicer
or the Special Servicer in connection with:
(i) the liquidation of a Mortgaged
Property, REO 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 Mortgagor in accordance with
applicable law and the terms and conditions
of the related Mortgage Note and Mortgage;
(ii) the realization upon any
deficiency judgment obtained against a
Mortgagor; (iii) the purchase of a
Defaulted Mortgage Loan by the Directing
Certificateholder, the Special Servicer
or the Servicer (or by an assignee of such
Purchase Option) pursuant to Section
3.18(c); (iv) the repurchase of a Mortgage
Loan (or related REO Loan) by the
applicable Mortgage Loan Seller pursuant to
Section 3 of the related Mortgage
Loan Purchase Agreement; (v) the purchase
of a Mortgage Loan or REO Property by
the Special Servicer or by an assignee of
such purchase option pursuant to
Section 9.01; (vi) the purchase of a
Mortgage Loan by the related mezzanine
lender pursuant to the related
intercreditor agreement; or (vii) in the case of
a Serviced Whole Loan, the purchase of the
related Mortgage Loan by the
applicable holder of a Serviced B Note or
its designee pursuant to the related
Co-Lender Agreement.
"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 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, an amount equal to the
sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b)
that portion, if any, of the Scheduled
Principal Distribution Amount for such
Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of
the Unscheduled Principal Distribution
Amount for such Distribution Date
attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution
Amount for any Distribution Date shall
be reduced by the amount of any
reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable
Advances that are paid or reimbursed from
principal collections on the Group 1
Mortgage Loans in a period during which
such principal collections would have
otherwise been included in the Loan Group
1 Principal Distribution Amount for such
Distribution Date, (ii) Workout Delayed
Reimbursement Amounts that were paid or
reimbursed from principal collections on
the Group 1 Mortgage Loans in a period
during which such principal collections
would have otherwise been included in the
Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii)
following the reimbursements
provided for in clauses (i) and (ii) above,
the excess, if any of (A) the total
amount of Nonrecoverable Advances, plus
interest on such Nonrecoverable
Advances, and Workout-Delayed Reimbursement
Amounts, that would have been paid
or reimbursed from principal collections on
the Group 2 Mortgage Loans as
provided for in clauses (i) and (ii) of the
definition of "Loan Group 2
Principal Distribution Amount" had the Loan
Group 2 Principal Distribution
Amount been sufficient to make such
reimbursements in full, over (B) the Loan
Group 2 Principal Distribution Amount
(prior to giving effect to clauses (i),
(ii) and (iii) of the definition of "Loan
Group 2 Principal Distribution
Amount") for that Distribution Date
(provided, further, that, with respect to
the amounts identified in clauses (i), (ii)
and (iii) above, if any of such
amounts reimbursed from principal
collections on the Group 1 Mortgage Loans are
subsequently recovered on the related
Mortgage Loan, such recovery will be
applied to increase the Loan Group 1
Principal Distribution Amount for the
Distribution Date related to the period in
which such recovery occurs).
"Loan Group 1 Principal Shortfall": For any Distribution Date
after
the initial Distribution Date, the amount,
if any, by which (a) the lesser of
(i) the Loan Group 1 Principal Distribution
Amount for the prior Distribution
Date and (ii) the Certificate Balance of
the Class A Certificates (other than
the Class A-1A Certificates), exceeds (b)
the aggregate amount distributed in
respect of principal on the Class A
Certificates (other than the Class A-1A
Certificates) on the preceding Distribution
Date. The Loan Group 1 Principal
Shortfall for the initial Distribution Date
will be zero.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor
REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, an amount equal to the
sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b)
that portion, if any, of the Scheduled
Principal Distribution Amount for such
Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of
the Unscheduled Principal Distribution
Amount for such Distribution Date
attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution
Amount for any Distribution Date shall
be reduced by the amount of any
reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable
Advances that are paid or reimbursed from
principal collections on the Group 2
Mortgage Loans in a period during which
such principal collections would have
otherwise been included in the Loan Group
2 Principal Distribution Amount for such
Distribution Date, (ii) Workout Delayed
Reimbursement Amounts that were paid or
reimbursed from principal collections on
the Group 2 Mortgage Loans in a period
during which such principal collections
would have otherwise been included in the
Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii)
following the reimbursements
provided for in clauses (i) and (ii) above,
the excess, if any of (A) the total
amount of Nonrecoverable Advances, plus
interest on such Nonrecoverable Advances
and Workout-Delayed Reimbursement Amounts
that would have been paid or
reimbursed from principal collections on
the Group 1 Mortgage Loans as provided
for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal
Distribution Amount" had the Loan Group 1
Principal Distribution Amount been
sufficient to make such reimbursements in
full, over (B) the Loan Group 1
Principal Distribution Amount (prior to
giving effect to clauses (i), (ii) and
(iii) of the definition of "Loan Group 1
Principal Distribution Amount") for
that Distribution Date (provided, further,
that, with respect to the amounts
identified in clauses (i), (ii) and (iii)
above, if any of such amounts
reimbursed from principal collections on
the Group 2 Mortgage Loans are
subsequently recovered on the related
Mortgage Loan, such recovery will be
applied to increase the Loan Group 2
Principal Distribution Amount for the
Distribution Date related to the period in
which such recovery occurs).
"Loan Group 2 Principal Shortfall": For any Distribution Date
after
the initial Distribution Date, the amount,
if any, by which (a) the lesser of
(i) the Loan Group 2 Principal Distribution
Amount for the prior Distribution
Date and (ii) the Certificate Balance of
the Class A-1A Certificates, exceeds
(b) the aggregate amount distributed in
respect of principal on the Class A-1A
Certificates on the preceding Distribution
Date. The Loan Group 2 Principal
Shortfall for the initial Distribution Date
will be zero.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of
any
date of determination, the fraction,
expressed as a percentage, the numerator of
which is the scheduled principal balance of
such Loan at the time of
determination, and the denominator of which
is the Original Value of the related
Mortgaged Property.
"Lower-Tier Distribution Account": The segregated account,
accounts
or subaccount created and maintained by the
Trustee pursuant to Section 3.04(b)
in trust for the Certificateholders, which
shall be entitled "Wells Fargo Bank,
N.A., as Trustee, in trust for the
registered Holders of GE Commercial Mortgage
Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2005-C4,
Lower-Tier Distribution Account" or
maintained as a subaccount of the
Distribution Account. Any such account or
accounts shall be an Eligible Account
or a subaccount of an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": The principal amount of any
Uncertificated Lower-Tier Interest
outstanding as of any date of determination.
With respect to any Class of Uncertificated
Lower-Tier Interests, (i) on or
prior to the first Distribution Date, an
amount equal to the Original Lower-Tier
Principal Amount of such Class as specified
in the Preliminary Statement hereto,
and (ii) as of any date of determination
after the first Distribution Date, as
permanently reduced by all distributions of
principal deemed to have been made
in respect of such Class of Uncertificated
Lower-Tier Interests on such
Distribution Date pursuant to Section
4.01(b), any Collateral Support Deficit
allocated thereto pursuant to Section 4.04,
and as adjusted for any Certificate
Deferred Interest pursuant to Section 4.06
(but not less than zero).
"Lower-Tier REMIC": One of two separate REMICs comprising the
Trust
Fund, the assets of which consist of the
Mortgage Loans (exclusive of Excess
Interest), any REO Property (to the extent
of the Trust Fund's interest therein)
or beneficial interest in a Mortgaged
Property acquired under a Non-Serviced
Mortgage Loan Pooling Agreement with
respect thereto, such amounts as shall from
time to time be held in the Certificate
Account, the REO Accounts (to the extent
of the Trust Fund's interest therein), if
any, the Interest Reserve Account, the
Excess Liquidation Proceeds Reserve
Account, if any, and the Lower-Tier
Distribution Account, 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 Controlling Class Certificateholder": As of any date,
the
Controlling Class Certificateholder owning
a majority of the Percentage
Interests in the Controlling Class.
"Material Breach": As defined in Section 2.03(b).
"Material Document Defect": As defined in Section 2.03(b).
"Maturity Date": With respect to any Mortgage Loan or Serviced
Whole
Loan as of any date of determination, the
date on which the last payment of
principal is due and payable under the
related Mortgage 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 Whole Loan by
reason of default thereunder or (ii) any
grace period permitted by the related
Mortgage Note.
"MERS": Mortgage Electronic Registration System, Inc.
"Mezz Cap B Note": Any of the Crowne Pointe B Note, the Knox Park
II
B Note or the Edenvale Business Center B
Note.
"Monthly Payment": With respect to any Mortgage Loan, Serviced
B
Note, Serviced Pari Passu Loan or
Non-Serviced Pari Passu Loan, the scheduled
monthly payment of principal and/or
interest on such Mortgage Loan, Serviced B
Note, Serviced Pari Passu Loan or
Non-Serviced Pari Passu Loan, including any
Balloon Payment, which is payable by a
Mortgagor from time to time under the
related Mortgage Note (as such terms may be
changed or modified in connection
with a bankruptcy, insolvency or similar
proceeding or by reason of any
modification or waiver pursuant to Section
3.20) and applicable law, without
regard to any acceleration of principal of
such Mortgage Loan, Serviced B Note,
Serviced Pari Passu Loan or Non-Serviced
Pari Passu Loan by reason of default
thereunder and without respect to any
Excess Interest.
"Moody's": Moody's Investors Service, Inc., and its successors
in
interest.
"Mortgage": With respect to any Mortgage Loan, Serviced B Note,
Serviced Pari Passu Loan or Non-Serviced
Pari Passu Loan, the mortgage, deed of
trust or other instrument securing a
Mortgage Note and creating a lien on the
fee or leasehold interest in the related
Mortgaged Property and, with respect to
certain Mortgage Loan, Serviced B Note,
Serviced Pari Passu Loan or Non-Serviced
Pari Passu Loan and certain relevant terms
which are not specified in the
mortgage or deed of trust, the loan
agreement for such Mortgage Loan, Serviced B
Note, Serviced Pari Passu Loan or
Non-Serviced Pari Passu Loan.
"Mortgage Deferred Interest": With respect to any Mortgage
Loan,
Serviced B Note, Serviced Pari Passu Loan
or Non-Serviced Pari Passu Loan as of
any Due Date that has been modified to
reduce the rate at which interest is paid
currently below the Mortgage Rate and
capitalize the amount of such interest
reduction, the excess, if any, of (a)
interest accrued on the Stated Principal
Balance thereof during the one-month
interest accrual period set forth in the
related Mortgage Note at the related
Mortgage Rate over (b) the interest portion
of the related Monthly Payment, as so
modified or reduced, or, if applicable,
Assumed Scheduled Payment due on such Due
Date.
"Mortgage File": With respect to any Mortgage Loan or Serviced
Whole
Loan, the following documents collectively
(which in the case of a Serviced
Whole Loan, except for the Mortgage Note
referred to in clause (i) of this
definition, relate to the entire Serviced
Whole Loan):
(i) (A) the original Mortgage Note, or a lost note affidavit with
a
customary
indemnification provision with a copy of the Mortgage Note
bearing,
or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment
from the
originator
of the Mortgage Loan to the applicable Mortgage Loan Seller (or
the most
recent endorsee), and further endorsed (at the direction of the
Depositor
given pursuant to the applicable Mortgage Loan Purchase
Agreement), on its face or by allonge attached thereto, without
recourse,
to the
order of the Trustee in blank or in the following form: "Pay to
the
order of
Wells Fargo Bank, N.A., as Trustee for the holders of GE
Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2005-C4, without recourse, representation
or
warranty,
express or implied"; and (B) in the case of each Serviced Pari
Passu Loan
or a Serviced B Note, a copy of the executed Mortgage Note for
such
Serviced Pari Passu Loan or Serviced B Note;
(ii) an original or copy of the Mortgage and originals or copies
of
any
intervening assignments thereof showing a complete chain of
assignment
from the
originator of the Mortgage Loan or Serviced Whole Loan to the
applicable
Mortgage Loan Seller (or the most recent assignee of record),
in each
case with evidence of recording indicated thereon;
(iii) subject to the provisos at the end of this paragraph, an
original
assignment of the Mortgage, in recordable form, executed by the
Mortgage
Loan Seller (or the most recent assignee of record) in blank or
to "Wells
Fargo Bank, N.A., as Trustee for the holders of GE Commercial
Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates,
Series
2005-C4; provided, if the related Mortgage has been recorded in
the
name of
Mortgage Electronic Registration System, Inc. ("MERS") or its
designee,
no Assignment of Mortgage in favor of the Trustee will be
required
to be prepared or delivered and instead, the Mortgage Loan
Seller
shall take
all actions as are necessary to cause the Trustee, on behalf of
the
Certificateholders, to be shown as (and the Trustee shall take
all
necessary
actions to confirm that it is shown as) the owner of the
related
Mortgage
Loan on the records of MERS for purposes of the system of
recording
transfers of beneficial ownership of mortgages maintained by
MERS";
(iv) an original or copy of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage) and the originals or
copies of
any intervening assignments thereof showing a complete chain of
assignment
from the originator of the Mortgage Loan or Serviced Whole Loan
to the
applicable Mortgage Loan Seller, in each case with evidence of
recording
thereon;
(v) an original assignment of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage), in recordable form,
executed
by the applicable Mortgage Loan Seller (or the most recent
assignee
of record) in blank or to "Wells Fargo Bank, N.A., as Trustee
for
the
holders of GE Commercial Mortgage Corporation, Commercial
Mortgage
Pass-Through
Certificates, Series 2005-C4," provided, if the related
assignment
of Assignment of Leases has been recorded in the name of MERS
or its
designee, no assignment of Assignment of Leases in favor of the
Trustee
will be required to be prepared or delivered and instead, the
Mortgage
Loan Seller shall take all actions as are necessary to cause
the
Trustee,
on behalf of the Certificateholders, to be shown as (and the
Trustee
shall take all necessary actions to confirm that it is shown
as)
the owner
of the related assignment of Assignment of Leases on the
records
of MERS
for purposes of the system of recording transfers of beneficial
ownership
of assignments of assignment of leases maintained by MERS;
(vi) an original or copy of any related Security Agreement
and/or
loan
agreement (if such item is a document separate from the Mortgage)
and
the
originals or copies of any intervening assignments thereof showing
a
complete
chain of assignment from the originator of the Mortgage Loan or
Serviced
Whole Loan to the applicable Mortgage Loan Seller, in each case
with
evidence of recording thereon (if recording is necessary to
protect
the rights
of the secured party);
(vii) an original assignment of any related Security Agreement
and/or
loan agreement (if such item is a document separate from the
Mortgage),
in recordable form (if recording is necessary to protect the
rights of
the secured party), executed by the applicable Mortgage Loan
Seller (or
the most recent assignee of record) to "Wells Fargo Bank, N.A.,
as Trustee
for the holders of GE Commercial Mortgage Corporation,
Commercial
Mortgage Pass-Through Certificates, Series 2005-C4," provided,
if the
related Security Agreement has been recorded in the name of MERS
or
its
designee, no assignment of Security Agreement in favor of the
Trustee
will be
required to be prepared or delivered and instead, the Mortgage
Loan
Seller shall take all actions as are necessary to cause the
Trustee,
on behalf
of the Certificateholders, to be shown as (and the Trustee
shall
take all
necessary actions to confirm that it is shown as) the owner of
the
related assignment of Security Agreement on the records of MERS
for
purposes
of the system of recording transfers of beneficial ownership of
security
agreements maintained by MERS;
(viii) originals (with respect to the Mortgage Note) or copies
of
all
consolidation, assumption, modification, written assurance and
substitution agreements, with evidence of recording thereon,
where
appropriate, in those instances where the terms or provisions of
the
Mortgage,
Mortgage Note or any related security document have been
consolidated or modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof
in
connection with the Mortgage Loan, together with all endorsements
or
riders
that were issued with or subsequent to the issuance of such
policy,
insuring
the priority of the Mortgage as a first lien on the Mortgagor's
interest
in the Mortgaged Property, or if the policy has not yet been
issued, an
original or copy of a marked-up written commitment, interim
binder or
the pro forma title insurance policy marked as binding and
countersigned by the issuer or its authorized agent either on its
face or
by an
acknowledged closing instruction or escrow letter;
(x) the original or, to the extent the Servicer has the original,
a
copy of
any guaranty of the obligations of the Mortgagor under the
Mortgage
Loan and any intervening assignments;
(xi) all UCC Financing Statements (other than UCC-3 assignments
to
the
Trustee) and continuation statements or copies thereof, as filed,
or
in form
that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing acceptable to the
Trustee
sufficient
to perfect (and maintain the perfection of) the security
interest
held by the originator of the Mortgage Loan (and each assignee
of
record
prior to the Trustee) in and to the personalty of the Mortgagor
at
the
Mortgaged Property, and to transfer such security interest to
the
Trustee,
or alternatively, a UCC acknowledgement form, UCC search from a
reputable
search firm, printout from UCC 11, or printouts from on-line
confirmations; provided, if the related UCC Financing Statement has
been
recorded
in the name of MERS or its designee, no UCC Financing Statement
in favor
of the Trustee will be required to be prepared or delivered and
instead,
the Mortgage Loan Seller shall take all actions as are
necessary
to cause
the Trustee, on behalf of the Certificateholders, to be shown
as
(and the
Trustee shall take all necessary actions to confirm that it is
shown as)
the owner of the related UCC Financing Statement on the records
of MERS
for purposes of the system of recording transfers of beneficial
ownership
of UCC financing statements maintained by MERS;
(xii) all UCC Financing Statements (including financing
statements
in lieu of
continuation statements and UCC-3 financing statements) in
favor of
the Trustee in form that is complete and suitable for filing or
recording,
as appropriate, acceptable to the Trustee sufficient to assign
the security
interest held by the originator of the Mortgage Loan or
Serviced
Whole Loan or its assignee, or alternatively if the UCC
Financing
Statements
in favor of the Trustee have been filed or recorded, a UCC
acknowledgement form, UCC search from a reputable search firm,
printout
from UCC
11, or printouts from on-line confirmations;
(xiii) the original power of attorney or a copy thereof (with
evidence
of recording thereon) granted by the Mortgagor if the Mortgage,
Mortgage
Note or other document or instrument referred to above was not
signed by
the Mortgagor;
(xiv) with respect to the Mortgage Loans with Additional Debt
listed
on
Schedule 2 hereto, an original or copy of the subordination
agreement
(if any),
pursuant to which such Additional Debt will be fully
subordinated to such Mortgage Loan;
(xv) with respect to any Mortgage Loan secured by a ground lease,
an
original
or copy of the related ground lease;
(xvi) an original or copy of any escrow agreement;
(xvii) the appropriate assignment documentation related to any
letter of
credit securing such Mortgage Loan;
(xviii) with respect to hospitality properties, a copy of the
franchise
agreement, an original copy of the comfort letter and any
transfer
documents with respect to such comfort letter, if any;
(xix) the original (or copy, if the original is held by the
Servicer
pursuant to Section 2.01(b)) of
any letter of credit for the benefit of
the lender
securing such Mortgage Loan;
(xx) the original of any cash management or similar agreement
executed
by the Mortgagor under the Mortgage Loan;
(xxi) in the case of any Serviced Whole Loan, a copy of the
related
Co-Lender
Agreement;
(xxii) with respect to any Mortgage Loan subject to a mezzanine
loan, an
original or copy of any related mezzanine intercreditor
agreement;
(xxiii) a copy of the related Mortgage Loan Checklist; and
(xxiv) with respect to a Non-Serviced Mortgage Loan, a copy of
the
related
Non-Serviced Mortgage Loan Pooling Agreement;
provided, however, that whenever the term
"Mortgage File" is used to refer to
documents held by the Trustee, or a
Custodian appointed thereby, such term shall
not be deemed to include such documents and
instruments required to be included
therein unless they are actually received
by the Trustee or a Custodian
appointed thereby.
With respect to a Non-Serviced Mortgage Loan, the preceding
document
delivery requirements will be met by the
delivery by the applicable Mortgage
Loan Seller of copies of the documents
specified above (other than the Mortgage
Note (and all intervening endorsements)
evidencing such Non-Serviced Mortgage
Loan, with respect to which the originals
shall be required), including a copy
of the Mortgage securing a Non-Serviced
Mortgage Loan.
"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. As used herein, the term "Mortgage
Loan" includes the related Mortgage
Note, Mortgage and other documents
contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Checklist": The table of contents provided by
each
Mortgage Loan Seller with each closing
binder delivered to the Trustee pursuant
to Section 2.02.
"Mortgage Loan Purchase Agreement": Each of the agreements
between
the Depositor and each Mortgage Loan
Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title
and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of
the Trust Fund, attached hereto as
Exhibit B, which list sets forth the
following information with respect to each
Mortgage Loan:
(i) the loan I.D. number (as specified in Annex A to the
Prospectus);
(ii) the Sponsor's name (as specified in Annex A to the
Prospectus);
(iii) the street address (including city, state and zip code) of
the
related
Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity or Anticipated
Prepayment
Date, (b) remaining term to stated maturity or Anticipated
Prepayment
Date and (c) Maturity Date or Anticipated Prepayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following
the Cut-off Date;
(xi) the applicable Administrative Cost Rate;
(xii) the applicable Servicing Fee Rate;
(xiii) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(xiv) whether such Mortgage Loan has an Anticipated Prepayment
Date;
(xv) the Revised Rate of such Mortgage Loan, if any;
(xvi) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvii) identifying any Mortgage Loans with which such Mortgage
Loan
is
cross-defaulted or cross-collateralized;
(xviii) the originator of such Mortgage Loan;
(xix) whether such Mortgage Loan's Principal Balance is secured by
a
letter of
credit (excluding any letter of credit provided in lieu of cash
reserves);
(xx) whether such Mortgage Loan secures a hospitality property;
and
(xxi) the applicable Loan Group, if any, to which such Mortgage
Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate
of
the amounts described under clause (vii)
above for all of the Mortgage Loans.
Such list may be in the form of more than
one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) General Electric Capital
Corporation, a Delaware corporation or its
respective successors in interest,
(2) Bank of America, N.A., a national
banking association, or its respective
successors in interest and (3) German
American Capital Corporation, a Maryland
corporation, or its respective successors
in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a
Mortgage Loan, Serviced Pari Passu Loan or
Serviced B Note, together with any rider,
addendum or amendment thereto.
"Mortgage Pool": All of the Mortgage Loans and any successor
REO
Loans, collectively. The Mortgage Pool does
not include any Pari Passu Loan, B
Note, or the portion of any REO Loan
related to any such Pari Passu Loan or B
Note.
"Mortgage Rate": With respect to: (i) any Mortgage Loan,
Serviced
Pari Passu Loan or Serviced B Note (or
successor REO Loan) on or prior to its
Maturity Date, the annual rate at which
interest is scheduled (in the absence of
a default) to accrue on such Mortgage Loan,
Serviced Pari Passu Loan or Serviced
B Note from time to time in accordance with
the related Mortgage Note and
applicable law, exclusive of the Excess
Rate or any default rate; (ii) any
Mortgage Loan, Serviced Pari Passu Loan or
Serviced B Note (or successor REO
Loan) after its Maturity Date, the annual
rate described in clause (i) above
determined without regard to the passage of
such Maturity Date; provided,
however, that if any Mortgage Loan does not
accrue interest on the basis of a
360-day year consisting of twelve 30-day
months, then, solely for purposes of
calculating Pass-Through Rates, the
Mortgage Rate of such Mortgage Loan for any
one-month period preceding a related Due
Date 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 (exclusive of Default Interest
or Excess Interest) in respect of such
Mortgage Loan during such one-month
period at the related Mortgage Rate;
provided, however, that with respect to
each Interest Reserve Loan, the Mortgage
Rate for the one month period (A)
preceding the Due Dates that occur in
January and February in any year which is
not a leap year or preceding the Due Date
that occurs in February in any year
which is a leap year will be determined
exclusive of the Withheld Amounts from
that month and (B) preceding the Due Date
in March will be determined inclusive
of amounts withheld from the immediately
preceding February and, if applicable,
January.
"Mortgaged Property": The fee or leasehold interest, as
applicable,
in the real property subject to the lien of
a Mortgage together with
improvements thereon.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has
acquired the related Mortgaged Property
and assumed the obligations of the original
obligor under the Mortgage Note.
"Net Investment Earnings": With respect to either the
Certificate
Account, Serviced Whole Loan Custodial
Account or any REO Account for any
specified period of determination, the
specified amount, if any, by which the
aggregate of all interest and other income
realized during such period on funds
relating to the Trust Fund held in such
account, exceeds the aggregate of all
losses, if any, incurred during such period
in connection with the investment of
such funds in accordance with Section
3.06.
"Net Investment Loss": With respect to either the Certificate
Account, Serviced Whole Loan Custodial
Account or any REO Account for any
specified period of determination, the
specified amount by which the aggregate
of all losses, if any, incurred during such
period in connection with the
investment of funds relating to the Trust
Fund held in such account in
accordance with Section 3.06, exceeds the
aggregate of all interest and other
income realized during such period on such
funds.
"Net Mortgage Rate": With respect to any Mortgage Loan (or
related
REO Loan), as of any date of determination,
a rate per annum equal to the
related Mortgage Rate in effect from time
to time, minus the Administrative Cost
Rate; provided, however, that for purposes
of calculating Pass-Through Rates,
the Net Mortgage Rate for any Mortgage Loan
will be determined without regard to
any modification, waiver or amendment of
the terms of such Mortgage Loan,
whether agreed to by the Servicer or
resulting from a bankruptcy, insolvency or
similar proceeding involving the
Mortgagor.
"Net
Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net
Operating Income will be calculated in
accordance with the standard definition of
"Net Operating Income" endorsed and
put forth by the Mortgage Bankers
Association and the CMSA.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer on behalf of the
Trust, including any lease renewed,
modified or extended on behalf of the Trust
and, in the case of a Serviced Whole
Loan, the holders of any related Serviced
Pari Passu Loan or Serviced B Note, if
the Trust has the right to renegotiate the
terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of a
Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the
Trustee, as applicable, will not be
ultimately recoverable, together with any
accrued and unpaid interest thereon,
from Late Collections or any other recovery
on or in respect of such Mortgage
Loan or REO Loan. The determination by the
Servicer or the Trustee, as
applicable, that it has made a
Nonrecoverable P&I Advance or that any proposed
P&I Advance, if made, would constitute
a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate
delivered to the Trustee, the Directing
Certificateholder and the Depositor, in the
case of the Servicer, and to the
Depositor and the Directing
Certificateholder, in the case of the Trustee. The
Officer's Certificate shall set forth such
determination of nonrecoverability
and the considerations of the Servicer or
the Trustee, as applicable, forming
the basis of such determination (which
shall include but shall not be limited to
information, to the extent available, such
as related income and expense
statements, rent rolls, occupancy status,
property inspections, and shall
include an Appraisal of the related
Mortgage Loan or Mortgaged Property, the
cost of which Appraisal shall be advanced
by the Servicer as a Servicing
Advance). In making such recoverability
determination, the Servicer and the
Trustee, as applicable, will be entitled to
(i) consider (among other things)
the obligations of the Mortgagor under the
terms of the related Mortgage Loan as
it may have been modified, to consider
(among other things) the related
Mortgaged Properties in their "as is" or
then current conditions, including
then-current occupancies, as modified by
such party's assumptions (consistent
with the Servicing Standards in the case of
the Servicer) regarding the
possibility and effects of future adverse
change with respect to such Mortgaged
Properties, to estimate and consider (among
other things) future expenses and to
estimate and consider (consistent with the
Servicing Standards in the case of
the Servicer and the Special Servicer)
(among other things) the timing of
recoveries, and (ii) give due regard to the
existence of any Nonrecoverable
Advance or Workout-Delayed Reimbursement
Amount with respect to other Mortgage
Loans, the recovery of which, at the time
of such consideration, is being
deferred or delayed by the Servicer or the
Trustee, as applicable, in light of
the fact that proceeds on the related
Mortgage Loan are a source of recovery not
only for the P&I Advance under
consideration, but also as a potential source of
recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount
which is being or may be deferred or
delayed. The Trustee shall be entitled to
conclusively rely on the Servicer's
determination that a P&I Advance is or would
be nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made in respect of a
Mortgage Loan (other than a
Non-Serviced Mortgage Loan) or Serviced
Whole Loan or REO Property which, in the
reasonable judgment of the Servicer
(determined in accordance with the Servicing
Standard), the Trustee or the Special
Servicer, as the case may be, will not be
ultimately recoverable, together with any
accrued and unpaid interest thereon,
from Late Collections or any other recovery
on or in respect of such Mortgage
Loan or Serviced Whole Loan or REO
Property. The determination by the Servicer,
the Trustee or the Special Servicer, as the
case may be, that it has made a
Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if
made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to the
Trustee, the Special Servicer, the
Directing Certificateholder and the
Depositor (and in the case of a Serviced
Whole Loan, the holders of any related
Serviced Pari Passu Loan or Serviced B
Note), in the case of the Servicer, and to
the Depositor and the Directing
Certificateholder (and in the case of a
Serviced Whole Loan, the holders of any
related Serviced Pari Passu Loan or
Serviced B Note) in the case of the Trustee
and the Special Servicer. The Officer's
Certificate shall set forth such
determination of nonrecoverability and the
considerations of the Servicer, the
Trustee or the Special Servicer, as
applicable, forming the basis of such
determination (which shall include but
shall not be limited to information, to
the extent available, such as related
income and expense statements, rent rolls,
occupancy status and property inspections
and shall include an Appraisal of the
related Mortgaged Property, the cost of
which Appraisal shall be advanced by the
Servicer as a Servicing Advance). In making
such recoverability determination,
the Servicer, the Special Servicer and the
Trustee, as applicable, will be
entitled to (i) consider (among other
things) only the obligations of the
Mortgagor under the terms of the related
Mortgage Loan as it may have been
modified, to consider (among other things)
the related Mortgaged Properties in
their "as is" or then current conditions
and occupancies, as modified by such
party's assumptions (consistent with the
Servicing Standards in the case of the
Servicer and the Special Servicer)
regarding the possibility and effects of
future adverse change with respect to such
Mortgaged Properties, to estimate and
consider (among other things) future
expenses and to estimate and consider
(consistent with the Servicing Standards in
the case of the Servicer and the
Special Servicer) (among other things) the
timing of recoveries, and (ii) give
due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other
Mortgage Loans, the recovery of
which, at the time of such consideration,
is being deferred or delayed by the
Servicer or the Trustee, as applicable, in
light of the fact that proceeds on
the related Mortgage Loan are a source of
recovery not only for the Servicing
Advance under consideration, but also as a
potential source of recovery of such
Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is being or
may be deferred or delayed. The Trustee
shall be entitled to conclusively rely
on the Servicer's and the Special
Servicer's determination that a Servicing
Advance is or would be nonrecoverable.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class X-W, Class F,
Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class
P, Class Q, Class S, Class R or Class
LR Certificate.
"Non-Serviced Mortgage Loan": Any of the Fireman's Fund
Mortgage
Loan or the Oglethorpe Mall Mortgage
Loan.
"Non-Serviced Mortgage Loan Pooling Agreement": With respect to
the
Fireman's Fund Mortgage Loan, the BACM
2005-5 Pooling Agreement; and with
respect to the Oglethorpe Mall Mortgage
Loan, the GECMC 2005-C3 Pooling
Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee": With respect
to
a Non-Serviced Mortgage Loan, the servicer
fee applicable to such Non-Serviced
Mortgage Loan as provided in the related
Non-Serviced Mortgage Loan Pooling
Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee Rate": The rate
at
which the Non-Serviced Mortgage Loan
Primary Servicing Fee accrues, as set forth
in the Non-Serviced Mortgage Loan Pooling
and Servicing Agreement, which is a
rate per annum equal to 0.02%.
"Non-Serviced Mortgage Loan Servicer": Any of the BACM 2005-5
Servicer and/or the GECMC 2005-C3 Servicer,
as the context may require.
"Non-Serviced Mortgage Loan Special Servicer": Any of the BACM
2005-5 Special Servicer and/or the GECMC
2005-C3 Special Servicer, as the
context may require.
"Non-Serviced Mortgage Loan Trustee": Any of the BACM 2005-5
Trustee
and/or the GECMC 2005-C3 Trustee, as the
context may require.
"Non-Serviced Mortgaged Property": Any of the Fireman's Fund
Mortgaged Property and/or the Oglethorpe
Mall Mortgaged Property, as the context
may require.
"Non-Serviced Pari Passu Loan": Any of the Fireman's Fund Pari
Passu
Loan and/or the Oglethorpe Mall Pari Passu
Loan, as the context may require.
"Non-Serviced Whole Loan": Any of the Fireman's Fund Whole Loan
and/or the Oglethorpe Mall Whole Loan, as
the context may require.
"Non-U.S. Person": Any Person (a) other than a U.S. Person,
unless,
with respect to the Transfer of a Residual
Certificate, (i) such Person holds
such Residual Certificate in connection
with the conduct of a trade or business
within the United States and furnishes the
Transferor and the Certificate
Registrar with an effective Internal
Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to
both the Transferor and the Certificate
Registrar an opinion of a nationally
recognized tax counsel to the effect that
such Transfer is in accordance with the
requirements of the Code and the
regulations promulgated thereunder and that
such Transfer of the Residual
Certificate will not be disregarded for
federal income tax purposes, or (b) who
is a U.S. Person if income of such Person
with respect to such Residual
Certificate is attributable to a foreign
permanent establishment or fixed base,
within the meaning of an applicable income
tax treaty, of such Person or any
other U.S. Person.
"Notional Amount": As of any date of determination: (i) with
respect
to all of the Class X-W Certificates as a
Class, the Class X-W Notional Amount
as of such date of determination, (ii) with
respect to any Class X-W
Certificate, the product of the Percentage
Interest evidenced by such
Certificate and the Class X-W Notional
Amount as of such date of determination,
and (iii) with respect to any Component, as
set forth in the definition of such
Component.
"Offered Certificates": The Class A, Class A-M, Class A-J, Class
B,
Class C, Class D and Class E
Certificates.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Servicer or the Special Servicer, as
the case may be, or a Responsible
Officer of the Trustee.
"Oglethorpe Mall A Note": Collectively, the Oglethorpe Mall
Mortgage
Loan and the Oglethorpe Mall A-1 Note.
"Oglethorpe Mall A-1 Note": With respect to the Oglethorpe Mall
Whole Loan, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the related Mortgaged Property
in the original principal amount of
$75,000,000 which is not included in the
Trust and which is pari passu in right
of payment to the other Oglethorpe Mall A
Note, as provided in the Oglethorpe
Mall Co-Lender Agreement, as from time to
time amended, supplemented, modified
or replaced.
"Oglethorpe Mall Co-Lender Agreement": That certain
intercreditor
agreement, dated as of August 25, 2005, by
and among the holders of the
Oglethorpe Mall Mortgage Loan and the
Oglethorpe Mall Pari Passu Loan, in each
case, relating to the relative rights of
such holders, as the same may be
further amended, supplemented, modified or
replaced from time to time.
"Oglethorpe Mall Mortgage Loan": With respect to the Oglethorpe
Mall
Whole Loan, the promissory note made by the
related Mortgagor and secured by the
Mortgage on the Oglethorpe Mall Mortgaged
Property in the original principal
amount of $75,000,000 which is included in
the Trust and which is pari passu in
right of payment to the other Oglethorpe
Mall A Note, as provided in the
Oglethorpe Mall Co-Lender Agreement, as
from time to time amended, supplemented,
modified or replaced.
"Oglethorpe Mall Mortgaged Property": The property or
properties
which secure the Oglethorpe Mall Whole
Loan.
"Oglethorpe Mall Pari Passu Loan": For so long as the
Oglethorpe
Mall Mortgage Loan or a successor REO
Mortgage Loan with respect to the
Oglethorpe Mall Mortgage Loan is part of
the Mortgage Pool, the Oglethorpe Mall
A-1 Note. The Oglethorpe Mall Pari Passu
Loan is not included in the Trust.
"Oglethorpe Mall Whole Loan": The Oglethorpe Mall Mortgage
Loan,
together with the Oglethorpe Mall Pari
Passu Loan. References herein to the
Oglethorpe Mall Whole Loan shall be
construed to refer to the aggregate
indebtedness under the Oglethorpe Mall
Mortgage Loan and the Oglethorpe Mall
Pari Passu Loan.
"Opinion of Counsel": A written opinion of counsel, who may,
without
limitation, be salaried counsel for the
Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered
to the Trustee, except that any
opinion of counsel relating to (a) the
qualification of the Upper-Tier REMIC or
Lower-Tier REMIC as a REMIC, (b) compliance
with the REMIC Provisions, (c)
qualification of the Grantor Trust as a
grantor trust, (d) the resignation of
the Servicer, the Special Servicer or the
Depositor pursuant to Section 6.04 or
(e) any opinion as to enforceability, must
be an opinion of counsel who is in
fact Independent of the Depositor, the
Servicer or the Special Servicer, as
applicable.
"Original Certificate Balance": With respect to any Class of
Regular
Certificates (other than the Class X-W
Certificates), the initial aggregate
principal amount thereof as of the Closing
Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class
of
Uncertificated Lower-Tier Interest, the
initial principal amount thereof as of
the Closing Date, in each case as specified
in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-W
Notional
Amount, the initial Notional Amount thereof
as of the Closing Date, as specified
in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property
based
upon the Appraisal conducted in connection
with the origination of the related
Mortgage Loan, Non-Serviced Whole Loan or
Serviced Whole Loan.
"OTS": The Office of
Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as
the Holder thereof and any other
interest therein, whether direct or
indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or related REO Loan,
any
advance made by the Servicer (or, in the
case of the Fireman's Fund Mortgage
Loan, the BACM 2005-5 Servicer) or the
Trustee, pursuant to Section 4.03 or
Section 7.05 of this Agreement.
"P&I Advance Date": The Business Day immediately prior to
each
Distribution Date.
"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 DDR/Macquarie Mervyn's Portfolio
Pari
Passu Loans, the Design Center of the
Americas Pari Passu Loan, the Fireman's
Fund Pari Passu Loan or the Oglethorpe Mall
Pari Passu Loan.
"Pass-Through Rate" or "Pass-Through Rates": With respect to
any
Class of Uncertificated Lower-Tier
Interests or Regular Certificates, for the
first Distribution Date, the rate set forth
in the Preliminary Statement hereto.
For any Distribution Date occurring
thereafter, the Pass-Through Rates for (i)
the Uncertificated Lower-Tier Regular
Interests shall equal the Weighted Average
Net Mortgage Rate for such Distribution
Date, (ii) the Class A-1 and Class A-1D
and Class A-2 Certificates shall equal the
fixed rate corresponding to such
Class set forth in the Preliminary
Statement hereto, (iii) the Class A-2
Certificates shall equal the lesser of
5.3050% per annum and the Weighted
Average Net Mortgage Rate; (iv) the Class
A-3A, Class A-3B, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class
G, Class H and Class J Certificates shall
equal the Weighted Average Net
Mortgage Rate for such Distribution Date;
(v) the Class A-SB Certificates shall
equal a per annum rate equal to the
Weighted Average Net Mortgage Rate minus
0.032%, (vi) the Class K, Class L, Class M,
Class N, Class O, Class P and Class
Q Certificates shall equal the lesser of
5.0130% per annum and the Weighted
Average Net Mortgage Rate for such
Distribution Date and (vii) the Class X-W
Certificates shall equal the weighted
average of the Class X-W Strip Rates for
the Components for such Distribution Date
(weighted on the basis of the
respective Notional Amounts of such
Components outstanding immediately prior to
such Distribution Date).
"Penalty Charges": With respect to any Mortgage Loan (or
successor
REO Loan), any amounts actually collected
thereon from the Mortgagor that
represent Late Payment Charges or Default
Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate (other than the Class
S
or Residual Certificates), the percentage
interest evidenced thereby in
distributions required to be made with
respect to the related Class. With
respect to any Regular Certificate, the
percentage interest is equal to the
Denomination of such Certificate divided by
the initial Certificate Balance or
Notional Amount, as applicable, of such
Class of Certificates as of the Closing
Date. With respect to a Class S or Residual
Certificate, the percentage interest
is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless
whether issued or managed by the
Depositor, the Servicer, the Special
Servicer, the Trustee or any of their
respective Affiliates and having the
required ratings, if any, provided for in
this definition and which shall not be
subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to
timely
payment of principal and interest by, the United States of
America,
Fannie
Mae, Freddie Mac or any agency or instrumentality of the United
States of
America, the obligations of which are backed by the full faith
and credit
of the United States of America that have a remaining term to
maturity
of one year or less at the time of acquisition; provided that,
any
obligation of, or guarantee by, Fannie Mae or Freddie Mac, other
than
an
unsecured senior debt obligation of Fannie Mae or Freddie Mac,
shall be
a
Permitted Investment only if such investment would not result in
the
downgrading, withdrawal or qualification of the then-current
rating
assigned
by each Rating Agency to any Certificate (and in the case of an
investment
that relates to a Serviced Whole Loan, any class of related
Serviced
Pari Passu Loan Securities) as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers'
acceptances that have a remaining term to maturity of one year or
less at
the time
of acquisition and are issued or held by any depository
institution or trust company (including the Trustee) incorporated
or
organized
under the laws of the United States of America or any State
thereof
and subject to supervision and examination by federal or state
banking
authorities, so long as the commercial paper or other
short-term
debt
obligations of such depository institution or trust company are
rated
in the highest
rating categories of each of each Rating Agency or such
other
rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to
any
Certificate (and in the case of an investment that relates to a
Serviced
Whole Loan, any class of related Serviced Pari Passu Loan
Securities), as evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security
described in clause (i) above where such security has a
remaining
maturity
of one year or less and where such repurchase obligation has
been
entered
into with a depository institution or trust company (acting as
principal)
described in clause (ii) above that also has a long-term
unsecured
debt rating of at least "A" by S&P;
(iv) debt obligations bearing interest or sold at a discount
issued
by any
corporation incorporated under the laws of the United States of
America or any state thereof which
have a remaining term to maturity of
one year
or less at the time of acquisition, which debt obligations are
rated in
the highest rating categories of each Rating Agency or such
other
rating as
would not result in the downgrading, withdrawal or
qualification
of the
then-current rating assigned by each Rating Agency to any
Certificate (and in the case of an investment that relates to a
Serviced
Whole
Loan, any class of related Serviced Pari Passu Loan Securities)
as
specified
in writing by each of the Rating Agencies; provided, however,
that
securities issued by any particular corporation will not be
Permitted
Investments to the extent that investment therein will cause
the
then-outstanding principal amount of securities issued by such
corporation
and held
in the accounts established hereunder to exceed 10% of the sum
of
the
aggregate principal balance and the aggregate principal amount of
all
Permitted
Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations) of any corporation or
other
entity
organized under the laws of the United States or any state
thereof
payable on
demand or on a specified date maturing in one year or less
after the
date of acquisition thereof and which is rated in the highest
rating
category of each Rating Agency;
(vi) any money market funds including those managed or advised
by
the
Trustee or its affiliates rated in the highest rating categories
of
each
Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation,
security
or investment, (a) with respect to which each Rating Agency
shall
have
confirmed in writing that such investment will not result in a
downgrade,
qualification or withdrawal of the then-current rating of the
Certificates (and in the case of an investment that relates to a
Serviced
Whole
Loan, any class of related Serviced Pari Passu Loan Securities)
that
are
currently being rated by each Rating Agency, and (b) which
qualifies
as a "cash
flow investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case (a)
the investment shall have a
predetermined fixed dollar of principal due
at maturity that cannot vary or
change and (b) any such investment that
provides for a variable rate of interest
must have an interest rate that is tied to
a single interest rate index plus a
fixed spread, if any, and move
proportionately with such index; provided,
further, however, that no such instrument
shall be a Permitted Investment (a) if
such instrument evidences principal and
interest payments derived from
obligations underlying such instrument and
the interest payments with respect to
such instrument provide a yield to maturity
at the time of acquisition of
greater than 120% of the yield to maturity
at par of such underlying obligations
or (b) if such instrument may be redeemed
at a price below the purchase price;
provided, further, however, that no amount
beneficially owned by the Upper-Tier
REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be
invested in investments (other than money
market funds) treated as equity
interests for federal income tax purposes,
unless the Servicer receives an
Opinion of Counsel, at its own expense, to
the effect that such investment will
not adversely affect the status of either
the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC under the Code or result
in imposition of a tax on such
Upper-Tier REMIC or Lower-Tier REMIC.
Permitted Investments that are subject to
prepayment or call may not be purchased at
a price in excess of par.
"Permitted Transferee" Any Person who is a Qualified
Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, 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(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special
Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the
Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as
Special Servicer, for the benefit of
Wells Fargo Bank, N.A., as Trustee, in
trust for registered Holders of GE
Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates,
Series 2005-C4, REO Account." Any such
account or accounts shall be an Eligible
Account.
"Prepayment Assumption": A "constant prepayment rate" of 0% used
for
determining the accrual of original issue
discount, market discount and premium,
if any, on the Certificates for federal
income tax purposes; provided that, it
is assumed that each Mortgage Loan with an
Anticipated Prepayment Date prepays
on such date.
"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 and
Condemnation Proceeds were received by the
Servicer or Special Servicer for
application to such Mortgage Loans, in each
case after the Due Date in the month
of such Distribution Date and on or prior
to the related Determination Date, the
amount of interest accrued at the Mortgage
Rate for such Mortgage Loans on the
amount of such Principal Prepayments or
Insurance Proceeds and Condemnation
Proceeds after the Interest Accrual Period
relating to such Due Date and
accruing in the manner set forth in the
loan documents relating to such Mortgage
Loans, to the extent such interest is
collected by the Servicer or the Special
Servicer.
"Prepayment Interest Shortfall": With respect to any
Distribution
Date, for each Mortgage Loan that was
subject to a Principal Prepayment in full
or in part and which did not include a full
month's interest, or as to which
Insurance Proceeds, Liquidation Proceeds or
Condemnation Proceeds, as
applicable, were received by the Servicer
or Special Servicer for application to
such Mortgage Loan, in each case after the
Determination Date in the calendar
month preceding such Distribution Date but
prior to the Due Date in the related
Due Period, the amount of interest that
would have accrued at the Net Mortgage
Rate for such Mortgage Loan on the amount
of such Principal Prepayment or
Insurance Proceeds and Condemnation
Proceeds during the period commencing on the
date as of which such Principal Prepayment
or Insurance 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.
"Prime Rate": The "Prime Rate" as published in the "Money
Rates"
section of The Wall Street Journal (or, if
such section or publication is no
longer available, such other comparable
publication as determined by the 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 both the
Servicer and the Special Servicer with
regard to any determination of the Prime
Rate in accordance with the
parenthetical in the preceding
sentence.
"Principal Distribution Amount": With respect to any
Distribution
Date, an amount equal to the sum of (a) the
Principal Shortfall for such
Distribution Date, (b) the Scheduled
Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such
Distribution Date; provided that the
Principal Distribution Amount for any
Distribution Date shall be reduced by the
amount of any reimbursements of (i)
Nonrecoverable Advances plus interest on
such Nonrecoverable Advances that are
paid or reimbursed from principal
collections on the Mortgage Loans in a period
during which such principal collections
would have otherwise been included in
the Principal Distribution Amount for such
Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that
are paid or reimbursed from principal
collections on the Mortgage Loans in a
period during which such principal
collections would have otherwise been
included in the Principal Distribution
Amount for such Distribution Date
(provided, that, in the case of clause (i) and
(ii) above, if any of the amounts that were
reimbursed from principal
collections on the Mortgage Loans are
subsequently recovered on the related
Mortgage Loan, such recovery will increase
the Principal Distribution Amount for
the Distribution Date related to the period
in which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan, Serviced Pari
Passu Loan or Serviced B Note which
is received in advance of its scheduled Due
Date and which is not accompanied by
an amount of interest representing
scheduled interest due on any date or dates
in any month or months subsequent to the
month of prepayment.
"Principal Shortfall": For any Distribution Date after the
initial
Distribution Date, the amount, if any, by
which (a) the related Principal
Distribution Amount for the preceding
Distribution Date, exceeds (b) the
aggregate amount distributed in respect of
principal on the Class A, Class A-M,
Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O, Class P and Class Q Certificates
for such preceding Distribution Date
pursuant to Section 4.01(a) on such
preceding Distribution Date. The Principal
Shortfall for the initial
Distribution Date will be zero.
Notwithstanding the foregoing, for purposes of
determining the Loan Group 1 Principal
Distribution Amount or the Loan Group 2
Principal Distribution Amount, the Loan
Group 1 Principal Shortfall or the Loan
Group 2 Principal Shortfall, as
applicable.
"Private Placement Memorandum": Collectively, the Private
Placement
Memoranda, each dated December 2, 2005,
pursuant to which the Class X-W, Class
F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class
P, Class Q, Class S, Class R and Class LR
Certificates will be offered for sale.
"Privileged Person": Any of the following: a party to this
Agreement, a Rating Agency, a designee of
the Depositor (including any financial
market publisher), the initial Directing
Certificateholder and any other person
who delivers to the Trustee in the form
attached hereto as Exhibit L (which form
is also located on, and may be submitted
electronically via, the Trustee's
internet website), a certification that
such person is a Certificateholder, a
Certificate Owner of a Certificate, a
prospective purchaser of a Certificate or
Trepp LLC.
"Prospectus": The Prospectus dated November 16, 2005, as
supplemented by the Prospectus Supplement
dated December 2, 2005, relating to
the offering of the Offered
Certificates.
"Purchase Option": As
defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan (or related
REO
Loan) to be purchased by a Mortgage Loan
Seller pursuant to Section 3 of the
related Mortgage Loan Purchase Agreement,
by the Directing Certificateholder,
the Special Servicer or the Servicer
pursuant to Section 3.18(c), by the holders
specified in Section 3.18(l) or by the
Servicer or the Special Servicer pursuant
to Section 9.01(b) a price equal to:
(i) the outstanding principal balance of such Mortgage Loan as
of
the date
of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan at
the
related
Mortgage Rate in effect from time to time to but not including
the
Due Date
in the Due Period of purchase (or, if the Mortgage Loan has an
interest
accrual period that ends on or after such Due Date, through the
end of
such interest accrual period); plus
(iii) all related Servicing Advances (including, in the case of
a
Non-Serviced Mortgage Loan, the pro rata portion (based on the
related
Stated Principal Balance) of
a servicing advance made pursuant to the
related
Non-Serviced Mortgage Loan Pooling Agreement that is allocable
to
such
Non-Serviced Mortgage Loan) that are unreimbursed out of
collections
on the
related Mortgage Loan and accrued and unpaid interest on
related
Advances
at the Reimbursement Rate, and unpaid Special Servicing Fees
and
Workout
Fees (and, in the case of a Non-Serviced Mortgage Loan, unpaid
fees
payable to the Non-Serviced Mortgage Loan Servicer or the
Non-Serviced Mortgage Loan Special Servicer; plus
(iv) any Liquidation Fee due pursuant to Section 3.11 hereunder
that
is
allocable to such Mortgage Loan; plus
(v) if such Mortgage Loan (or related REO loan) is being
purchased
by a
Mortgage Loan Seller pursuant to Section 3 of the applicable
Mortgage
Loan
Purchase Agreement, to the extent not otherwise included in the
amount
described in clause (iii) of this definition, all reasonable
out-of-pocket expenses reasonably incurred or to be incurred by
the
Servicer,
the Special Servicer, the Depositor and the Trustee in respect
of the
Breach or Document Defect giving rise to the repurchase
obligation,
including
any expenses arising out of the enforcement of the repurchase
obligation, including, without duplication, any amounts
previously
reimbursed
from the Certificate Account or, if a Serviced Whole Loan is
involved,
the related Serviced Whole Loan Custodial Account, in each
case,
with
interest thereon at the Reimbursement Rate.
With respect to any REO Property to be sold
pursuant to Section 3.18(c), the
amount calculated in accordance with the
preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan
(other
than any Non-Serviced Mortgage Loan),
Serviced Whole Loan, REO Loan or REO
Property, an insurance company or security
or bonding company qualified to write
the related Insurance Policy in the
relevant jurisdiction with (or whose
obligations are guaranteed or backed
(pursuant to legally binding arrangements)
by an entity with) a minimum claims paying
ability rating of at least "A" by S&P
and "A3" by Moody's (or, if not rated by
Moody's, at least "A-IX" by A.M. Best
Company) and (ii) with respect to the
fidelity bond and errors and omissions
Insurance Policy required to be maintained
pursuant to Section 3.07(c), an
insurance company that has (or whose
obligations are guaranteed or backed
(pursuant to legally binding arrangements)
by an entity that has) a claims
paying ability rated no lower than two
ratings below the rating assigned to the
then highest rated outstanding Certificate,
but in no event lower than "A" by
S&P and "A3" by Moody's (or, if not
rated by Moody's, at least "A-IX" by A.M.
Best Company) or, in the case of clauses
(i) and (ii), such other rating as each
Rating Agency shall have confirmed in
writing will not cause such Rating Agency
to downgrade, qualify or withdraw the
then-current rating assigned to any of the
Certificates that are then currently being
rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on
the date of substitution, among other
things: (i) have an outstanding Stated
Principal Balance, after application of all
scheduled payments of principal
and/or interest due during or prior to the
month of substitution, not in excess
of the Stated Principal Balance of the
deleted 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
deleted Mortgage Loan; (iii) have
the same Due Date as the deleted Mortgage
Loan; (iv) accrue interest on the same
basis as the deleted 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 deleted
Mortgage Loan; (vi) have an original
Loan-to-Value Ratio not higher than that of
the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than
the then current Loan-to-Value Ratio
of the deleted 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
Assessment that indicates no material
adverse environmental conditions with
respect to the related Mortgaged Property
and which will be delivered as a part
of the related Mortgage File; (ix) have an
original Debt Service Coverage Ratio
of not less than the original Debt Service
Coverage Ratio of the deleted
Mortgage Loan and a current Debt Service
Coverage Ratio of not less than the
current Debt Service Coverage Ratio of the
deleted 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 two years
prior to the Rated Final Distribution Date;
(xii) not be substituted for a
deleted Mortgage Loan unless the Trustee
has received prior confirmation in
writing by each Rating Agency that such
substitution will not 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); (xiii) have been approved by
the Directing Certificateholder in
its sole discretion; (xiv) prohibit
defeasance within two years of the Closing
Date; (xv) not be substituted for a deleted
Mortgage Loan if it would result in
the termination of the REMIC status of
either of the REMICs established under
this Agreement 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) with respect
to a Group 2 Mortgage Loan, be of the same
property type as such Mortgage Loan.
In the event that one or more mortgage
loans are substituted for one or more
deleted Mortgage Loans, then the amounts
described in clause (i) shall be
determined on the basis of aggregate
principal balances and the rates described
in clause (ii) above and the remaining term
to stated maturity referred to in
clause (v) above shall be determined on a
weighted average basis; provided that,
no individual mortgage rate shall be lower
than the highest Pass-Through Rate
(that is a fixed rate not subject to a cap
equal to the Weighted Average Net
Mortgage Rate) of any Class of Certificates
having a principal balance then
outstanding. When a Qualified Substitute
Mortgage Loan is substituted for a
deleted 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": As to each Class of
Certificates,
the Distribution Date in November 2045, the
first Distribution Date following
the 36th month following the end of the
stated amortization term for the
Mortgage Loan that, as of the Cut-off Date,
has the longest remaining
amortization term.
"Rating Agency": With respect to any matter relating to the
Certificates, each of S&P and Moody's
or their successors in interest and, with
respect to any matter relating to any class
of Serviced Pari Passu Loan
Securities, the applicable rating agencies
then rating such Serviced Pari Passu
Loan Securities. References herein to the
highest long-term unsecured debt
rating category of a Rating Agency shall
mean "AAA" with respect S&P and "Aaa"
with respect to Moody's, and in the case of
any other rating agency shall mean
its highest rating category without regard
to any plus or minus, numerical or
other qualification. If no such rating
agency nor any successor remains in
existence, "Rating Agency" shall be deemed
to refer to such nationally
recognized statistical rating agency or
other comparable Person designated by
the Depositor, notice of which designation
shall be given to the Trustee, the
Special Servicer and the Servicer, and
specific ratings of S&P and Moody's
herein referenced shall be deemed to refer
to the equivalent ratings of the
party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately
preceding the month in which such
Distribution Date occurs.
"Registrar Office": As
defined in Section 5.02(a).
"Regular Certificate": Any of the Class A-1, Class A-1D, Class
A-2,
Class A-3A, Class A-3B, Class A-SB, Class
A-4, Class A-1A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class
P, Class Q and Class X-W Certificates.
"Regulation AB Serviced Pari Passu Loan Securitization": As
defined
in Section 3.31(a).
"Regulation S":
Regulation S under the Securities Act.
"Regulation S Book-Entry Certificates": With respect to any Class
of
Certificates (other than any ERISA
Restricted Certificate, without giving effect
to clause (b)(ii) of the definition
thereof) offered and sold outside of the
United States in reliance on Regulation S,
a single Book-Entry Certificate, in
definitive, fully registered form, without
interest coupons.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book Entry Certificate, a
transferee that acquires such Certificate
pursuant to Regulation S.
"Reimbursement Rate": The rate per annum applicable to the
accrual
of interest on Servicing Advances in
accordance with Section 3.03(e) and P&I
Advances in accordance with Section
4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interest"
and "Related Component": For the following
Classes of Uncertificated Lower-Tier
Interests, the related Class of
Certificates and related Components set forth
below; for the following Classes of
Certificates, the related Class of
Uncertificated Lower-Tier Interests and
related Components set forth below; and
for the following Components, the related
Class of Certificates and Class of
Uncertificated Lower-Tier Interests set
forth below:
<TABLE>
<CAPTION>
Related Uncertificated
Related Certificate
Lower-Tier Interest
Related Component
-------------------
-------------------
-----------------
<S>
<C>
<C>
Class A-1 Certificate
Class LA-1 Uncertificated Interest Class LA-1
Component
Class A-1D Certificate Class
LA-1D Uncertificated Interest Class LA-1D
Component
Class A-2 Certificate
Class LA-2 Uncertificated Interest Class A-2
Component
Class A-3A Certificate Class
LA-3A Uncertificated Interest Class A-3A
Component
Class A-3B Certificate Class
LA-3B Uncertificated Interest Class A-3B
Component
Class A-SB Certificate Class
LA-SB Uncertificated Interest Class A-SB
Component
Class A-4 Certificate
Class LA-4 Uncertificated Interest Class A-4
Component
Class A-1A Certificate Class
LA-1A Uncertificated Interest Class A-1A
Component
Class A-M Certificate
Class LA-M Uncertificated Interest Class A-M
Component
Class A-J Certificate
Class LA-J Uncertificated Interest Class A-J
Component
Class B Certificate
Class LB Uncertificated Interest
Class B Component
Class C Certificate
Class LC Uncertificated Interest
Class C Component
Class D Certificate
Class LD Uncertificated Interest
Class D Component
Class E Certificate
Class LE Uncertificated Interest
Class E Component
Class F Certificate
Class LF Uncertificated Interest
Class F Component
Class G Certificate
Class LG Uncertificated Interest
Class G Component
Class H Certificate
Class LH Uncertificated Interest
Class LH Component
Class J Certificate
Class LJ Uncertificated Interest
Class J Component
Class K Certificate
Class LK Uncertificated Interest
Class K Component
Class L Certificate
Class LL Uncertificated Interest
Class L Component
Class M Certificate
Class LM Uncertificated Interest
Class M Component
Class N Certificate
Class LN Uncertificated Interest
Class N Component
Class O Certificate
Class LO Uncertificated Interest
Class O Component
Class P Certificate
Class LP Uncertificated Interest
Class P Component
Class Q Certificate
Class LQ Uncertificated Interest
Class Q Component
</TABLE>
"Release Date": The date that is 40 days after the later of (i)
the
commencement of the offering of the
Certificates and (ii) the Closing Date.
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code (or any successor
thereto).
"REMIC Provisions": The provisions of the federal income tax
law
relating to real estate mortgage investment
conduits, which appear at Sections
860A through 860G of Subchapter M of
Chapter 1 of the Code, and related
provisions, and temporary and final
Treasury regulations (or proposed
regulations that would apply by reason of
their proposed effective date to the
extent not inconsistent with temporary or
final regulations) and any rulings
promulgated thereunder, as the foregoing
may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in
Section 856(d) of the Code.
"REO Account": The Pool REO Account and/or a Serviced Whole Loan
REO
Account, as applicable.
"REO Acquisition": The acquisition for federal income tax
purposes
of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of the REO
Property
pursuant to Section 3.18(g).
"REO Extension": As
defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Serviced Whole Loan deemed for
purposes hereof to be outstanding with
respect to each REO Property (including
the Trust's beneficial interest in a
Mortgaged Property acquired pursuant to a
Non-Serviced Mortgage Loan Pooling
Agreement). Each REO Loan shall be deemed to
be outstanding for so long as the related
REO Property (including the Trust's
beneficial interest in a Mortgaged Property
acquired pursuant to a Non-Serviced
Mortgage Loan Pooling Agreement) remains
part of the Trust Fund and provides for
Assumed Scheduled Payments on each Due Date
therefor, and otherwise has the same
terms and conditions as its predecessor
Mortgage Loan, Serviced Pari Passu Loan
or Serviced B Note, including, without
limitation, with respect to the
calculation of the Mortgage Rate in effect
from time to time (such terms and
conditions to be applied without regard to
the default on such predecessor
Mortgage Loan, Serviced Pari Passu Loan or
Serviced B Note). Each REO Loan shall
be deemed to have an initial outstanding
principal balance and Stated Principal
Balance equal to the outstanding principal
balance and Stated Principal Balance,
respectively, of its predecessor Mortgage
Loan, Serviced Pari Passu Loan or
Serviced B Note as of the date of the
related REO Acquisition (or acquisition
pursuant to a Non-Serviced Mortgage Loan
Pooling Agreement). All amounts due and
owing in respect of the predecessor
Mortgage Loan, Serviced Pari Passu Loan or
Serviced B Note as of the date of the
related REO Acquisition (or acquisition
pursuant to a Non-Serviced Mortgage Loan
Pooling Agreement), including, without
limitation, accrued and unpaid interest,
shall continue to be due and owing in
respect of an REO Loan. All amounts payable
or reimbursable to the Servicer, the
Special Servicer or the Trustee, as
applicable, in respect of the predecessor
Mortgage Loan, Serviced Pari Passu Loan or
Serviced B Note as of the date of the
related REO Acquisition (or acquisition
pursuant to a Non-Serviced Mortgage Loan
Pooling Agreement), including, without
limitation, any unpaid Special Servicing
Fees and Servicing Fees and any
unreimbursed Advances, together with any
interest accrued and payable to the
Servicer or the Special Servicer or the
Trustee, as applicable, in respect of such
Advances in accordance with Section
3.03(e) or Section 4.03(d), shall continue
to be payable or reimbursable to the
Servicer, the Special Servicer or the
Trustee, as applicable, in respect of an
REO Loan. In addition, Workout-Delayed
Reimbursement Amounts and Nonrecoverable
Advances with respect to such REO Loan, in
each case, that were paid or
reimbursed from collections on the Mortgage
Loans and resulted in principal
distributed to the Certificateholders being
reduced as a result of the first
proviso in the definition of "Principal
Distribution Amount," "Loan Group 1
Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount"
shall be deemed outstanding until recovered
or until a Final Recovery
Determination is made. Collections in
respect of each REO Loan (exclusive of the
amounts to be applied to the payment of, or
to be reimbursed to the Servicer or
the Special Servicer for the payment of,
the costs of operating, managing,
selling, leasing and maintaining the
related REO Property) shall be treated:
first, as a recovery of Nonrecoverable
Advances (including interest on such
Nonrecoverable Advance) and Workout-Delayed
Reimbursed Amounts with respect to
such REO Loan, that were reimbursed from
collections on the Mortgage Loans and
resulted in principal distributed to the
Certificateholders being reduced as a
result of the first proviso of the
definition of "Principal Distribution
Amount," "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal
Distribution Amount"; second, as a recovery
of accrued and unpaid interest on
such REO Loan at the related Mortgage Rate
in effect from time to time to but
not including the Due Date in the Due
Period of receipt (exclusive of any
portion that constitutes Excess Interest);
third, as a recovery of principal of
such REO Loan to the extent of its entire
unpaid principal balance; and fourth,
in accordance with the Servicing Standard
of the Servicer or Special Servicer,
as applicable, as a recovery of any other
amounts due and owing in respect of
such REO Loan, including, without
limitation, (i) Yield Maintenance Charges and
Penalty Charges and (ii) Excess Interest
and other amounts, in that order,
provided, further, that (A) if a Mortgage
Loan that is a Non-Serviced Mortgage
Loan (or a Serviced Whole Loan) becomes an
REO Loan the treatment of the
foregoing amounts with respect to a
Non-Serviced Mortgage Loan (or Serviced
Whole Loan) shall be subject to the terms
of the related Co-Lender Agreement and
in the case of a Non-Serviced Mortgage
Loan, the related Non-Serviced Mortgage
Loan Pooling Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any
Due
Date therefor, the one-month period
immediately preceding such Due Date.
"REO Property": A Mortgaged Property (other than a Mortgaged
Property securing a Non-Serviced Mortgage
Loan) acquired by the Special Servicer
on behalf of, and in the name of, the
Trustee, or a nominee of the Trustee for
the benefit of the Certificateholders and
the Trustee (as holder of the
Uncertificated Lower-Tier Interests) (and,
in the case of a related Mortgaged
Property securing a Serviced Whole Loan,
for the benefit of the
Certificateholders and the holders of any
Serviced Pari Passu Loan or Serviced B
Note, as their interests may appear)
through foreclosure, acceptance of a
deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in
connection with the default or imminent
default of a Mortgage Loan, Serviced
Pari Passu Loan or Serviced B Note.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO
Property.
"Request for Release": A release signed by a Servicing Officer
of
the Servicer or the Special Servicer, as
applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and
delivered hereunder.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect
to
any Mortgage Loan, the 90-day period
following the end of the applicable Initial
Resolution Period;
(b) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a
Specially Serviced Loan at the
commencement of, and does not become a
Specially Serviced Loan during, the
applicable Initial Resolution Period, the
period commencing at the end of the
applicable Initial Resolution Period and
ending on, and including, the earlier
of (i) the 90th day following the end of
such Initial Resolution Period and (ii)
the 45th day following receipt by the
Mortgage Loan Seller of written notice
from the Servicer or the Special Servicer
of the occurrence of any Servicing
Transfer Event with respect to such
Mortgage Loan subsequent to the end of such
Initial Resolution Period;
(c) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not
a Specially Serviced Loan as of the
commencement of the applicable Initial
Resolution Period, but as to which a
Servicing Transfer Event occurs during such
Initial Resolution Period, the
period commencing at the end of the
applicable Initial Resolution Period and
ending on, and including, the 90th day
following receipt by the Mortgage Loan
Seller of written notice from the Servicer
or the Special Servicer of the
occurrence of such Servicing Transfer
Event; and
(d) for
purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a
Specially Serviced Loan as of the
commencement of the applicable Initial
Resolution Period, zero (-0-) days;
provided that, if the Mortgage Loan Seller
did not receive written notice from
the Servicer or the Special Servicer of the
relevant Servicing Transfer Event as
of the commencement of the applicable
Initial Resolution Period, then such
Servicing Transfer Event shall be deemed to
have occurred during such Initial
Resolution Period and clause (c) of this
definition will be deemed to apply.
The applicable Mortgage Loan Seller shall have an additional 90
days
beyond any cure period specified above to
cure such Material Document Defect or
Material Beach; provided that, the Mortgage
Loan Seller has commenced and is
diligently proceeding with the cure of such
Material Document Defect or Material
Breach and such failure to cure is solely
the result of a delay in the return of
documents from the local filing or
recording authorities.
"Responsible Officer": When used with respect to the initial
Trustee, any Vice President, Assistant Vice
President, Assistant Secretary,
corporate trust officer or assistant
corporate trust officer in the corporate
trust department of the Trustee, and with
respect to any successor Trustee, any
officer or assistant officer in the
corporate trust department of the successor
Trustee or any other officer of the
successor Trustee customarily performing
functions similar to those performed by any
of the above designated officers to
whom a particular matter is referred by the
successor Trustee because of such
officer's knowledge of and familiarity with
the particular subject.
"Revised Rate": With respect to those Mortgage Loans on the
Mortgage
Loan Schedule indicated as having a revised
rate, the increased interest rate
after the Anticipated Prepayment Date (in
the absence of a default) for each
applicable Mortgage Loan, as calculated and
as set forth in the related Mortgage
Loan.
"Rule 144A Book-Entry Certificate": With respect to any Class
of
Certificates offered and sold in reliance
on Rule 144A under the Securities Act,
a single Book-Entry Certificate, in
definitive, fully registered form without
interest coupons.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc. and its
successors in interest.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and in respect of any
Mortgage Loan, the aggregate of the
principal portions of (a) all Monthly
Payments (excluding Balloon Payments and
Excess Interest) due in respect of such
Mortgage Loans during or, if and to the
extent not previously received or advanced
pursuant to Section 4.03 in respect
of a preceding Distribution Date, prior to,
the related Due Period, and all
Assumed Scheduled Payments for such
Mortgage Loans for the related Due Period,
in each case to the extent either (i) paid
by the Mortgagor as of the Business
Day preceding the related P&I Advance
Date (or, with respect to a Non-Serviced
Mortgage Loan, to the extent remitted by
the related Non-Serviced Mortgage Loan
Servicer to the Servicer on or prior to the
Business Day preceding the P&I
Advance Date) (and not previously
distributed to Certificateholders) or (ii)
advanced by the Servicer or the Trustee, as
applicable, pursuant to Section 4.03
in respect of such Distribution Date, and
(b) all Balloon Payments in respect of
such Mortgage Loans to the extent received
by the Servicer on or prior to the
related Determination Date (or, with
respect to a Non-Serviced Mortgage Loan, to
the extent remitted by the related
Non-Serviced Mortgage Loan Servicer to the
Servicer on or prior to the related
Determination Date), and to the extent not
included in clause (a) above.
"Securities Act": The
Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent
instrument, whether contained in the related
Mortgage or executed separately, creating
in favor of the holder of such
Mortgage a security interest in the
personal property constituting security for
repayment of such Mortgage Loan.
"Serviced B Note": With respect to any Mortgage Loan (other than
a
Non-Serviced Mortgage Loan), any mortgage
loan that is secured by the same
Mortgage on the related Mortgaged Property
on a subordinate basis with such
Mortgage Loan. For the avoidance of doubt,
the 123 North Wacker B Note, the
Becker Portfolio B Note, the Crowne Pointe
B Note, the Knox Park II B Note and
the Edenvale Business Center B Note are the
only Serviced B Notes.
"Serviced Pari Passu Loan": With respect to any Mortgage Loan
(other
than a Non-Serviced Mortgage Loan), any
mortgage loan that is secured by the
related Mortgaged Property on a pari passu
basis with such Mortgage Loan. For
the avoidance of doubt, the DDR/Macquarie
Mervyn's Portfolio Pari Passu Loans
and the Design Center of the Americas Pari
Passu Loan are the only Serviced Pari
Passu Loans.
"Serviced Pari Passu Loan Securities": Any class of securities
backed in whole or in part by any Serviced
Pari Passu Loan.
"Serviced Whole Loan": With respect to any Mortgage Loan as to
which
the related Mortgage also secures one or
more Serviced Pari Passu Loans and/or a
Serviced B Note, the aggregate indebtedness
of (i) such Mortgage Loan and (ii)
such related Serviced Pari Passu Loans
and/or Serviced B Notes. For the
avoidance of doubt, the 123 North Wacker
Whole Loan, the DDR/Macquarie Mervyn's
Portfolio Whole Loan, the Design Center of
the Americas Whole Loan, the Becker
Portfolio Whole Loan, the Crowne Pointe
Whole Loan, the Knox Park II Whole Loan
and the Edenvale Business Center Whole Loan
are the only Serviced Whole Loans.
"Serviced Whole Loan Custodial Account": With respect to each
Serviced Whole Loan, the segregated
account, accounts or sub account, which may
be a sub account of the Certificate
Account, created and maintained by the
Servicer pursuant to Section 3.04(d) on
behalf of the holders of any related
Mortgage Loan or Serviced B Note, which
shall be entitled "[NAME OF SERVICER],
as Servicer, in trust for the
Certificateholders and [NAMES OF THE HOLDERS OF
ANY RELATED SERVICED B NOTE], as their
interests may appear." Any such
account(s) shall at all times be an
Eligible Account(s) or sub account(s) of
Eligible Account(s).
"Serviced Whole Loan REO Account": As defined in Section
3.16(b).
"Servicer": Midland Loan Services, Inc. and its successor in
interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03.
"Servicing Advances": With respect to any Mortgage Loan (other
than
a Non-Serviced Mortgage Loan) or Serviced
Whole Loan, all customary, reasonable
and necessary "out of pocket" costs and
expenses (including attorneys' fees and
expenses and fees of real estate brokers)
incurred by the Servicer, the Special
Servicer or the Trustee, as applicable, in
connection with the servicing and
administering of (a) such Mortgage Loan or
Serviced Whole Loan in respect of
which a default, delinquency or other
unanticipated event has occurred or as to
which a default is reasonably foreseeable
or (b) the related REO Property,
including, but not limited to, the cost of
(i) compliance with the Servicer's
obligations set forth in Section 3.03(c),
(ii) the preservation, restoration and
protection of a Mortgaged Property, (iii)
obtaining any Insurance Proceeds and
Condemnation Proceeds or any Liquidation
Proceeds, (iv) any enforcement or
judicial proceedings with respect to the
related Mortgaged Property, including
foreclosures, (v) the operation, leasing,
management, maintenance and
liquidation of any related REO Property,
(vi) the maintenance of insurance
(including under the Servicer's
force-placed insurance policy) with respect to a
Mortgaged Property and (vii) compliance by
the Servicer or the Special Servicer,
as applicable, with the Servicer's or
Special Servicer's, as applicable,
obligations set forth in Section 2.03(e).
Notwithstanding anything to the
contrary, "Servicing Advances" shall not
include allocable overhead of the
Servicer, 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 Serviced
Whole Loan or REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Serviced
Pari
Passu Loan, Mezz Cap B Note and REO Loan,
the fee payable to the Servicer
pursuant to the first paragraph of Section
3.11(a).
"Servicing Fee Rate": With respect to each Mortgage Loan, a
rate
equal to the per annum rate set forth on
the Mortgage Loan Schedule under the
heading "Servicing Fee Rate," in each case
computed on the basis of the Stated
Principal Balance of the related Mortgage
Loan and on the basis of a 360 day
year with twelve 30 day months. With
respect to each Serviced Pari Passu Loan, a
rate per annum equal to 0.02%. With respect
to each Mezz Cap B Note, the rate
per annum set forth in the related
Co-Lender Agreement.
"Servicing Officer": Any officer and/or employee of the Servicer
or
the Special Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans, whose name
and specimen signature appear on a
list of servicing officers furnished by the
Servicer and the Special Servicer to
the Trustee and the Depositor on the
Closing Date as such list may be amended
from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(f).
"Servicing Retained Bid": As defined in Section 7.01(f).
"Servicing Standard":
As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan
(other
than a Non-Serviced Mortgage Loan) or
Serviced Whole Loan, the occurrence of any
of the following events:
(i) either (x) with respect to any Mortgage Loan or Serviced
Whole
Loan other
than a Balloon Loan, a payment default shall have occurred on
such
Mortgage Loan or Serviced Whole Loan at its original maturity
date
or, if the
original maturity date of such Mortgage Loan or Serviced Whole
Loan has
been extended in accordance herewith, a payment default occurs
on
such
Mortgage Loan or Serviced Whole Loan at its extended maturity date
or
(y) with
respect to a Balloon Loan, a payment default shall have
occurred
with
respect to the related Balloon Payment; provided, however, that
if
the
Mortgagor continues to make its Assumed Scheduled Payment and
diligently
pursues refinancing, a Servicing Transfer Event shall not occur
until 90
days following such default (or, if the Mortgagor has produced
a
written
refinancing commitment that is reasonably acceptable to the
Special
Servicer and the Directing Certificateholder has given its
consent
(which
consent shall be deemed denied if not granted within 10
Business
Days), 150
days following such default); or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days
or more
delinquent; or
(iii) the date upon which the Servicer or Special Servicer (in
the
case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines that a payment default is imminent
and is
not likely
to be cured by the related Mortgagor within 60 days; or
(iv) the date upon which a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy,
insolvency
or similar law, or the appointment of a conservator, receiver
or
liquidator in any insolvency, readjustment of debt, marshaling
of
assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, and being entered against the
related
Mortgagor;
provided that, if such decree or order shall have been
dismissed,
discharged or stayed within 60 days thereafter, the Mortgage
Loan or
Serviced Whole Loan shall no longer be a Specially Serviced
Loan
and no
Special Servicing Fees shall be payable with respect thereto;
or
(v) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt,
marshaling of assets and liabilities or similar proceedings of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(vi) the related Mortgagor shall admit in writing its inability
to
pay its
debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
(vii) a default of which the Servicer has notice or actual
knowledge
(other
than a failure by such Mortgagor to pay principal or interest)
and
which in
the opinion of the Servicer materially and adversely affects
the
interests
of the Certificateholders (or, with respect to a Serviced Whole
Loan, the
related holder of a Serviced B Note, if any) has occurred and
remained
unremedied for the applicable grace period specified in
