================================================================================
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES II INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
----------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
----------
$2,633,679,672
Aggregate Initial Certificate Principal Balance
----------
Commercial Mortgage Pass-Through Certificates
Series 2005-PWR10
================================================================================
TABLE OF CONTENTS
----------
SECTION
PAGE
-------
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01.
Defined Terms...........................................
7
SECTION 1.02.
General Interpretive Principles.........................
72
SECTION 1.03.
Certain Calculations in Respect of the Mortgage Pool....
72
SECTION 1.04.
Cross-Collateralized Mortgage Loans.....................
72
SECTION 1.05.
Incorporation of Preliminary Statement..................
74
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES;
ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR
INTERESTS,
REMIC III COMPONENTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL
INTEREST,
REMIC III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01.
Conveyance of Pooled Mortgage Loans.....................
75
SECTION 2.02.
Acceptance of Mortgage Assets by Trustee................
79
SECTION 2.03.
Certain Repurchases and Substitutions of Pooled
Mortgage Loans by the Pooled Mortgage Loan Sellers......
82
SECTION 2.04.
Representations and Warranties of the Depositor.........
86
SECTION 2.05.
Representations and Warranties of PAR as a Master
Servicer................................................
87
SECTION 2.06.
Representations and Warranties of WFB as a Master
Servicer................................................
89
SECTION 2.07.
Representations and Warranties of the Special Servicer..
90
SECTION 2.08.
Representations and Warranties of the Lock Up Storage
Centers Special Servicer................................
91
SECTION 2.09.
Representations and Warranties of the Certificate
Administrator...........................................
91
SECTION 2.10.
Representations and Warranties of the Tax
Administrator...........................................
92
SECTION 2.11.
Representations, Warranties and Covenants of the
Trustee.................................................
93
SECTION 2.12.
Representations and Warranties of the Fiscal Agent......
95
SECTION 2.13.
Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I...............................
96
SECTION 2.14.
Conveyance of the REMIC I Regular Interests; Acceptance
of the REMIC I Regular Interests by Trustee.............
99
SECTION 2.15.
Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain
Matters Involving REMIC II..............................
99
SECTION 2.16.
Conveyance of the REMIC II Regular Interests; Acceptance
of the REMIC II Regular Interests by Trustee............
100
SECTION 2.17.
Creation of REMIC III; Issuance of the REMIC III
Certificates, the REMIC III Components and the REMIC III
Residual Interest; Certain Matters Involving REMIC III..
100
SECTION 2.18.
Acceptance of Grantor Trusts; Issuance of the Class V
and Class R Certificates................................
103
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
General Provisions......................................
105
SECTION 3.02.
Collection of Mortgage Loan Payments....................
109
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts....................
111
SECTION 3.04.
Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account,
Companion Note Custodial Accounts and Subordinate Note
Custodial Accounts......................................
114
SECTION 3.05.
Permitted Withdrawals From the Collection Accounts,
the Distribution Account, the Interest Reserve Account,
the Excess Liquidation Proceeds Account, the Companion
Note Custodial Accounts and the Subordinate Note
Custodial Accounts......................................
121
SECTION 3.06.
Investment of Funds in the Accounts.....................
134
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage...................................
136
SECTION 3.08.
Enforcement of Alienation Clauses.......................
140
SECTION 3.09.
Realization Upon Defaulted Serviced Mortgage Loans......
143
SECTION 3.10.
Trustee to Cooperate; Release of Mortgage Files.........
146
SECTION 3.11.
Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and the Fiscal Agent Regarding Back-up Servicing
Advances................................................
148
SECTION 3.12.
Property Inspections; Collection of Financial
Statements..............................................
155
SECTION 3.13.
Annual Statement as to Compliance.......................
156
SECTION 3.14.
Reports by Independent Public Accountants...............
157
SECTION 3.15.
Access to Information...................................
157
SECTION 3.16.
Title to Administered REO Property; REO Account.........
158
SECTION 3.17.
Management of Administered REO Property.................
160
SECTION 3.18.
Fair Value Option; Sale of Administered REO Properties;
Sale of the Non-Trust- Serviced Pooled Mortgage Loan....
163
SECTION 3.19.
Additional Obligations of Master Servicers and Special
Servicer................................................
168
SECTION 3.20.
Modifications, Waivers, Amendments and Consents.........
171
SECTION 3.21.
Transfer of Servicing Between Applicable Master Servicer
and Special Servicer; Record Keeping....................
176
SECTION 3.22.
Sub-Servicing Agreements and the Primary Servicing
Agreements..............................................
177
SECTION 3.23.
Controlling Class Representative........................
181
SECTION 3.24.
Certain Rights and Powers of the Controlling Class
Representative..........................................
183
SECTION 3.25.
Replacement of Special Servicer.........................
187
SECTION 3.26.
Application of Default Charges..........................
188
SECTION 3.27.
Certain Rights of the Muirwood Apartments Non-Pooled
Subordinate Noteholders.................................
188
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions...........................................
191
SECTION 4.02.
Certificate Administrator Reports; Servicer Reporting...
203
SECTION 4.03.
P&I Advances............................................
212
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses................................................
215
SECTION 4.05.
Calculations............................................
217
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The Certificates........................................
218
SECTION 5.02.
Registration of Transfer and Exchange of Certificates...
218
SECTION 5.03.
Book-Entry Certificates.................................
224
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen Certificates.......
226
SECTION 5.05.
Persons Deemed Owners...................................
226
SECTION 5.06.
Certification by Certificate Owners.....................
226
SECTION 5.07.
Appointment of Authenticating Agents....................
226
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICER
SECTION 6.01.
Liability of the Depositor, the Master Servicers and
the Special Servicer....................................
228
SECTION 6.02.
Merger, Consolidation or Conversion of the Depositor,
a Master Servicer or the Special Servicer...............
228
SECTION 6.03.
Limitation on Liability of the Depositor, the Master
Servicers, the Primary Servicers
and the Special Servicer................................
228
SECTION 6.04.
Resignation of the Master Servicers and the Special
Servicer................................................
230
SECTION 6.05.
Rights of the Depositor and the Trustee in Respect of
the Master Servicers and the Special Servicer...........
231
SECTION 6.06.
Master Servicers and Special Servicer May Own
Certificates............................................
231
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of Default.......................................
233
SECTION 7.02.
Trustee to Act; Appointment of Successor................
237
SECTION 7.03.
Notification to Certificateholders......................
238
SECTION 7.04.
Waiver of Events of Default.............................
238
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default....
238
ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR AND
THE TAX ADMINISTRATOR
SECTION 8.01.
Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator.................
240
SECTION 8.02.
Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator.................
241
SECTION 8.03.
The Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator not Liable for
Validity or Sufficiency of Certificates or Mortgage
Loans...................................................
243
SECTION 8.04.
The Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator May Own
Certificates............................................
243
SECTION 8.05.
Fees and Expenses of the Trustee, the Certificate
Administrator and the Tax Administrator; Indemnification
of and by the Trustee, the Certificate Administrator,
the Tax Administrator and the Fiscal Agent..............
244
SECTION 8.06.
Eligibility Requirements for the Trustee, the
Certificate Administrator and the Tax Administrator.....
245
SECTION 8.07.
Resignation and Removal of the Trustee, the Certificate
Administrator and the Tax Administrator.................
246
SECTION 8.08.
Successor Trustee, Certificate Administrator and Tax
Administrator...........................................
247
SECTION 8.09.
Merger or Consolidation of the Trustee, the Certificate
Administrator or the Tax Administrator..................
248
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee...........
248
SECTION 8.11.
Appointment of Custodians...............................
249
SECTION 8.12.
Access to Certain Information...........................
249
SECTION 8.13.
Appointment of Fiscal Agent.............................
251
SECTION 8.14.
Advance Security Arrangement............................
252
SECTION 8.15.
Exchange Act Reporting..................................
252
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Pooled
Mortgage Loans..........................................
255
SECTION 9.02.
Additional Termination Requirements.....................
257
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
Tax Administration......................................
259
SECTION 10.02.
The Depositor, the Master Servicers, the Special
Servicer and the Fiscal Agent to Cooperate with the Tax
Administrator...........................................
261
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment...............................................
263
SECTION 11.02.
Recordation of Agreement; Counterparts..................
265
SECTION 11.03.
Limitation on Rights of Certificateholders..............
265
SECTION 11.04.
Governing Law...........................................
265
SECTION 11.05.
Notices.................................................
266
SECTION 11.06.
Severability of Provisions..............................
266
SECTION 11.07.
Successors and Assigns; Beneficiaries...................
267
SECTION 11.08.
Article and Section Headings............................
267
SECTION 11.09.
Notices to and from the Rating Agencies and the
Depositor...............................................
267
SECTION 11.10.
Notices to Controlling Class Representative.............
268
SECTION 11.11.
Complete Agreement......................................
268
EXHIBITS
EXHIBIT A-1
Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2
Form of Class R Certificate
EXHIBIT A-3
Form of Class V Certificate
EXHIBIT B
Letters of Representations Among Depositor, Trustee and Initial
Depositary
EXHIBIT C-1
Form of Master Servicer Request for Release
EXHIBIT C-2
Form of Special Servicer Request for Release
EXHIBIT D
Form of Certificate Administrator Report
EXHIBIT E-1
Form of ARCap Interest on Advance Reconciliation Report
EXHIBIT E-2
Form of ARCap Mortgage Loans Delinquent Report
EXHIBIT E-3
Form of ARCap P&I Advances as of Remittance Date Report
EXHIBIT E-4
Form of Realized Loss Report
EXHIBIT E-5
ARCap Naming Convention for Electronic File Delivery
EXHIBIT E-6
Controlling Class Certificateholder's Reports Checklist
EXHIBIT F-1
Form of Transferor Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2A
Form I of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2B
Form II of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2C
Form of Transferee Certificate for Certain Transfers of Interests
in Rule 144A Global Certificates
EXHIBIT F-2D
Form of Transferee Certificate for Certain Transfers of Interests
in Regulation S Global Certificates
EXHIBIT F-3A
Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT F-3B
Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT G-1
Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Physical Form)
EXHIBIT G-2
Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1
Form of Transfer Affidavit and Agreement for Transfers of Class R
Certificates
EXHIBIT H-2
Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT I-1
Form of Notice and Acknowledgment Concerning Replacement of the
Special Servicer
EXHIBIT I-2
Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J
Form of UCC-1 Financing Statement
EXHIBIT K-1
Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2
Information Request from Prospective Investor
EXHIBIT L
Form of Power of Attorney by Trustee
EXHIBIT M
[Reserved]
EXHIBIT N
Form of Final Certification of Trustee
EXHIBIT O
Form of Defeasance Certification
EXHIBIT P
Copy of Nationwide Primary Servicer Undertaking to Indemnify
-v-
SCHEDULES
SCHEDULE I-A
Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B
Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C
Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D
Schedule of PCF Pooled Mortgage Loans
SCHEDULE I-E
Schedule of Nationwide Pooled Mortgage Loans
SCHEDULE II
Schedule of Exceptions to Mortgage File Delivery (under Section
2.02(a))
SCHEDULE III
Schedule of Designated Sub-Servicers
SCHEDULE IV
Reference Rates
SCHEDULE V
Borrower Third-Party Beneficiaries (under Section 2.03)
SCHEDULE VI
Class A-AB Planned Principal Balances
SCHEDULE VII
Closing Date Deposit Mortgage Loans and Related Closing Date
Deposit Amounts
-vi-
This Pooling and Servicing Agreement (this "Agreement"), is dated
and
effective as of December 1, 2005, among BEAR STEARNS COMMERCIAL
MORTGAGE
SECURITIES II INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC.,
as a Master
Servicer, WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Master
Servicer, ARCAP
SERVICING, INC., as Special Servicer, WELLS FARGO BANK, NATIONAL
ASSOCIATION, as
Certificate Administrator and as Tax Administrator, LASALLE BANK
NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in
multiple Classes, which in the aggregate will evidence the entire
beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Pooled Mortgage Loans (exclusive
of certain
amounts payable thereon) and certain other assets as a REMIC for
federal income
tax purposes, and such segregated pool of assets will be designated
as "REMIC
I". The Class R Certificates will represent ownership of (among
other things)
the sole class of "residual interests" in REMIC I for purposes of
the REMIC
Provisions under federal income tax law. The Latest Possible
Maturity Date for
each REMIC I Regular Interest is the Rated Final Distribution Date.
None of the
REMIC I Regular Interests will be certificated.
REMIC II
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a
REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". The Class R Certificates will represent
ownership of
(among other things) the sole class of "residual interests" in
REMIC II for
purposes of the REMIC Provisions under federal income tax law. The
following
table sets forth the designation, the REMIC II Remittance Rate and
the initial
Uncertificated Principal Balance for each of the REMIC II Regular
Interests. The
Latest Possible Maturity Date for each REMIC II Regular Interest is
the Rated
Final Distribution Date. None of the REMIC II Regular Interests
will be
certificated.
REMIC II
Initial Uncertificated
Designation
Remittance Rate
Principal Balance
-----------
---------------
----------------------
A-1-1
Variable (1)
$ 12,322,000
A-1-2
Variable (1)
$ 98,276,000
A-1-3
Variable (1)
$
7,902,000
A-2-1
Variable (1)
$ 97,895,000
A-2-2
Variable (1)
$ 41,505,000
A-3
Variable (1)
$ 59,400,000
A-AB-1
Variable (1)
$
861,000
A-AB-2
Variable (1)
$170,139,000
A-4-1
Variable (1)
$ 39,999,000
A-4-2
Variable (1)
$ 87,632,000
A-4-3
Variable (1)
$125,214,000
A-4-4
Variable (1)
$ 75,314,000
A-4-5
Variable (1)
$721,345,000
A-1A-1
Variable (1)
$
1,574,000
A-1A-2
Variable (1)
$ 12,651,000
A-1A-3
Variable (1)
$ 13,366,000
A-1A-4
Variable (1)
$ 12,917,000
A-1A-5
Variable (1)
$ 12,401,000
A-1A-6
Variable (1)
$ 12,378,000
A-1A-7
Variable (1)
$ 19,911,000
A-1A-8
Variable (1)
$ 10,559,000
A-1A-9
Variable (1)
$210,014,000
A-M
Variable (1)
$263,368,000
A-J
Variable (1)
$210,695,000
B-1
Variable (1)
$
7,275,000
B-2
Variable (1)
$ 12,477,000
C-1
Variable (1)
$
4,339,000
C-2
Variable (1)
$ 25,290,000
D
Variable (1)
$ 23,045,000
E-1
Variable (1)
$
7,784,000
E-2
Variable (1)
$
8,676,000
F
Variable (1)
$ 26,337,000
G-1
Variable (1)
$ 21,152,000
G-2
Variable (1)
$
5,185,000
H-1
Variable (1)
$
5,990,000
H-2
Variable (1)
$ 23,639,000
J
Variable (1)
$ 26,337,000
K-1
Variable (1)
$ 20,235,000
K-2
Variable (1)
$ 15,978,000
L
Variable (1)
$
3,292,000
M
Variable (1)
$
9,876,000
N
Variable (1)
$ 13,168,000
O
Variable (1)
$
6,585,000
P
Variable (1)
$
6,584,000
Q
Variable (1)
$
9,876,000
S
Variable (1)
$ 32,921,672
----------
-2-
(1)
The REMIC II Remittance Rate for each REMIC II Regular Interest
shall be a
variable rate per annum calculated in accordance with the
definition of
"REMIC II Remittance Rate".
REMIC III
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a
REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC III". The Class R Certificates will evidence
ownership of
(among other things) the sole class of "residual interests" in
REMIC III for
purposes of the REMIC Provisions under federal income tax law.
Class Designations of the REMIC III Certificates
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each
Class of the
REMIC III Certificates.
Class
Initial Class
Designation
Pass-Through Rate
Principal Balance
-----------
-----------------
-----------------
Class A-1
5.085% per annum
$
118,500,000
Class A-2
5.270% per annum
$
139,400,000
Class A-3
5.395% per annum
$
59,400,000
Class A-AB
5.382% per annum
$
171,000,000
Class A-4
Variable(1)
$1,049,504,000
A-1A
Variable(1)
$
305,771,000
Class A-M
Variable(1)
$
263,368,000
Class A-J
Variable(2)
$
210,695,000
Class B
Variable(2)
$
19,752,000
Class C
Variable(2)
$
29,629,000
Class D
Variable(2)
$
23,045,000
Class E
Variable(2)
$
16,460,000
Class F
Variable(2)
$
26,337,000
Class G
Variable(2)
$
26,337,000
Class H
Variable(2)
$
29,629,000
Class J
Variable(2)
$
26,337,000
Class K
Variable(2)
$
36,213,000
Class L
Variable(1)
$
3,292,000
Class M
Variable(1)
$
9,876,000
Class N
Variable(1)
$
13,168,000
Class O
Variable(1)
$
6,585,000
Class P
Variable(1)
$
6,584,000
Class Q
Variable(1)
$
9,876,000
Class S
Variable(1)
$
32,921,672
Class X-1
Variable(2)
(3)
Class X-2
Variable(2)
(4)
----------
(1)
The respective Pass-Through Rates for the Class A-4, Class A-1A,
Class A-M,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates will, in the case of each of those Classes, be a rate
per
annum equal to the lesser of a fixed rate per annum (equal to
5.405%,
5.399%, 5.449%, 5.007%, 5.007%, 5.007%, 5.007%, 5.007%, 5.007% and
5.007%,
respectively) and a variable rate, all as calculated in accordance
with the
definition of "Pass-Through Rate".
-3-
(2)
The respective Pass-Through Rates for the Class X-1, Class X-2,
Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J and
Class K Certificates will, in the case of each of those Classes, be
a
variable rate per annum calculated in accordance with the
definition of
"Pass-Through Rate".
(3)
The Class X-1 Certificates will not have a Class Principal Balance
and will
not entitle their Holders to receive distributions of principal.
The Class
X-1 Certificates will have a Class Notional Amount which will be
equal to
the aggregate of the Component Notional Amounts of such Class'
REMIC III
Components from time to time. As more specifically provided herein,
interest in respect of such Class of Certificates will consist of
the
aggregate amount of interest accrued on the respective Component
Notional
Amounts of such Class' REMIC III Components from time to time.
(4)
The Class X-2 Certificates will not have a Class Principal Balance
and will
not entitle their Holders to receive distributions of principal. As
more
specifically provided herein, the Class X-2 Certificates will have
a Class
Notional Amount that from time to time will be equal to the
aggregate of
the Component Notional Amounts of one or more of such Class' REMIC
III
Components from time to time. As more specifically provided herein,
interest in respect of such Class of Certificates will consist of
the
aggregate amount of interest accrued from time to time on the
respective
Component Notional Amounts of one or more of such Class' REMIC III
Components.
Designations of the REMIC III Components
The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably assigned the alphanumeric designation set forth under
the column
heading "REMIC III Component of Class X-1 Certificates" in the
table that
appears under "Corresponding REMIC II Regular Interests". The REMIC
III
Components of the Class X-2 Certificates are hereby irrevocably
assigned the
alphanumeric designation set forth under the column heading "REMIC
III Component
of Class X-2 Certificates" in the table that appears under
"Corresponding REMIC
II Regular Interests".
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each
REMIC
II Regular Interest, the Class of Certificates, REMIC III Component
of the Class
X-1 Certificates and the REMIC III Component of the Class X-2
Certificates for
which such REMIC II Regular Interest constitutes a Corresponding
REMIC II
Regular Interest:
-4-
|
Class X-2 REMIC III Termination Date for REMIC II REMIC III
Component of REMIC III Regular Class of Component of Class Class
Component of Class Interest Certificates X-1 Certificates X-2
Certificates X-2 Certificates -------- ------------
------------------ ---------------- -------------------- A-1-1 A-1
X1-A-1-1 Not Applicable Not Applicable A-1-2 A-1 X1-A-1-2 X2-A-1-2
December 2006 A-1-3 A-1 X1-A-1-3 X2-A-1-3 December 2007 A-2-1 A-2
X1-A-2-1 X2-A-2-1 December 2007 A-2-2 A-2 X1-A-2-2 X2-A-2-2
December 2008 A-3 A-3 X1-A-3 X2-A-3 December 2008 A-AB-1 A-AB
X1-A-AB-1 X2-A-AB-1 December 2008 A-AB-2 A-AB X1-A-AB-2 X2-A-AB-2
December 2009 A-4-1 A-4 X1-A-4-1 X2-A-4-1 December 2009 A-4-2 A-4
X1-A-4-2 X2-A-4-2 December 2010 A-4-3 A-4 X1-A-4-3 X2-A-4-3
December 2011 A-4-4 A-4 X1-A-4-4 X2-A-4-4 December 2012 A-4-5 A-4
X1-A-4-5 X2-A-4-5 December 2013 A-1A-1 A-1A X1-A-1A-1 Not
Applicable Not Applicable A-1A-2 A-1A X1-A-1A-2 X2-A-1A-2 December
2006 A-1A-3 A-1A X1-A-1A-3 X2-A-1A-3 December 2007 A-1A-4 A-1A
X1-A-1A-4 X2-A-1A-4 December 2008 A-1A-5 A-1A X1-A-1A-5 X2-A-1A-5
December 2009 A-1A-6 A-1A X1-A-1A-6 X2-A-1A-6 December 2010 A-1A-7
A-1A X1-A-1A-7 X2-A-1A-7 December 2011 A-1A-8 A-1A X1-A-1A-8
X2-A-1A-8 December 2012 A-1A-9 A-1A X1-A-1A-9 X2-A-1A-9 December
2013 A-M A-M X1-A-M X2-A-M December 2013 A-J A-J X1-A-J X2-A-J
December 2013 B-1 B X1-B-1 X2-B-1 December 2012 B-2 B X1-B-2 X2-B-2
December 2013 C-1 C X1-C-1 X2-C-1 December 2011 C-2 C X1-C-2 X2-C-2
December 2012 D D X1-D X2-D December 2011 E-1 E X1-E-1 X2-E-1
December 2010 E-2 E X1-E-2 X2-E-2 December 2011 F F X1-F X2-F
December 2010 G-1 G X1-G-1 X2-G-1 December 2009 G-2 G X1-G-2 X2-G-2
December 2010 H-1 H X1-H-1 X2-H-1 December 2008 H-2 H X1-H-2 X2-H-2
December 2009 J J X1-J X2-J December 2008 K-1 K X1-K-1 X2-K-1
December 2007 K-2 K X1-K-2 X2-K-2 December 2008 L L X1-L X2-L
December 2007 M M X1-M X2-M December 2007 N N X1-N X2-N December
2007 O O X1-O Not Applicable Not Applicable P P X1-P Not Applicable
Not Applicable Q Q X1-Q Not Applicable Not Applicable S S X1-S Not
Applicable Not Applicable
|
-5-
----------
For federal income tax purposes, each Class of the REMIC III
Certificates will be designated as a separate "regular interest" in
REMIC III.
The Latest Possible Maturity Date for each Class of REMIC III
Certificates is
the Rated Final Distribution Date.
The Initial Pool Balance will be $2,633,679,672, and the initial
aggregate Uncertificated Principal Balance of the REMIC I Regular
Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II
Regular
Interests and the initial aggregate Class Principal Balance of the
respective
Classes of REMIC III Certificates (other than the Class X-1 and
Class X-2
Certificates) will, in each case, be $2,633,679,672.
As described below, there exist one or more Pooled Mortgage Loans
that
are part of split loan structures comprising such Pooled Mortgage
Loan and one
or more other loans that, together with the respective Pooled
Mortgage Loan, are
secured by the same Mortgage encumbering the related Mortgaged
Properties, which
other loans are, in each case, pari passu in right of payment to
the related
Pooled Mortgage Loan or subordinate in right of payment to the
related Pooled
Mortgage Loan.
The Westin Copley Place Pooled Mortgage Loan is part of a split
loan
structure comprising The Westin Copley Place Pooled Mortgage Loan
and The Westin
Copley Place Non-Pooled Pari Passu Companion Loan. The relative
rights of the
holder of The Westin Copley Place Pooled Mortgage Loan and the
holder of The
Westin Copley Place Non-Pooled Pari Passu Companion Loan are set
forth in the
BSCMSI Series 2005-TOP20 PSA and/or The Westin Copley Place
Intercreditor
Agreement, which provide that the entire Westin Copley Place Loan
Group is to be
serviced and administered in accordance with the BSCMSI Series
2005-TOP20 PSA.
The Muirwood Apartments Pooled Mortgage Loan is part of a split
loan
structure comprising the Muirwood Apartments Pooled Mortgage Loan
and the
Muirwood Apartments Non-Pooled Subordinate Loans. The relative
rights of the
holder of the Muirwood Apartments Pooled Mortgage Loan and the
holder of the
Muirwood Apartments Non-Pooled Subordinate Loans are set forth in
the Muirwood
Apartments Intercreditor Agreement, which provides that the
Muirwood Apartments
Loan Group is to be serviced and administered in accordance with
this Agreement,
by the Trustee, the Fiscal Agent, the Certificate Administrator,
the applicable
Master Servicer and the Special Servicer.
The Chapanoke Square Pooled Mortgage Loan is part of a split loan
structure comprising the Chapanoke Square Pooled Mortgage Loan and
the Chapanoke
Square Non-Pooled Subordinate Loan. The relative rights of the
holder of the
Chapanoke Square Pooled Mortgage Loan and the holder of the
Chapanoke Square
Non-Pooled Subordinate Loan are set forth in the Chapanoke Square
Intercreditor
Agreement, which provides that the Chapanoke Square Loan Group is
to be serviced
and administered in accordance with this Agreement, by the Trustee,
the Fiscal
Agent, the Certificate Administrator, the applicable Master
Servicer and the
Special Servicer.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, the Special Servicer, the
Certificate
Administrator, the Tax Administrator, the Trustee and the Fiscal
Agent hereby
agree, in each case, as follows:
-6-
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings
specified in this
Section 1.01, subject to modification in accordance with Section
1.04.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"ABN AMRO": ABN AMRO Bank N.V. or its successor in interest.
"Accrued Certificate Interest": The interest accrued from time to
time
with respect to any Class of REMIC III Certificates, the amount of
which
interest shall equal: (a) in the case of any Class of Principal
Balance
Certificates for any Interest Accrual Period, one-twelfth of the
product of (i)
the Pass-Through Rate applicable to such Class of REMIC III
Certificates for
such Interest Accrual Period, multiplied by (ii) the Class
Principal Balance of
such Class of REMIC III Certificates outstanding immediately prior
to the
related Distribution Date; and (b) in the case of either Class of
Interest Only
Certificates for any Interest Accrual Period, the aggregate amount
of Accrued
Component Interest for all of such Class' REMIC III Components for
such Interest
Accrual Period.
"Accrued Component Interest": The interest accrued from time to
time
with respect to any REMIC III Component of either Class of Interest
Only
Certificates, the amount of which interest shall equal, for any
Interest Accrual
Period, one-twelfth of the product of (i) either (A) in the case of
a REMIC III
Component of the Class X-1 Certificates, the Class X-1 Strip Rate
applicable to
such REMIC III Component for such Interest Accrual Period, or (B)
in the case of
a REMIC III Component of the Class X-2 Certificates, the Class X-2
Strip Rate
applicable to such REMIC III Component for such Interest Accrual
Period,
multiplied by (ii) the Component Notional Amount of such REMIC III
Component
outstanding immediately prior to the related Distribution Date.
"Actual/360 Basis": The accrual of interest calculated on the basis
of
the actual number of days elapsed during any calendar month (or
other applicable
recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest
on
an Actual/360 Basis.
"Additional Collateral": Any non-real property collateral
(including
any Letter of Credit and Reserve Funds) pledged and/or delivered by
or on behalf
of the related Borrower and held by the related Mortgagee to secure
payment on
any Mortgage Loan.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise
included in the
calculation of a Realized Loss, that would result in the Holders of
the
Certificates (other than the Class R and Class V Certificates)
receiving less
than the full amount of principal and/or Distributable Certificate
Interest to
which they are entitled on any Distribution Date.
-7-
"Additional Yield Amount": As defined in Section 4.01(c).
"Administered REO Property": Any REO Property other than any REO
Property related to a Non-Trust-Serviced Pooled Mortgage Loan.
"Administrative Fee Rate": With respect to each Pooled Mortgage
Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), a
rate per
annum equal to the sum of (i) the Servicer Report Administrator Fee
Rate; (ii)
the Trustee Fee Rate, (iii) the related Master Servicing Fee Rate
and (iv) if
(and only if) such Pooled Mortgage Loan constitutes a
Non-Trust-Serviced Pooled
Mortgage Loan, the rate per annum equal to the rate per annum at
which
comparable administrative fees payable under the applicable
Non-Trust Servicing
Agreement accrue.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": The interest accrued on any Advance (other than
any Unliquidated Advance) at the Reimbursement Rate, which is
payable to the
party hereto that made that Advance, all in accordance with Section
3.11(g) or
Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust Pool as a Grantor Trust; or (ii) the
imposition of a
tax upon any Grantor Trust Pool or any of its assets or
transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating
thereto, as of
any date of determination, the qualification, downgrade or
withdrawal of the
rating then assigned to such Class of Rated Certificates by such
Rating Agency
(or the placing of such Class of Rated Certificates on "negative
credit watch"
status in contemplation of any such action with respect thereto)
and, solely
with respect to matters affecting any Mortgage Loan Group that
includes one or
more Serviced Non-Pooled Pari Passu Companion Loans, with respect
to such
Mortgage Loan Group and any related class of Non-Pooled Pari Passu
Companion
Loan Securities and each Rating Agency that has assigned a rating
thereto, as of
any date of determination, the qualification, downgrade or
withdrawal of the
rating then assigned to such class of Non-Pooled Pari Passu
Companion Loan
Securities by such Rating Agency (or, in each case, the placing of
such class on
"negative credit watch" status in contemplation of any such action
with respect
thereto).
"Adverse REMIC Event": Either: (i) any impairment of the status of
any
REMIC Pool as a REMIC; or (ii) except as permitted by Section
3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or
transactions
(including the tax on prohibited transactions as defined in Section
860F(a)(2)
of the Code, the tax on contributions under Section 860G(d) of the
Code and the
tax on income from foreclosure property under Section 860G(c) of
the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"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.
"Agreement": This Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing
Date.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
-8-
"Anticipated Repayment Date": With respect to any ARD Mortgage
Loan,
the date specified in the related Mortgage Note, as of which
Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is
prior to the
Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (1) the laws of the State of New York; (2) to
the extent
brought to the attention of the Tax Administrator (by either (i) an
Opinion of
Counsel delivered to it or (ii) written notice from the appropriate
taxing
authority as to the applicability of such state law), (a) the laws
of the states
in which the Corporate Trust Offices of the Certificate
Administrator and the
Trustee and the Primary Servicing Offices of the Master Servicers
and the
Special Servicer are located and (b) the laws of the states in
which any
Mortgage Loan Documents are held and/or any REO Properties are
located; and (3)
such other state or local law as to which the Tax Administrator has
actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as
to which an appraisal is required to be performed pursuant to the
terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the
case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated
Principal
Balance as of the date of such appraisal of $2,000,000 or less, at
the Special
Servicer's option, either a limited appraisal and a summary report
or an
internal valuation prepared by the Special Servicer) that (i)
indicates the
"market value" of the subject property (within the meaning of 12
CFR Section
225.62(g)) and (ii) is conducted by a Qualified Appraiser (except
that, in the
case of a Pooled Mortgage Loan or an REO Pooled Mortgage Loan with
a Stated
Principal Balance as of the date of such appraisal of $2,000,000 or
less, the
appraiser may be an employee of the Special Servicer, which
employee need not be
a Qualified Appraiser but shall have experience in commercial
and/or multifamily
properties, as the case may be, and possess sufficient knowledge to
value such a
property).
"Appraisal Reduction Amount": With respect to any Serviced Mortgage
Loan that is a Required Appraisal Loan, an amount (calculated
initially as of
the Determination Date immediately following the later of the date
on which the
subject Pooled Mortgage Loan became a Required Appraisal Loan and
the date on
which the applicable Appraisal was obtained) equal to the excess,
if any, of:
(a) the sum of, without duplication, (i) the Stated Principal
Balance of such Required Appraisal Loan, (ii) to the extent not
previously
advanced by or on behalf of the applicable Master Servicer, the
Trustee or
the Fiscal Agent, all unpaid interest on such Required Appraisal
Loan
through the most recent Due Date prior to the date of calculation
(exclusive of any portion thereof that represents Post-ARD
Additional
Interest and/or Default Interest), (iii) all accrued and unpaid
Special
Servicing Fees in respect of such Required Appraisal Loan, (iv) all
related
unreimbursed Advances (together with Unliquidated Advances) made by
or on
behalf of (plus all accrued and unpaid interest on such Advances
(other
than Unliquidated Advances)) payable to) the applicable Master
Servicer,
the Special Servicer, the Trustee and/or the Fiscal Agent with
respect to
such Required Appraisal Loan, (v) any other outstanding Additional
Trust
Fund Expenses with respect to such Required Appraisal Loan, and
(vi) all
currently due and unpaid real estate taxes and assessments,
insurance
premiums and, if applicable, ground rents, and any unfunded
improvement or
other applicable reserves, in respect of the related Mortgaged
Property or
REO Property, as the case may be (in each case, net of any amounts
escrowed
with the applicable Master Servicer or the Special Servicer for
such
items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i)
90% of the Appraised Value of the related Mortgaged Property (or
REO
Property) as determined by the most recent Appraisal or any letter
update
of such Appraisal, over (ii) the amount of any obligations secured
by liens
on such Mortgaged Property (or REO Property) that are prior to the
lien of
the related Required Appraisal Loan; plus (b) the amount of any
Escrow
Payments and/or Reserve Funds held by the applicable Master
Servicer or the
Special Servicer with respect to such Required Appraisal Loan, the
related
Mortgaged Property or any related REO Property that (i) are not
being held
in respect of any real estate taxes and assessments, insurance
premiums or,
if applicable, ground rents, (ii) are not otherwise scheduled to be
applied
or utilized (except to pay debt service on such Required Appraisal
Loan)
within the twelve-month period following the date of determination
and
(iii) may be applied towards the reduction of the principal balance
of such
Required Appraisal Loan; plus (c) the amount of any Letter
-9-
of Credit constituting additional security for such Required
Appraisal Loan
and that may be applied towards the reduction of the principal
balance of
such Required Appraisal Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Appraisal or update
thereof has been
obtained or conducted, as applicable, in accordance with Section
3.19(a), with
respect to the related Mortgaged Property or REO Property, as the
case may be,
during the 12-month period prior to the date such Mortgage Loan
became a
Required Appraisal Loan or (B) there shall have occurred since the
date of the
most recent Appraisal or update thereof a material change in the
circumstances
surrounding the related Mortgaged Property or REO Property, as the
case may be,
that would, in the Special Servicer's reasonable judgment,
materially affect the
value of the related Mortgaged Property or REO Property, as the
case may be, and
(iii) no new Appraisal is obtained or conducted, as applicable, in
accordance
with Section 3.19(a), within 60 days after such Mortgage Loan
became a Required
Appraisal Loan, then (x) until such new Appraisal is obtained or
conducted, as
applicable, in accordance with Section 3.19(a), the Appraisal
Reduction Amount
shall equal 25% of the Stated Principal Balance of such Required
Appraisal Loan,
and (y) upon receipt or performance, as applicable, in accordance
with Section
3.19(a), of such Appraisal or update thereof by the Special
Servicer, the
Appraisal Reduction Amount for such Required Appraisal Loan shall
be
recalculated in accordance with the preceding sentence of this
definition.
In connection with the foregoing, each Cross-Collateralized
Mortgage
Loan that is part of a single Cross-Collateralized Group shall be
treated
separately (in each case as a single Mortgage Loan without regard
to the
cross-collateralization and cross-default provisions) for purposes
of
calculating an Appraisal Reduction Amount.
Notwithstanding the foregoing, as of any date of determination, all
of
the following provisions shall apply in connection with each
Serviced Mortgage
Loan Group: (i) for purposes of the definition of "Muirwood
Apartments Change of
Control Event", an Appraisal Reduction Amount shall be calculated
with respect
to the entirety of the applicable Mortgage Loan Group as if it were
a single
"Serviced Pooled Mortgage Loan" and allocated first to the related
Non-Pooled
Subordinate Loans up to the full aggregate principal balance
thereof; (ii) if
such Mortgage Loan Group then includes one or more Serviced
Non-Pooled Pari
Passu Companion Loans (whether or not such Mortgage Loan Group also
then
includes one or more Non-Pooled Subordinate Loans), then, for
purposes of the
proviso to Section 4.03(b) and any other applicable purpose
relating to the
Pooled Mortgage Loans and the Non-Pooled Pari Passu Companion
Loans, an
Appraisal Reduction Amount shall be calculated with respect to the
entire
indebtedness evidenced by the Pooled Mortgage Loan included in such
Mortgage
Loan Group and such Non-Pooled Pari Passu Companion Loans (but not
any related
Serviced Non-Pooled Subordinate Loan included in such Mortgage Loan
Group) as if
they were a single "Serviced Pooled Mortgage Loan" and allocated to
such Pooled
Mortgage Loan and Non-Pooled Pari Passu Companion Loans up to the
aggregate of,
and on a pro rata basis in accordance with, the respective
outstanding principal
balances of such Mortgage Loans; and (iii) for all purposes (if
any) other than
as set forth in the immediately preceding clauses (i) and (ii), an
Appraisal
Reduction Amount shall be calculated solely with respect to the
Pooled Mortgage
Loan included in such Mortgage Loan Group.
An Appraisal Reduction Amount with respect to any Pooled Mortgage
Loan
will be reduced to zero as of the date on which all Servicing
Transfer Events
have ceased to exist with respect to such Mortgage Loan and at
least 90 days
have passed following the occurrence of the most recent Appraisal
Trigger Event.
No Appraisal Reduction Amount will exist as to any Pooled Mortgage
Loan after it
has been paid in full or it (or the REO Property) has been
liquidated or
otherwise disposed of.
Notwithstanding the foregoing, with respect to each
Non-Trust-Serviced
Pooled Mortgage Loan, the Appraisal Reduction Amount shall be the
"appraisal
reduction amount" calculated by the applicable Non-Trust Master
Servicer
pursuant to the applicable Non-Trust Servicing Agreement and the
parties hereto
shall be entitled to rely on such calculations as reported to them
by the
applicable Non-Trust Master Servicer.
"Appraisal Trigger Event": As defined in Section 3.19(a).
-10-
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent
Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARCap Interest on Advance Reconciliation Report": The report in
the
form of and containing the information provided for on Exhibit E-1
hereto. The
ARCap Interest on Advance Reconciliation Report shall be in Excel
format or such
other format as is reasonably acceptable to the Master Servicers,
the
Certificate Administrator and the Controlling Class Representative.
"ARCap Mortgage Loans Delinquent Report": The report in the form of
and containing the information provided for on Exhibit E-2 hereto.
The ARCap
Mortgage Loans Delinquent Report shall be in Excel format or such
other format
as is reasonably acceptable to the Master Servicers, the
Certificate
Administrator and the Controlling Class Representative.
"ARCap Naming Convention for Electronic File Delivery": The naming
convention for electronic file delivery set forth on Exhibit E-5
hereto.
"ARCap P&I Advances as of Remittance Date Report": The report
in the
form of and containing the information provided for on Exhibit E-3
hereto. The
ARCap P&I Advances as of Remittance Date Report shall be in
Excel format or such
other format as is reasonably acceptable to the Master Servicers,
the
Certificate Administrator and the Controlling Class Representative.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual
of
Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full
on or prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the related Borrower in connection with the origination
of the
related Mortgage Loan(s), as such assignment may be amended,
modified, renewed
or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage
Loan that is a Balloon Mortgage Loan delinquent in respect of its
Balloon
Payment beyond the Determination Date immediately following its
scheduled
maturity date (as such date may be extended in connection with a
bankruptcy,
insolvency or similar proceeding involving the related Borrower or
by reason of
a modification, waiver or amendment granted or agreed to by the
applicable
Master Servicer or the Special Servicer), for that scheduled
maturity date and
for each subsequent Due Date as of which such Pooled Mortgage Loan
remains
outstanding and part of the Trust Fund, the scheduled monthly
payment of
principal and/or interest deemed to be due with respect to such
Pooled Mortgage
Loan on such Due Date equal to the amount (exclusive of Default
Interest) that
would have been due in respect thereof on such Due Date if such
Pooled Mortgage
Loan had been required to continue to accrue interest in accordance
with its
terms, and to pay principal in accordance with the amortization
schedule (if
any), in effect immediately prior to, and without regard to the
occurrence of,
such maturity date; and (b) any REO Pooled Mortgage Loan, for any
Due Date as of
which the related REO Property (or, in the case of any REO Pooled
Mortgage Loan
that is a successor to any Pooled Mortgage Loan in a Mortgage Loan
Group, any
interest in the related REO Property) remains part of the Trust
Fund, the
scheduled monthly payment of principal and/or interest deemed to be
due in
respect thereof on such Due Date equal to the Monthly Payment (or,
in the case
of a Balloon Mortgage Loan described in clause (b) of this
definition, the
Assumed Monthly Payment) that was due (or deemed due) with respect
to the
related Pooled Mortgage Loan on the last Due Date prior to its
becoming an REO
Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
-11-
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 5.07 (or, in the absence of any such appointment, the
Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) all amounts on deposit
in the
Distribution Account as of 11:00 a.m., New York City time, on such
Distribution
Date, (ii) to the extent not included in the amount described in
clause (a)(i)
of this definition, any P&I Advances and/or Compensating
Interest Payments that
were made hereunder in respect of such Distribution Date, (iii) to
the extent
not included in the amount described in clause (a)(i) of this
definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the
Excess
Liquidation Proceeds Account to the Distribution Account in respect
of such
Distribution Date, and (iv) to the extent not included in the
amount described
in clause (a)(i) of this definition, if such Distribution Date
occurs during the
month of March of 2006 or any year thereafter, the aggregate of the
Interest
Reserve Amounts with respect to the Interest Reserve Loans
transferred from the
Interest Reserve Account to the Distribution Account during such
month of March
for distribution on such Distribution Date, net of (b) any portion
of the
amounts described in clause (a) of this definition that represents
one or more
of the following: (i) collected Monthly Payments that are due on a
Due Date
following the end of the related Collection Period (other than, in
the case of
any Pooled Mortgage Loan for which the Due Date is on a day other
than the first
day of each month and such day in the current month happens to be
later than the
end of such related Collection Period, in which case such collected
Monthly
Payment shall not be withheld until the following month as
otherwise
contemplated by this clause (i)), (ii) any payments of principal
(including
Principal Prepayments) and interest, Insurance Proceeds,
Condemnation Proceeds
and Liquidation Proceeds Received by the Trust after the end of the
related
Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges
and/or Post-ARD Additional Interest, (iv) any amounts payable or
reimbursable to
any Person from the Distribution Account pursuant to clauses (iii)
through
(viii) of Section 3.05(b), (v) if such Distribution Date occurs
during the month
of February of 2006 or any year thereafter or during the month of
January of
2006 or any year thereafter that is not a leap year, the aggregate
of the
Interest Reserve Amounts with respect to the Interest Reserve Loans
to be
withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii))
from the
Distribution Account and deposited into the Interest Reserve
Account during such
month of February or such month of January, as the case may be, and
held for
future distribution, and (vi) any amounts deposited in the
Distribution Account
in error; provided that the Available Distribution Amount for the
Final
Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii)
and (b)(v) of this definition.
For purposes of determining the portion of the Available
Distribution
Amount that is attributable to Loan Group 1 or Loan Group 2 in
connection with
any Distribution Date, if the portion of the Principal Distribution
Amount
otherwise attributable to such Loan Group is increased (or
decreased) on account
of one or more Pooled Mortgage Loans that are not included in such
Loan Group
pursuant to the definition of "Principal Distribution Amount", then
the portion
of the Available Distribution Amount that is otherwise attributable
to such Loan
Group in connection with such Distribution Date shall be likewise
increased (or
decreased) by the same amount and the portion of the Available
Distribution
Amount that is otherwise attributable to the Loan Group that
includes such
Pooled Mortgage Loan shall be decreased (or increased) by the same
amount.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms
or by virtue of any modification entered into as of the Closing
Date (or, in the
case of a Replacement Pooled Mortgage Loan, as of the related date
of
substitution) provides for an amortization schedule extending
beyond its Stated
Maturity Date and as to which, in accordance with such terms, the
Monthly
Payment due on its Stated Maturity Date is at least 5% of the
original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any
date of determination, the Monthly Payment payable on the Stated
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 Prospectus": That certain prospectus dated December 1, 2005
relating to trust funds established by the Depositor and publicly
offered
mortgage pass-through certificates evidencing interests therein.
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"Book-Entry Certificate": Any Certificate registered in the name of
the Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear Stearns Commercial Mortgage, Inc., or its successor
in
interest.
"BSCMI Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either
an Original BSCMI Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan
that was delivered under the BSCMI Pooled Mortgage Loan Purchase
Agreement in
substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage
Loan Purchase and Sale Agreement dated as of December 9, 2005,
between BSCMI as
seller and the Depositor as purchaser.
"BSCMSI": Bear Stearns Commercial Mortgage Securities Inc.
"BSCMSI Series 2005-TOP20 PSA": That certain Pooling and Servicing
Agreement, dated as of October 1, 2005, among BSCMSI, as depositor,
WFB, as
master servicer, ARCap Servicing, Inc., as special servicer,
LaSalle, as
trustee, WFB, as paying agent and certificate registrar and ABN
AMRO, as fiscal
agent, relating to the Bear Stearns Commercial Mortgage Trust
2005-TOP20,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or
any of the
jurisdictions in which the respective Primary Servicing Offices of
the Master
Servicers, the Primary Servicers and the Special Servicer and the
Corporate
Trust Offices of the Certificate Administrator and the Trustee are
located, are
authorized or obligated by law or executive order to remain closed.
"Category 1 Request": In connection with the PCF Pooled Mortgage
Loans, a "Category 1 Request" and a "Deemed Category 1 Request" as
such terms
are defined in the PCF Primary Servicing Agreement.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2005-PWR10 Commercial
Mortgage Pass-Through Certificates, as executed by the Certificate
Administrator
and authenticated and delivered hereunder by the Certificate
Registrar.
"Certificate Administrator": WFB, in its capacity as certificate
administrator hereunder, or any successor certificate administrator
appointed as
herein provided.
"Certificate Administrator Fee": That portion of the Trustee Fee
payable to the Certificate Administrator in an amount agreed to by
the Trustee
and the Certificate Administrator.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Interest Only
Certificates or Principal Balance Certificates, as of any date of
determination,
a fraction, expressed as a decimal carried to eight places, the
numerator of
which is the related Class Principal Balance or Class Notional
Amount, as the
case may be, then outstanding, and the
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denominator of which is the related Class Principal Balance or
Class Notional
Amount, as the case may be, outstanding as of the Closing Date.
"Certificate Group 1 Principal Distribution Amount": As defined in
Section 4.01(a).
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided,
however, that:
(i) neither a Disqualified Organization nor a Non-United States Tax
Person shall
be a "Holder" of, or a "Certificateholder" with respect to, a Class
R
Certificate for any purpose hereof; and (ii) solely for purposes of
giving any
consent, approval, direction or waiver pursuant to this Agreement
that
specifically relates to the rights, duties and/or obligations
hereunder of any
of the Depositor, a Master Servicer, the Special Servicer, the Tax
Administrator, the Certificate Administrator, the Trustee or the
Fiscal Agent in
its respective capacity as such (other than any consent, approval
or waiver
contemplated by Sections 3.24 and/or 3.27), any Certificate
registered in the
name of such party or in the name of 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
that
specifically relates to such party has been obtained. The
Certificate Registrar
shall be entitled to request and conclusively rely upon a
certificate of the
Depositor, a Master Servicer or the Special Servicer in determining
whether a
Certificate is registered in the name of an Affiliate of such
Person. All
references herein to "Certificateholders" or "Holders" shall
reflect the rights
of Certificate Owners only insofar as they may indirectly exercise
such rights
through the Depository and the Depository Participants (except as
otherwise
specified herein), it being herein acknowledged and agreed that the
parties
hereto shall be required to recognize as a "Certificateholder" or
"Holder" only
the Person in whose name a Certificate is registered in the
Certificate
Register.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional
principal amount
on which such Certificate accrues interest, equal to the product of
(a) the then
Certificate Factor for the Class of Interest Only Certificates to
which such
Certificate belongs, multiplied by (b) the amount specified on the
face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any 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 Principal Balance": With respect to any Principal
Balance
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the then
Certificate
Factor for the Class of Principal Balance Certificates to which
such Certificate
belongs, multiplied by (b) the amount specified on the face of such
Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certification Parties": As defined in Section 8.15(b).
"Certifying Person": As defined in Section 8.15(b).
"Chapanoke Square Intercreditor Agreement": That certain Co-Lender
Agreement, dated as of June 30, 2005, by and between WFB, as
initial A note
holder, and CBA-Mezzanine Capital Finance, LLC, as initial B note
holder,
relating to certain mortgage loans secured by the Chapanoke Square
Mortgaged
Property.
"Chapanoke Square Loan Group": Collectively, the Chapanoke Square
Pooled Mortgage Loan and the Chapanoke Square Non-Pooled
Subordinate Loan
(including any successor REO Mortgage Loans with respect to such
loans).
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"Chapanoke Square Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Chapanoke
Square".
"Chapanoke Square Non-Pooled Subordinate Loan": The mortgage loan
with
an original principal balance of $354,000 that is secured by the
same Mortgage
encumbering the Chapanoke Square Mortgaged Property as the
Chapanoke Square
Pooled Mortgage Loan and is subordinate in right of payment to the
Chapanoke
Square Pooled Mortgage Loan and is held as of the Closing Date by
CBA-Mezzanine
Capital Finance, LLC. The Chapanoke Square Non-Pooled Subordinate
Loan is not a
"Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool or
any Grantor
Trust Pool.
"Chapanoke Square Non-Pooled Subordinate Noteholder": The holder or
holders of the related Mortgage Note evidencing the Chapanoke
Square Non-Pooled
Subordinate Loan.
"Chapanoke Square Pooled Mortgage Loan": The Pooled Mortgage Loan
in
the original principal amount of $6,000,000 that is secured by the
Mortgage
encumbering the Chapanoke Square Mortgaged Property.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same
payment terms.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of business on which (i)
two or more
Classes of the Class A Senior REMIC III Certificates remain
outstanding and (ii)
the aggregate of the Class Principal Balances of the Class A-M,
Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class
L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates have
previously been reduced to zero as a result of the allocation of
Realized Losses
and Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Class A Senior REMIC III Certificates": The Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate": Any one of the Certificates with a "Class
A-AB" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class A-AB Planned Principal Balance" For any Distribution Date,
the
principal balance set forth opposite such Distribution Date on
Schedule VI
attached hereto.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional
amount
on which any Class of Interest Only Certificates accrues or is
deemed to accrue
interest from time to time, as calculated in accordance with
Section 2.17(e).
"Class O Certificate": Any of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class P Certificate": Any of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Principal Balance Certificates outstanding as of any date
of
determination. As of the Closing Date, the Class Principal Balance
of each Class
of Principal Balance Certificates shall equal the initial Class
Principal
Balance thereof. On each Distribution Date, the Class Principal
Balance of each
Class of Principal Balance Certificates shall be (i) reduced by the
amount of
any distributions of principal made thereon on such Distribution
Date pursuant
to Section 4.01, and (ii) further reduced by the amount of any
Realized Losses
and Additional Trust Fund Expenses deemed allocated thereto on such
Distribution
Date pursuant to Section 4.04(a); provided, however, that if the
Principal
Distribution Amount for such Distribution Date includes any amount
described in
clause (I)(C) of the definition of "Principal Distribution Amount"
(in respect
of recoveries during the Collection Period related to such
Distribution Date of
amounts determined to constitute Nonrecoverable Advances during a
Collection
Period related to a prior Distribution Date), then the Class
Principal Balances
of the respective Classes of Principal Balance Certificates shall
hereby be
increased (in the aggregate) immediately prior to such Distribution
Date by the
lesser of the amount of Realized Losses previously allocated
thereto and such
amount described in such clause (I)(C) (and, as among the
respective Classes of
Principal Balance Certificates, such increase shall be allocated,
first, to the
Class A Senior Certificates, pro rata according to the amounts of
Realized
Losses previously allocated to the respective Classes of Class A
Senior REMIC
III Certificates, second, to the Class A-M Certificates, third to
the Class A-J
Certificates and, then to the other Classes of Principal Balance
Certificates in
sequential order according to alphabetical Class designation, in
each case to
the extent of the lesser of the Realized Losses previously
allocated thereto and
the remaining unallocated portion of the increase).
"Class Q Certificate": Any of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
"Class S Certificate": Any of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
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"Class X-1 Certificate": Any of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-1 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Certificate": Any of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-2 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Termination Date": With respect to each REMIC III
Component
of the Class X-2 Certificates, the Distribution Date that occurs in
the month
set forth opposite such REMIC III Component in the Preliminary
Statement under
the column entitled "Class X-2 Termination Date for REMIC III
Component of Class
X-2 Certificates" in the table entitled "REMIC III--Corresponding
REMIC II
Regular Interests".
"Clearstream": Clearstream Banking, societe anonyme or any
successor.
"Closing Date": December 20, 2005.
"Closing Date Deposit Amount": With respect to each Closing Date
Deposit Mortgage Loan, a cash amount to be deposited by the related
Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase
Agreement, as set forth on Schedule VII, which cash amount
represents (a) as to
the Pooled Mortgage Loan secured by the Mortgaged Property
identified on the
Pooled Mortgage Loan Schedule as "Marcus Avenue", the aggregate
amount of
interest that would have accrued on the related Cut-off Date
Principal Balance
of such Closing Date Deposit Mortgage during the entire month of
December 2005
at the Mortgage Rate set forth on the Pooled Mortgage Loan Schedule
as if such
Mortgage Loan accrued interest at such rate for the entirety of
such month, and
(b) as to each other such Pooled Mortgage Loan, the aggregate
amount of interest
that would have accrued on the related Cut-off Date Principal
Balance of such
Closing Date Deposit Mortgage during the entire month of December
2005 at the
related Mortgage Rate as if such Mortgage Loan accrued interest for
such month.
"Closing Date Deposit Mortgage Loan": Any Mortgage Loan set forth
on
Schedule VII, for which Mortgage Loan a Monthly Payment is not due
in January
2006.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, 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 one of whose
principal
purposes 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 reasonably
acceptable to each Master Servicer, each Primary Servicer, the
Certificate
Administrator, the Trustee, the Special Servicer and the
Controlling Class
Representative.
"CMSA Advance Recoverability Report": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Advance Recoverability Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed
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securities transactions generally and is reasonably acceptable to
each Master
Servicer, the Special Servicer, the Certificate Administrator and
the Trustee.
The preparation of each CMSA Advance Recoverability Report shall
constitute a
responsibility of the applicable Master Servicer and shall not
constitute a
responsibility of any other party. Each CMSA Loan Periodic Update
File prepared
by a Master Servicer shall be accompanied by a CMSA Advance
Recoverability
Report. Notwithstanding anything in this Agreement to the contrary,
the
applicable Master Servicer shall not be required to deliver a CMSA
Advance
Recoverability Report (and the relevant CMSA Loan Periodic Update
File need not
be accompanied by any such report) with respect to any Collection
Period prior
to the date when a Workout-Delayed Reimbursement Amount or a
Nonrecoverable
Advance exists with respect to any Pooled Mortgage Loan for which
such Master
Servicer is the applicable Master 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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to the Certificate Administrator and 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
"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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to the Certificate Administrator and 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 recommended by the CMSA for commercial
mortgage-backed
securities transactions generally and is reasonably acceptable to
each Master
Servicer and the Special Servicer. Each CMSA Comparative Financial
Status Report
shall be based on (1) the most recent rent roll and (2) to the
extent provided
to the applicable Master Servicer or the Special Servicer, (i) in
connection
with a CMSA Comparative Financial Status Report relating to
quarterly financial
information, trailing 12 months of financial information
(non-normalized), if
trailing 12 months of financial information was provided to the
applicable
Master Servicer or the Special Servicer (as the case may be), or
financial
information based on 9 months of operating statements or
year-to-date financial
information, if trailing 12 months of financial information was not
provided to
the applicable Master Servicer or the Special Servicer (as the case
may be) and
9 months of operating statements or year-to-date financial
information was
provided to the applicable Master Servicer or the Special Servicer
(as the case
may be) or (ii) in connection with a CMSA Comparative Financial
Status Report
relating to annual financial information, annual operating
statements (if
provided to the applicable Master Servicer or the Special Servicer
(as the case
may be)), normalized. To the extent the information described above
has been
provided to the applicable Master Servicer or the Special Servicer,
each CMSA
Comparative Financial Status Report shall present (among other
things called for
by the form of CMSA Comparative Financial Status Report) the
occupancy rate,
debt service coverage ratio, net operating income and net cash flow
for each
Mortgage Loan or Mortgaged Property covered thereby.
"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
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer and the Special
Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to each Master Servicer.
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"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
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer and the Special
Servicer.
"CMSA Historical Loan Modification Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Historical Loan Modification 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
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally and is reasonably acceptable to each Master Servicer and
the Special
Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following 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 and (vi) CMSA Collateral
Summary
File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification 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 Report, (x) CMSA
Reconciliation of
Funds Report and (xi) CMSA Special Servicer Loan File.
Notwithstanding anything in this Agreement to the contrary, in the
event any of the electronic files listed in clause (a) of this
definition or any
of the supplemental reports listed in clause (b) of this definition
are amended
or changed in any material respect by the CMSA and placed on the
CMSA Website or
otherwise recommended by the CMSA for commercial mortgage-backed
securities
transactions generally, so long as such electronic files and such
supplemental
reports are reasonably acceptable (as applicable) to each Master
Servicer and
the Special Servicer, then same shall be used with respect to the
Collection
Period that commences at any time following the date that is not
later than
three (3) months following adoption of the form thereof by the
CMSA.
"CMSA Loan Level Reserve Report": A report substantially in the
form
of, and containing the information called for in, the "Loan Level
Reserve
Report" as adopted by the CMSA and made available at the CMSA
Website.
"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 "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
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer, the Special
Servicer, the
Certificate Administrator 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 "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 recommended by the CMSA for
commercial
mortgage-backed securities transactions generally and is reasonably
acceptable
to each Master Servicer, the Special Servicer, the Certificate
Administrator and
the Trustee. The CMSA Loan Setup File shall indicate (based solely
on the Pooled
Mortgage Loan Schedule) whether each related Pooled Mortgage Loan
presented
therein is contained in Loan Group 1 or Loan Group 2.
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"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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to each Master Servicer and the Special Servicer and in
any event,
shall present the computations made in accordance with the
methodology described
in such form to "normalize" the full year net operating income and
debt service
coverage numbers used in the other reports required by this
Agreement.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "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 recommended by the CMSA for
commercial
mortgage-backed securities transactions generally and is reasonably
acceptable
to each Master Servicer and the Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially
in
the form of, and containing 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
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally and is reasonably acceptable to each Master Servicer.
"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 in such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to the Certificate Administrator.
"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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": 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 adopted by the
CMSA for
commercial mortgage-backed securities transactions and is
reasonably acceptable
to each Master Servicer.
"CMSA Special Servicer Loan File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Special Servicer Loan File" 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
adopted by
the CMSA for commercial mortgage-backed securities transactions and
is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
regulations
promulgated thereunder, including proposed regulations to the
extent that, by
reason of their proposed effective date, could, as of the date of
any
determination or opinion as to the tax consequences of any action
or proposed
action or transaction, be applied to the Trust or the Certificates.
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"Collection Account": The segregated account or accounts created
and
maintained by each Master Servicer, pursuant to Section 3.04(a), in
trust for
the Certificateholders, which shall be entitled "[name of subject
Master
Servicer], as a Master Servicer, on behalf of LaSalle Bank National
Association
[or name of any successor Trustee], as Trustee, in trust for the
registered
holders of Bear Stearns Commercial Mortgage Securities II Inc.,
Commercial
Mortgage Pass-Through Certificates, 2005-PWR10, Collection
Account".
"Collection Period": With respect to any Distribution Date, the
period
commencing on the day immediately following the Determination Date
in the
calendar month preceding the month in which such Distribution Date
occurs (or,
in the case of the initial Distribution Date, commencing as of the
Cut-off Date)
and ending on and including the Determination Date in the calendar
month in
which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any
successor
thereto.
"Companion Note Custodial Account": As defined in Section 3.04(e).
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by a Master Servicer or the Certificate
Administrator
from its own funds pursuant to Section 3.19(c) to cover Prepayment
Interest
Shortfalls incurred during the related Collection Period.
"Component Notional Amount": The notional amount on which any REMIC
III Component of either Class of Interest Only Certificates accrues
interest,
which, as of any date of determination, is equal to the then
current
Uncertificated Principal Balance of such REMIC III Component's
Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds": All cash amounts actually Received by the
Trust or on behalf of the Trustee, a Master Servicer or the Special
Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage
Loan or any
related REO Property, any such proceeds remitted to the applicable
Master
Servicer by the applicable Non-Trust Master Servicer or the
applicable Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor
Agreement and/or the applicable Non-Trust Servicing Agreement) in
connection
with the taking of all or a part of a Mortgaged Property or REO
Property by
exercise of the power of eminent domain or condemnation, exclusive
of any
portion thereof applied to the restoration of the related Mortgaged
Property or
REO Property (or placed in a reserve account for that purpose) or
required to be
released to the related Borrower or any other third-party in
accordance with
applicable law and/or the terms and conditions of the related
Mortgage Loan
Documents or any other applicable document.
"Controlling Class": As of any date of determination, the
outstanding
Class of Principal Balance Certificates that (a) is the most
subordinate (based
on the payment priorities set forth in Section 4.01(a)) outstanding
Class of
Principal Balance Certificates and (b) has a Class Principal
Balance which is
not less than 25% of the initial Class Principal Balance of such
Class; provided
that if no Class of Principal Balance Certificates has as of such
date of
determination a Class Principal Balance not less than 25% of its
initial Class
Principal Balance, then the Controlling Class shall be the then
most subordinate
(based on the payment priorities set forth in Section 4.01(a))
outstanding Class
of Principal Balance Certificates that has a Class Principal
Balance greater
than zero; and provided, further, that, for purposes of this
definition, the
Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4 and Class
A-1A
Certificates shall be deemed to constitute a single Class of
Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates
of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a).
The
initial Controlling Class Representative shall be ARCap CMBS Fund
II REIT, Inc.
"Corporate Trust Office: The corporate trust office of the
Certificate
Administrator or the asset-backed securities trust services office
of the
Trustee, as the case may be, at which at any particular time its
duties, with
respect to this Agreement shall be administered, which office is as
of the
Closing Date located: (i) in the case of the Certificate
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Administrator, for Certificate transfer purposes, at Wells Fargo
Center, Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479; Attn:
Corporate Trust
Services-Bear Stearns Commercial Mortgage Securities II Inc.,
2005-PWR10, and
for all other purposes, at 9062 Old Annapolis Road, Columbia,
Maryland 21045,
Attention: Corporate Trust Services, Bear Stearns Commercial
Mortgage Securities
II Inc., 2005-PWR10; and (ii) in the case of the Trustee, at 135
South LaSalle,
Suite 1625, Chicago, Illinois 60603, Attention: Global
Securitization and Trust
Services Group-Bear Stearns Commercial Mortgage Securities II Inc.,
2005-PWR10.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been
a
Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the
related
Mortgaged Property becoming an REO Property).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage Loan
that is a Corrected Mortgage Loan. Notwithstanding anything to the
contrary
contained herein, in no event shall a Non-Trust-Serviced Pooled
Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding Class of Principal Balance Certificates": With
respect
to any REMIC III Component of either Class of Interest Only
Certificates, the
Class of Principal Balance Certificates opposite which such REMIC
III Component
is set forth in the Preliminary Statement in the table entitled
"REMIC
III--Corresponding REMIC II Regular Interests".
"Corresponding REMIC II Regular Interest(s)": (a) With respect to
any
Class of Principal Balance Certificates, the one or more REMIC II
Regular
Interests opposite which such Class of Principal Balance
Certificates is set
forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests"; (b) with respect to
any REMIC
III Component of the Class X-1 Certificates, the REMIC II Regular
Interest
opposite which such REMIC III Component is set forth in the
Preliminary
Statement in the table entitled "REMIC III--Corresponding REMIC II
Regular
Interests"; and (c) with respect to any REMIC III Component of the
Class X-2
Certificates, the REMIC II Regular Interest opposite which such
REMIC III
Component is set forth in the Preliminary Statement in the table
entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is,
by
its terms, cross-defaulted and cross-collateralized with any other
Mortgage
Loan; provided that the Mortgage Loans that are part of any
Serviced Mortgage
Loan Group shall not constitute Cross-Collateralized Mortgage
Loans.
"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, the Pooled Mortgage Loan Sellers
or an
Affiliate of any of them.
"Cut-off Date": With respect to each Mortgage Loan, the Due Date
for
the Monthly Payment due on such Mortgage Loan in December 2005 (or,
in the case
of any Mortgage Loan that has its first Due Date after December
2005, the later
of the date of origination or the date that would have been its Due
Date in
December 2005 under the terms of such Mortgage Loan if a Monthly
Payment were
scheduled to be due in such month).
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan,
the outstanding principal balance of such Mortgage Loan as of its
Cut-off Date,
after application of all payments of principal due on or before
such date,
whether or not received.
"Default Charges": Default Interest and/or late payment charges
that
are paid or payable, as the context may require, in respect of any
Mortgage Loan
or REO Mortgage Loan.
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"Default Interest": With respect to any Mortgage Loan (or successor
REO Mortgage Loan), any amounts collected thereon, other than late
payment
charges, Prepayment Premiums or Yield Maintenance Charges, that
represent
interest (exclusive, if applicable, of Post-ARD Additional
Interest) in excess
of interest accrued on the principal balance of such Mortgage Loan
(or REO
Mortgage Loan) at the related Mortgage Rate, such excess interest
arising out of
a default under such Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to
which
there exists a Material Breach or a Material Document Defect that
has not been
cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan
that
is purchased or repurchased, as the case may be, from the Trust or
replaced with
one or more Replacement Pooled Mortgage Loans, in either case as
contemplated by
Section 2.03.
"Depositor": Bear Stearns Commercial Mortgage Securities II Inc.,
or
its successor in interest.
"Depository": The Depository Trust Company or any successor
Depository
hereafter named as contemplated by Section 5.03(c). 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.
"Designated MERS Mortgage": As defined in clause (iii) of the
definition of "Mortgage File".
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule
III
hereto and any successor to such Sub-Servicer under the related
Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": With respect to any Distribution Date, the
fifth
(5th) Business Day preceding such Distribution Date.
"Directly Operate": With respect to any Administered REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management or
operation of such REO Property, the holding of such REO Property
primarily for
sale or lease, the performance of any construction work thereon or
any use of
such REO Property in a trade or business conducted by the Trust
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 Administered REO Property solely because the Trustee (or
the
applicable 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.
"Discount Rate": As defined in Section 4.01(c).
"Disqualified Non-United States Tax Person": With respect to any
Class
R Certificate, any Non-United States Tax Person or agent thereof
other than: (1)
a Non-United States Tax Person that (a) holds such Class R
Certificate
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and, for purposes of Treasury Regulations Section 1.860G-3(a)(3),
is subject to
tax under Section 882 of the Code, (b) certifies that it
understands that, for
purposes of Treasury Regulations Section 1.860E-1(c)(4)(ii), as a
holder of such
Class R Certificate for United States federal income tax purposes,
it may incur
tax liabilities in excess of any cash flows generated by such Class
R
Certificate and intends to pay taxes associated with holding such
Class R
Certificate, and (c) has furnished the Transferor, the Trustee, the
Certificate
Administrator and the Tax Administrator with an effective IRS Form
W-8ECI or
successor form and has agreed to update such form as required under
the
applicable Treasury regulations; or (2) a Non-United States Tax
Person that has
delivered to the Transferor, the Trustee, the Certificate
Administrator and the
Tax Administrator an opinion of nationally recognized tax counsel
to the effect
that (x) the Transfer of such Class R Certificate to it is in
accordance with
the requirements of the Code and the regulations promulgated
thereunder and (y)
such Transfer of such Class R Certificate will not be disregarded
for United
States federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political
subdivision thereof,
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, except for Freddie Mac, a majority of its board of
directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv)
rural
electric and telephone cooperatives described in Section 1381 of
the Code or (v)
any other Person so designated by the Tax Administrator, based upon
an Opinion
of Counsel delivered to the Tax Administrator (but not at the Tax
Administrator's expense) to the effect that the holding of an
Ownership Interest
in a Class R Certificate by such Person may cause the Trust 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 Class R
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.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
REMIC III Certificates for any Distribution Date, an amount of
interest equal to
the amount of Accrued Certificate Interest in respect of such Class
of REMIC III
Certificates for the related Interest Accrual Period, reduced (to
not less than
zero) by that portion, if any, of the Net Aggregate Prepayment
Interest
Shortfall for such Distribution Date allocated to such Class of
REMIC III
Certificates as provided below; provided, however, that if the
Class Principal
Balance of such Class of REMIC III Certificates is deemed to have
been increased
immediately prior to such Distribution Date pursuant to the proviso
to the
definition of "Class Principal Balance" because the Principal
Distribution
Amount for such Distribution Date includes any collections of
amounts that (x)
had previously been determined to constitute Nonrecoverable
Advances, (y) were
reimbursed to a party to this Agreement from the principal portions
of P&I
Advances and/or payments or other collections of principal on the
Mortgage Pool
in a Collection Period prior to the one related to such
Distribution Date
(pursuant to subsection (II)(iv) of Section 3.05(a)) and (z) were
recovered in
the Collection Period related to such Distribution Date, then the
Distributable
Certificate Interest for such Class of REMIC III Certificates and
such
Distribution Date shall equal the sum of (i) the amount of the
Distributable
Certificate Interest for such Class of REMIC III Certificates and
such
Distribution Date, calculated as otherwise provided above without
regard to this
proviso, and (ii) an amount equal to the interest that would have
accrued (on a
30/360 Basis), at the Pass-Through Rate for such Class of REMIC III
Certificates
and in effect for such Interest Accrual Period, on a principal
amount equal to
the deemed increase in such Class Principal Balance, during such
Interest
Accrual Period and each prior Interest Accrual Period related to a
Distribution
Date that occurred subsequent to the earliest Distribution Date on
which a
Realized Loss was allocated to such Class of REMIC III Certificates
pursuant to
Section 4.04. A portion of the Net Aggregate Prepayment Interest
Shortfall, if
any, for each Distribution Date shall be allocated to each Class of
Principal
Balance Certificates in an amount equal to the product of (i) the
amount of such
Net Aggregate Prepayment Interest Shortfall and (ii) a fraction,
the numerator
of which is the Accrued Certificate Interest for such Class of
Principal Balance
Certificates for such Distribution Date and the denominator of
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which is the aggregate amount of Accrued Certificate Interest for
all Classes of
Principal Balance Certificates for such Distribution Date. No
portion of any Net
Aggregate Prepayment Interest Shortfall for any Distribution Date
shall be
allocated to the Class X-1 or Class X-2 Certificates.
"Distribution Account": The segregated account or accounts created
and
maintained by the Certificate Administrator on behalf of the
Trustee, pursuant
to Section 3.04(b), in trust for the Certificateholders, which
shall be entitled
"Wells Fargo Bank, National Association [or the name of any
successor
Certificate Administrator], as Certificate Administrator, on behalf
of LaSalle
Bank National Association [or the name of any successor Trustee],
as Trustee, in
trust for the registered holders of Bear Stearns Commercial
Mortgage Securities
II Inc., Commercial Mortgage Pass-Through Certificates, 2005-PWR10,
Distribution
Account".
"Distribution Date": The 11th day of any month, or if such 11th day
is
not a Business Day, the Business Day immediately following such
11th day,
commencing in January 2006.
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Monthly Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
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
Mortgage Loan, the day of the month set forth in the related
Mortgage Note on
which each Monthly Payment on the related Mortgage Loan had been
scheduled to be
first due.
"EDGAR": The Electronic Data Gathering, Analysis, and Retrieval
System
of the Commission, which is the computer system for the receipt,
acceptance,
review and dissemination of documents submitted to the Commission
in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, the
long-term deposit
or long-term unsecured debt obligations of which are rated no less
than "AA-" by
Fitch (or "A-" by Fitch so long as the short-term deposit or
short-term
unsecured debt obligations of such depository institution or trust
company are
rated no less than "F-1" by Fitch) and "AA-" by S&P (or "A-" by
S&P so long as
the short-term deposit or short-term unsecured debt obligations of
such
depository institution or trust company are rated no less than
"A-1" by S&P), if
the deposits are to be held in the account for more than thirty
(30) days, or
the short-term deposit or short-term unsecured debt obligations of
which are
rated no less than "F-1" by Fitch and "A-1" by S&P, if the
deposits are to be
held in the account for thirty (30) days or less, in any event at
any time funds
are on deposit therein, (ii) a segregated trust account maintained
with the
trust department of a federal or state chartered depository
institution or trust
company (which, subject to the remainder of this clause (ii), may
include the
Certificate Administrator or the Trustee) acting in its fiduciary
capacity, and
which, in either case, has a combined capital and surplus of at
least
$50,000,000 and is subject to supervision or examination by federal
or state
authority and to regulations regarding fiduciary funds on deposit
similar to
Title 12 of the Code of Federal Regulations Section 9.10(b), (iii)
for so long
as WFB serves as a Master Servicer under this Agreement, an account
maintained
with WFB or Wells Fargo Bank Iowa, N.A., each a wholly-owned
subsidiary of Wells
Fargo & Co., provided that subsidiary's or its parent's (A)
commercial paper,
short-term unsecured debt obligations or other short-term deposits
are rated at
least "F-1" by Fitch and "A-1" by S&P, if the deposits are to
be held in the
account for 30 days or less, or (B) long-term unsecured debt
obligations are
rated at least "AA-" by Fitch and "AA-" by S&P (or "A-" by
Fitch and "A-" by S&P
so long as the short-term deposit or short-term unsecured debt
obligations of
such subsidiary or its parent are rated no less than "F-1" by Fitch
and "A-1" by
S&P), if the deposits are to be held in the account for more
than 30 days, or
(iv) an account maintained with any one of the following: (x) in
the case of an
account that does not and may not potentially contain any funds
related to any
Serviced Non-Pooled Mortgage Loan, another insured depository
institution that
is acceptable to each Rating Agency for the Rated Certificates (as
evidenced by
a written confirmation to the Trustee from each Rating Agency that
the use of
such account would not, in and of itself, result in an Adverse
Rating Event with
respect to any Class of Rated Certificates), (y) in the case of an
account that
does or may potentially contain any funds related to any Serviced
Non-Pooled
Mortgage Loan and also does
-26-
or may potentially contain any funds related to one or more Pooled
Mortgage
Loans, another insured depository institution that is acceptable to
each Rating
Agency for the Rated Certificates and each applicable Rating Agency
for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a
written confirmation to the Trustee from each Rating Agency that
the use of such
account would not, in and of itself, result in an Adverse Rating
Event with
respect to any Class of Rated Certificates rated by such Rating
Agency and also
from each applicable Rating Agency that the use of such account
would not, in
and of itself, result in an Adverse Rating Event with respect to
any class of
such Non-Pooled Pari Passu Companion Loan Securities rated by such
applicable
Rating Agency), as applicable, and (z) in the case of an account
that does or
may potentially contain any funds related to any Serviced
Non-Pooled Mortgage
Loan and does not and may not potentially contain any funds related
to one or
more Pooled Mortgage Loans, another insured depository institution
that is
acceptable to each applicable Rating Agency for the applicable
Non-Pooled Pari
Passu Companion Loan Securities (as evidenced by a written
confirmation to the
Trustee from each such applicable Rating Agency that the use of
such account
would not, in and of itself, result in an Adverse Rating Event with
respect to
any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such
applicable Rating Agency), as applicable.
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is
required to
make or to request a Master Servicer to make, that must be made
within five
Business Days of the Special Servicer becoming aware that it must
be made in
order to avoid any material penalty, any material harm to a
Mortgaged Property
securing a Serviced Mortgage Loan or any other material adverse
consequence to
the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property securing a Serviced Mortgage Loan or any Administered REO
Property, any
insurance policy covering pollution conditions and/or other
environmental
conditions that is maintained from time to time in respect of such
Mortgaged
Property or REO Property, as the case may be, for the benefit of,
among others,
the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or the
Special Servicer for the account of the Borrower under any Serviced
Mortgage
Loan for application toward the payment of real estate taxes,
assessments,
insurance premiums (including with respect to any Environmental
Insurance
Policy), ground rents (if applicable) and similar items in respect
of the
related Mortgaged Property.
"Euroclear": The Euroclear System or any successor thereto.
"Event of Default": As defined in Section 7.01(a).
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Pooled
Mortgage Loan or an Administered REO Property (or the proceeds of
the final
payment (including any full, partial or discounted payoff) on a
defaulted Pooled
Mortgage Loan or a Pooled Mortgage Loan that is a Corrected
Mortgage Loan that
were Received by the Trust, net of any and all fees, expenses and
costs payable
therefrom), over (b) the sum of (i) the amount needed to pay all
principal,
interest (including Additional Interest (if applicable) and Default
Interest),
Prepayment Premiums or Yield Maintenance Charges (as applicable)
and late
payment charges payable with respect to such Pooled Mortgage Loan
or the related
REO Pooled Mortgage Loan, as the case may be (together with,
without
duplication, any outstanding Unliquidated Advances in respect of
any such
principal or interest), in full, (ii) any other fees that would
constitute
Additional Master Servicing Compensation and/or Additional Special
Servicing
Compensation, (iii) any related unreimbursed Servicing Advances
(together with,
without duplication, outstanding Unliquidated Advances in respect
of prior
Servicing Advances), (iv) all unpaid Advance Interest on any
related Advances
(but (for the avoidance of doubt) excluding any Unliquidated
Advances), (v) any
related Liquidation Fee and/or Special Servicing Fees paid or
payable in respect
of such Specially Serviced Mortgage Loan or the related REO Pooled
Mortgage
Loan, (vi) any other Additional Trust Fund Expenses paid or payable
in respect
of such Pooled Mortgage Loan or REO Property, and (vii) in the case
of any REO
Property relating to a Serviced Mortgage Loan Group,
-27-
any portion of such Net Liquidation Proceeds payable to any one or
more of the
related Serviced Non-Pooled Mortgage Loan Noteholder(s).
"Excess Liquidation Proceeds Account": The segregated account
created
and maintained by the Certificate Administrator in the name of the
Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders,
which shall be
entitled "LaSalle Bank National Association [or name of any
successor Trustee],
as Trustee, in trust for the registered holders of Bear Stearns
Commercial
Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates,
2005-PWR10, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced Mortgage
Loan
(and any successor REO Mortgage Loan with respect thereto), that
portion of the
Master Servicing Fees that accrue at a per annum rate equal to the
Excess
Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), a
rate per
annum equal to (i) in the case of a Pooled Mortgage Loan, the
annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan
Schedule and (ii)
in the case of each Non-Pooled Mortgage Loan, zero (0) basis
points; provided
that such rate shall be subject to reduction at any time following
any
resignation of a Master Servicer pursuant to Section 6.04 (if no
successor is
appointed in accordance with Section 6.04(b)) or any termination of
a Master
Servicer pursuant to Section 7.01, to the extent reasonably
necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a
qualified successor
Master Servicer (which successor may include the Trustee) that
meets the
requirements of Section 7.02.
"Excess Servicing Fee Right": With respect to each Mortgage Loan
(and
any successor REO Mortgage Loan with respect thereto), the right to
receive
Excess Servicing Fees. In the absence of any transfer of the Excess
Servicing
Fee Right, the related Master Servicer shall be the owner of such
Excess
Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bear, Stearns & Co. Inc.,
(ii)
Morgan Stanley & Co. Incorporated, (iii) any Person directly or
indirectly,
through one or more intermediaries, controlling, controlled by or
under common
control with Bear, Stearns & Co. Inc. or Morgan Stanley &
Co. Incorporated and
(iv) any member of any underwriting syndicate or selling group of
which any
Person described in clauses (i), (ii) and (iii) is a manager or
co-manager with
respect to a Class of Certificates that is investment grade rated
by at least
one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted
Pooled Mortgage Loan, the amount that, in the Special Servicer's
reasonable
judgment, taking into account the factors set forth in the first
sentence of the
second paragraph of Section 3.18(b) and such other factors as the
Special
Servicer reasonably deems appropriate, is the fair value of such
Mortgage Loan.
"Fannie Mae": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in
connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan,
Corrected
Mortgage Loan or Administered REO Property, or by the applicable
Master Servicer
with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO
Property, that there has been a recovery of all Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special
Servicer or such Master Servicer has determined, in accordance with
the
Servicing Standard, will be ultimately Received by the Trust;
provided that the
term Final Recovery Determination shall not apply to: (i) a
Mortgage Loan that
-28-
was paid in full (including by means of a payoff on behalf of the
Borrower, or
the purchase of such Mortgage Loan, by a mezzanine lender or
another creditor of
the related Borrower in connection with a Mortgage Loan default, as
set forth in
the related intercreditor agreement) or (ii) a Mortgage Loan or REO
Property, as
the case may be, that was purchased by (a) any Pooled Mortgage Loan
Seller
pursuant to the related Pooled Mortgage Loan Purchase Agreement,
(b) a Purchase
Option Holder or its assignee pursuant to Section 3.18, (c) any
Controlling
Class Certificateholder(s), a Master Servicer or the Special
Servicer pursuant
to Section 9.01, (d) any related Non-Pooled Subordinate Noteholder
pursuant to a
Mortgage Loan Group Intercreditor Agreement (if such Mortgage Loan
is included
in a Serviced Mortgage Loan Group), or (e) any other party with a
purchase
option in respect of a Non-Trust-Serviced Pooled Mortgage Loan
pursuant to the
related Mortgage Loan Group Intercreditor Agreement and/or the
related Non-Trust
Servicing Agreement; and provided, further, that, for purposes of
making any
such determination with respect to a Non-Trust-Serviced Pooled
Mortgage Loan or
any related REO Property, the applicable Master Servicer shall be
entitled to
rely on, and shall be required to follow, any comparable
determination made by
the related Non-Trust Master Servicer or the related Non-Trust
Special Servicer.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation,
or any successor appointed as provided herein.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall
be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the other parties hereto, and specific ratings of
Fitch, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated. References herein to "applicable rating category"
(other than such
references to "highest applicable rating category") shall, in the
case of Fitch,
be deemed to refer to such applicable rating category of Fitch,
without regard
to any plus or minus or other comparable rating qualification.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GAAP": Generally accepted accounting principles in the United
States.
"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part
1
of Subchapter J of the Code.
"Grantor Trust Pool": Any of Grantor Trust V or Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of
the
Code, including Treasury Regulations Section 301.7701-4(c)(2).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.18(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.18(a).
"Ground Lease": The ground lease pursuant to which any Borrower
holds
a leasehold interest in the related Mortgaged Property, together
with any
estoppels or other agreements executed and delivered by the ground
lessor in
favor of the lender under the related Mortgage Loan(s).
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than
one
Mortgaged Property or REO Property.
-29-
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including those so identified
pursuant to
CERCLA or any other federal, state or local environmental related
laws and
regulations now existing or hereafter enacted, and specifically
including
asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and
any
substances classified as being "in inventory", "usable work in
process" or
similar classification which would, if classified as unusable, be
included in
the foregoing definition.
"Holder": As defined in the definition of "Certificateholder".
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each
Pooled
Mortgage Loan Seller, each Master Servicer, each Primary Servicer,
the Special
Servicer, the Certificate Administrator, the Tax Administrator, the
Trustee, the
Fiscal Agent, each Non-Trust Master Servicer (insofar as the
relevant matter
involves a Non-Trust-Serviced Pooled Mortgage Loan (whether alone
or together
with one or more other Pooled Mortgage Loans)), each Non-Trust
Special Servicer
(insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage
Loan (whether alone or together with one or more other Pooled
Mortgage Loans)),
the Controlling Class Representative and any and all Affiliates
thereof, (ii)
does not have any direct financial interest in or any material
indirect
financial interest in any of the Depositor, any Pooled Mortgage
Loan Seller,
either Master Servicer, either Primary Servicer, the Special
Servicer, the
Certificate Administrator, the Tax Administrator, the Trustee, the
Fiscal Agent,
the related Non-Trust Master Servicer (insofar as the relevant
matter involves a
Non-Trust-Serviced Pooled Mortgage Loan), the related Non-Trust
Special Servicer
(insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage
Loan), the Controlling Class Representative or any Affiliate
thereof, and (iii)
is not connected with the Depositor, any Pooled Mortgage Loan
Seller, either
Master Servicer, either Primary Servicer, the Special Servicer, the
Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal
Agent, the related
Non-Trust Master Servicer (insofar as the relevant matter involves
a
Non-Trust-Serviced Pooled Mortgage Loan), the related Non-Trust
Special Servicer
(insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage
Loan), the Controlling Class Representative 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 Depositor, any Pooled Mortgage Loan Seller,
either Master
Servicer, either Primary Servicer, the Special Servicer, the
Trustee, the Fiscal
Agent, the applicable Non-Trust Master Servicer, the applicable
Non-Trust
Special Servicer, the Controlling Class Representative or any
Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of
any class of
securities issued by the Depositor, such Pooled Mortgage Loan
Seller, such
Master Servicer, such Primary Servicer, the Special Servicer, the
Trustee, such
Fiscal Agent, such Non-Trust Master Servicer, such Non-Trust
Special Servicer,
the Controlling Class Representative or any such Affiliate thereof,
as the case
may be, provided that such ownership constitutes less than 1% of
the total
assets owned by such Person.
"Independent Contractor": (a) Any Person that would be an
"independent
contractor" with respect to any REMIC Pool within the meaning of
Section
856(d)(3) of the Code if such REMIC Pool 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
either Master
Servicer, the Special Servicer, the Trustee or the Trust, delivered
to the
Trustee), provided that (i) the Trust does not receive or derive
any income from
such Person and (ii) 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); or (b) any other Person upon receipt by the Trustee
of an Opinion
of Counsel, which shall be at no expense to the Trustee or the
Trust, to the
effect that the taking of any action in respect of any Administered
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
Administered 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 Administered REO Property to fail to qualify as
Rents from Real
Property.
"Initial Pool Balance": The aggregate Cut-off Date Principal
Balance
of all the Original Pooled Mortgage Loans.
-30-
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property,
any hazard insurance policy, terrorism insurance policy, flood
insurance policy,
title insurance policy, earthquake insurance policy, Environmental
Insurance
Policy, business interruption insurance policy or other insurance
policy that is
maintained from time to time in respect of such Mortgage Loan (or
the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy and
received by or on behalf of the Trustee, a Master Servicer, the
Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage
Loan or any
related REO Property, any such proceeds remitted to the applicable
Master
Servicer by the related Non-Trust Master Servicer or the related
Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement), to the
extent such
proceeds are not applied to the restoration of the related
Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or
released to
the related Borrower or any other third-party pursuant to the terms
of the
related Mortgage or lease, in accordance with the Servicing
Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any
REMIC II Regular
Interest, any REMIC III Certificate or any particular REMIC III
Component of a
Class of Interest Only Certificates, in each case consisting of one
of the
following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any REMIC III Certificate
or any
particular REMIC III Component of a Class of Interest Only
Certificates, for any
Distribution Date, the calendar month immediately preceding the
month in which
such Distribution Date occurs.
"Interest Only Certificates": Collectively, the Class X-1 and Class
X-2 Certificates.
"Interest Reserve Account": The segregated account (or sub-account
of
the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section
3.04(c), in trust
for the Certificateholders, which shall be entitled "Wells Fargo
Bank, National
Association [or the name of any successor Certificate
Administrator], as
Certificate Administrator, on behalf of LaSalle Bank National
Association [or
the name of any successor Trustee], as Trustee, in trust for the
registered
holders of Bear Stearns Commercial Mortgage Securities II Inc.,
Commercial
Mortgage Pass-Through Certificates, 2005-PWR10, Interest Reserve
Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage
Loan
that is an Interest Reserve Loan (or the related successor REO
Pooled Mortgage
Loan), for any Distribution Date that occurs during February of
2006 or February
of any year thereafter or during January of 2006 or January of any
year
thereafter that is not a leap year, an amount equal to one day's
interest
accrued at the related Net Mortgage Rate on the related Stated
Principal Balance
as of the end of the Collection Period related to such Distribution
Date (or, in
the case of any Pooled Mortgage Loan for which the Due Date occurs
on a day
other than the first day of each month, as of the Due Date in the
month in which
such Distribution Date occurs), but prior to giving effect to the
application of
any amounts due on the Due Date occurring in such Collection Period
(or, in the
case of any Pooled Mortgage Loan for which the Due Date occurs on a
day other
than the first day of each month, due on the Due Date in the month
in which such
Distribution Date occurs), to the extent that a Monthly Payment is
Received by
the Trust with respect to such Interest Reserve Loan for the
related Due Date in
the same month as such Distribution Date on or before the related
Master
Servicer Remittance Date or a P&I Advance is made under this
Agreement with
respect to such Interest Reserve Loan by such Distribution Date.
For purposes of
-31-
calculating Interest Reserve Amounts, the Net Mortgage Rate for
each Interest
Reserve Loan shall be the Net Mortgage Rate in effect (including as
a result of
any step-up provision) under the original terms of such Interest
Reserve Loan in
effect as of the Closing Date, without regard to any modifications,
extensions,
waivers or amendments of such Interest Reserve Loan subsequent to
the Closing
Date (whether entered into by the applicable Master Servicer, the
Special
Servicer, the applicable Non-Trust Master Servicer or the
applicable Non-Trust
Special Servicer or in connection with any bankruptcy, insolvency
or other
similar proceeding involving the related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an
Actual/360 Mortgage Loan (or any successor REO Pooled Mortgage Loan
with respect
thereto).
"Investment Account": Each of the Collection Accounts, the
Companion
Note Custodial Accounts, the Subordinate Note Custodial Accounts,
the Servicing
Accounts, the Reserve Accounts, the REO Accounts, the Distribution
Account, the
Interest Reserve Account and the Excess Liquidation Proceeds
Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor thereto.
"Issue Price": With respect to each Class of Certificates, the
"issue
price" as defined in the Code and Treasury regulations promulgated
thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan,
all
amounts Received by the Trust thereon during any Collection Period,
whether as
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or
otherwise, which (as applied under Section 1.03) represent
collections of the
principal and/or interest portions of a Monthly Payment (other than
a Balloon
Payment) or an Assumed Monthly Payment in respect of such Pooled
Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period
(or, in the case
of any Pooled Mortgage Loan for which the Due Date occurs on a day
other than
the first day of each month, due or deemed due on the Due Date in
the calendar
month preceding the month in which such Collection Period ends) or
on a Due Date
during or prior to the month of the Cut-off Date for such Pooled
Mortgage Loan,
and not previously Received by the Trust; and (b) with respect to
any REO Pooled
Mortgage Loan, all amounts Received by the Trust in connection with
the related
REO Property during any Collection Period, whether as Insurance
Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which
(as applied under Section 1.03) represent collections of the
principal and/or
interest portions of a Monthly Payment (other than a Balloon
Payment) or an
Assumed Monthly Payment in respect of the predecessor Pooled
Mortgage Loan or
the principal and/or interest portions of an Assumed Monthly
Payment in respect
of such REO Pooled Mortgage Loan due or deemed due on a Due Date in
a previous
Collection Period (or, in the case of any Pooled Mortgage Loan for
which the Due
Date occurs on a day other than the first day of each month, due or
deemed due
on the Due Date in the calendar month preceding the month in which
such
Collection Period ends) and not previously Received by the Trust.
Late
Collections do not include Default Charges.
"Latest Possible Maturity Date": With respect to any REMIC I
Regular
Interest, any REMIC II Regular Interest or any REMIC III
Certificate, the
"latest possible maturity date" thereof, calculated solely for
purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any
third-party
letter of credit delivered by or at the direction of the related
Borrower
pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or
deposit otherwise required to be made into, a Reserve Fund or
otherwise pledged
or assigned by the related Borrower as Additional Collateral.
-32-
"Liquidation Event": (a) 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 is repurchased or replaced by a Pooled Mortgage Loan Seller
pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by
Section
2.03, (iv) such Mortgage Loan is purchased by the Special Servicer,
the Majority
Controlling Class Certificateholder(s) or any assignee of either of
them
pursuant to Section 3.18, (v) such Mortgage Loan is purchased by
any Controlling
Class Certificateholder(s), a Master Servicer or the Special
Servicer pursuant
to Section 9.01, (vi) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates
pursuant to Section
9.01, (vii) in the case of any Pooled Mortgage Loan that is
included in a
Mortgage Loan Group that includes one or more Non-Pooled Mortgage
Loans, such
Mortgage Loan is acquired by a related Non-Pooled Noteholder
pursuant to the
related Mortgage Loan Group Intercreditor Agreement, (viii) such
Mortgage Loan
is paid off or purchased by the holder of a related mezzanine loan
or another
creditor of the Borrower in connection with a Mortgage Loan
default, if so
permitted and set forth in the related intercreditor agreement, or
(ix) in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage
Loan is
purchased by a holder of a purchase option with respect thereto
pursuant to the
related Non-Trust Servicing Agreement and/or the related Mortgage
Loan Group
Intercreditor Agreement; and (b) with respect to any REO Property
(and the
related REO Mortgage Loan), any of the following events: (i) a
Final Recovery
Determination is made with respect to such REO Property, (ii) such
REO Property
is repurchased or replaced by a Pooled Mortgage Loan Seller
pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by
Section
2.03, (iii) such REO Property is purchased by a Master Servicer,
the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01,
or (iv) such REO Property is acquired by the Sole
Certificateholder(s) in
exchange for all of the Certificates pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise
covered by
Servicing Advances) in connection with the liquidation of any
Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or Section
3.18
(including legal fees and expenses, committee or referee fees and,
if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to
the
Special Servicer in connection with certain events in respect of a
Specially
Serviced Mortgage Loan or an REO Property pursuant to, Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is
payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust 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 Borrower in
accordance
with applicable law and/or the terms and conditions of the related
Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment
obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted
Pooled
Mortgage Loan by the Special Servicer, the Majority Controlling
Class
Certificateholder(s) or any assignee of either of them pursuant to
Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan or REO
Property by
a Pooled Mortgage Loan Seller pursuant to the related Pooled
Mortgage Loan
Purchase Agreement as contemplated by Section 2.03 of this
Agreement; (v) the
purchase of a Pooled Mortgage Loan or REO Property by a Master
Servicer, the
Special Servicer and/or any Controlling Class Certificateholder(s)
pursuant to
Section 9.01; (vi) the acquisition of any Pooled Mortgage Loan or
REO Property
by the Sole Certificateholder(s) in exchange for all the
Certificates pursuant
to Section 9.01; (vii) the purchase of a Pooled Mortgage Loan
included in a
Mortgage Loan Group that includes one or more Non-Pooled
Subordinate Loans by a
related Non-Pooled Subordinate Noteholder pursuant to the related
Mortgage Loan
Group Intercreditor Agreement, (viii) the purchase of a
Non-Trust-Serviced
Pooled Mortgage Loan by any holder of a purchase option with
respect thereto
pursuant to the related Non-Trust Servicing Agreement and/or the
related
Mortgage Loan Group Intercreditor Agreement; or (ix) the payoff or
purchase of a
Pooled Mortgage Loan or REO Property by the holder of a related
mezzanine loan
or another creditor of the Borrower in connection with a Mortgage
Loan default,
if so permitted and set forth in the related intercreditor
agreement.
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"Loan Group" shall mean either of Loan Group 1 or Loan Group 2.
"Loan Group 1" shall mean, collectively, all of the Pooled Mortgage
Loans for which the designation "Group 1" appears opposite such
respective
Pooled Mortgage Loans on the Pooled Mortgage Loan Schedule and any
successor REO
Pooled Mortgage Loans with respect thereto.
"Loan Group 2" shall mean, collectively, all of the Pooled Mortgage
Loans for which the designation "Group 2" appears opposite such
respective
Pooled Mortgage Loans on the Pooled Mortgage Loan Schedule and any
successor REO
Pooled Mortgage Loans with respect thereto.
"Majority Controlling Class Certificateholder(s)": As of any date
of
determination, any single Holder or group of Holders of
Certificates
representing a majority of the Voting Rights allocated to the Class
of Principal
Balance Certificates that constitutes, or the Classes of Principal
Balance
Certificates that constitute, the Controlling Class as of such date
of
determination.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage
Loan is a PMCF
Pooled Mortgage Loan, PAR, or any successor thereto appointed as
provided
herein, or (b) if such Mortgage Loan is a BSCMI Pooled Mortgage
Loan, a PCF
Pooled Mortgage Loan, a WFB Pooled Mortgage Loan or a Nationwide
Pooled Mortgage
Loan, WFB, or any successor thereto appointed as provided herein.
Any reference
herein to a "Master Servicer" hereunder (including Articles VI and
VII hereof)
shall, if such Master Servicer is the one described by clause (a)
of this
definition, also be construed to refer to the Servicer Report
Administrator to
the extent of the rights granted to and obligations imposed on the
Servicer
Report Administrator under this Agreement.
"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal
to (a) all
amounts on deposit in such Master Servicer's Collection Account as
of 11:00
a.m., New York City time, on such Master Servicer Remittance Date,
net of (b)
any portion of the amounts described in clause (a) of this
definition that
represents one or more of the following: (i) collected Monthly
Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date
following the end
of the related Collection Period (other than, in the case of any
Pooled Mortgage
Loan for which the Due Date is on the 2nd, 3rd or 5th day of each
month and such
day in the current month happens to be later than the end of such
related
Collection Period, in which case such collected Monthly Payment
shall not be
withheld until the following month as otherwise contemplated by
this clause
(i)), (ii) to the extent not covered by clause (i) above, any
payments of
principal (including Principal Prepayments) and interest (including
Post-ARD
Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation
Proceeds Received by the Trust with respect to any Pooled Mortgage
Loan or REO
Property after the end of the related Collection Period, (iii) any
Prepayment
Premiums and/or Yield Maintenance Charges Received by the Trust
with respect to
any Pooled Mortgage Loan or successor REO Pooled Mortgage Loan with
respect
thereto after the end of the related Collection Period, (iv) any
Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to
any Person from
such Collection Account pursuant to clauses (ii) through (xxi) of
Section
3.05(a), and (vi) any amounts deposited in such Collection Account
in error;
provided that the Master Servicer Remittance Amount with respect to
each Master
Servicer for the Master Servicer Remittance Date that occurs in the
same
calendar month as the anticipated Final Distribution Date shall be
calculated
without regard to clauses (b)(i), (b)(ii), (b)(iii) and (b)(iv) of
this
definition and provided, further, however, that the foregoing
provisions of this
definition shall be construed in a manner that is consistent with
Section
3.02(d).
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the fee
designated as such
and payable to the applicable Master Servicer pursuant to Section
3.11(a). The
Master Servicing Fee for each Serviced Mortgage Loan includes the
monthly fees
payable to any applicable primary servicer or subservicer engaged
by the
applicable Master Servicer and such Master Servicer shall pay such
fees to such
primary servicer or subservicer in accordance with the terms of the
applicable
Primary Servicing Agreement or Subservicing Agreement.
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"Master Servicing Fee Rate": With respect to (i) each Pooled
Mortgage
Loan (other than the Non-Trust-Serviced Mortgage Loan) and any
successor REO
Pooled Mortgage Loan with respect thereto, a rate per annum equal
to (a) the
rate per annum specified as the "Administrative Fee Rate" on the
Pooled Mortgage
Loan Schedule, minus (b) the sum of (x) the Servicer Report
Administrator Fee
Rate and (y) the Trustee Fee Rate; (ii) the Non-Trust Serviced
Pooled Mortgage
Loan, a rate per annum equal to zero basis points (0.0000%); (iii)
each of the
Muirwood Apartments Non-Pooled Subordinate Loans, a rate per annum
equal to 3.99
basis points (0.0399%) and (iv) the Chapanoke Square Non-Pooled
Subordinate
Loan, a rate per annum equal to zero basis points (0.0000%). The
parties
acknowledge that the Master Servicing Fee Rate for each Serviced
Mortgage Loan
includes the rate at which applicable primary and sub-servicing
fees accrue;
therefore, if the Master Servicing Fee Rate is zero, there is no
primary or
subservicing fee that may be paid on such mortgage loan.
"Material Breach": With respect to any Pooled Mortgage Loan, any
Breach that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected
Pooled Mortgage
Loan, including but not limited to a material and adverse effect on
any of the
distributions payable with respect to any of the Certificates or on
the value of
such Certificates.
"Material Document Defect": With respect to any Pooled Mortgage
Loan,
any Document Defect that materially and adversely affects the
interests of the
Certificateholders, or any of them, with respect to the affected
Pooled Mortgage
Loan, including but not limited to a material and adverse effect on
any of the
distributions payable with respect to any of the Certificates or on
the value of
such Certificates. Notwithstanding the foregoing, the absence of a
Specially
Designated Mortgage Loan Document following the date on which such
Specially
Designated Mortgage Loan Document is required to be delivered to
the Trustee as
described in Section 2.01(d) shall also constitute a Material
Document Defect.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified
by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing
Monthly Payments current with respect to such Pooled Mortgage
Loan);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results in a release of the lien of the Mortgage on any
material
portion of the related Mortgaged Property without a corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less than
the fair
market value (as is) of the property to be released, as determined
by an
Appraisal delivered to the Special Servicer (at the expense of the
related
Borrower and upon which the Special Servicer may conclusively
rely); or
(c) in the reasonable judgment of the Special Servicer, otherwise
materially impairs the security for such Pooled Mortgage Loan or
materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case
of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum
monthly debt
service payment required to be paid on a current basis) on such
Mortgage Loan
that is actually payable by the related Borrower from time to time
under the
terms of the related Mortgage Note (as such terms may be changed or
modified in
connection with a bankruptcy or similar proceeding involving the
related
Borrower or by reason of a modification, extension, waiver or
amendment granted
or agreed to by the applicable Master Servicer or the Special
Servicer pursuant
to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan,
by the related Non-Trust Master Servicer or the related Non-Trust
Special
Servicer pursuant to the relevant Non-Trust Servicing Agreement)),
including any
Balloon Payment payable in respect of such Mortgage Loan on such
Due Date;
provided that
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the Monthly Payment due in respect of any Mortgage Loan shall not
include
Default Interest; and provided, further, that the Monthly Payment
due in respect
of any ARD Mortgage Loan after its Anticipated Repayment Date shall
not include
Additional Interest.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of
trust, deed to
secure debt or similar document that secures the related Mortgage
Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order
of
LaSalle Bank National Association, as Trustee for the registered
holders of
Bear Stearns Commercial Mortgage Securities II Inc., Commercial
Mortgage
Pass-Through Certificates, 2005-PWR10, without recourse,
representation or
warranty" or in blank, and further showing a complete, unbroken
chain of
endorsement from the originator; or alternatively, if the original
executed
Mortgage Note has been lost, a lost note affidavit and indemnity
with a
copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof
prior to
the assignment to the Trustee, in each case (unless the particular
item has
been delivered to but not returned from the applicable recording
office)
with evidence of recording indicated thereon; provided that if the
original
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, a
copy) of
the Mortgage cannot be delivered with evidence of recording thereon
on or
prior to the 90th day following the Closing Date because of a delay
caused
by the public recording office where such original Mortgage has
been
delivered for recordation, or because the public recording office
retains
the original or because such original Mortgage has been lost, there
shall
be delivered to the Trustee or a Custodian on its behalf a true and
correct
copy of such Mortgage, together with (A) in the case of a delay
caused by
the public recording office, an Officer's Certificate of the
applicable
Pooled Mortgage Loan Seller or a statement from the title agent to
the
effect that such original Mortgage has been sent to the appropriate
public
recording official for recordation or (B) in the case of an
original
Mortgage that has been lost after recordation or retained by the
appropriate public recording office, a certification by the
appropriate
county recording office where such Mortgage is recorded that such
copy is a
true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof
showing a complete chain of assignment from the originator of the
Mortgage
Loan to the most recent assignee of record thereof prior to the
Trustee
(which, in the case of each related Mortgage that has been recorded
in the
name of MERS or its designee (each such Mortgage a "Designated MERS
Mortgage"), may be MERS), if any, in each case (unless the
particular item
has not been returned from the applicable recording office) with
evidence
of recording thereon;
(iv) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, an original executed assignment, in recordable form (except
for
recording information not yet available if the instrument being
assigned
has not been returned from the applicable recording office), of (A)
the
Mortgage and (B) any related Assignment of Leases (if such item is
a
document separate from the Mortgage), in favor of "LaSalle Bank
National
Association, in its capacity as Trustee for the registered holders
of Bear
Stearns Commercial Mortgage Securities II Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-PWR10" or, in the case of
any Pooled
Mortgage Loan included in a Serviced Mortgage Loan Group, in favor
of
"LaSalle Bank National Association, in its capacity as Trustee for
the
registered holders of Bear Stearns Commercial Mortgage Securities
II Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-PWR10,
and in
its capacity as lead lender on behalf of ['the Non-Pooled Mortgage
Loan
Noteholder(s) secured by the [insert name of mortgaged property
(e.g.,
'Muirwood Apartments Mortgaged Property']'] (or, in each case, a
copy
thereof, certified to be the copy of such assignment submitted for
recording); provided, however, that, if the related Mortgage is a
Designated MERS
-36-
Mortgage, no assignment of Mortgage or any related Assignment of
Leases in
favor of the Trustee will be required to be prepared or delivered
and
instead, the related Pooled Mortgage Loan Seller shall take all
actions as
are necessary to cause the Trustee to be shown as, and the Trustee
shall
take all actions necessary to confirm (and shall place into the
Mortgage
File such confirmation in writing from MERS) that it is shown as,
the sole
owner of the related Mortgage and any related Assignment of Leases
on the
records of MERS for purposes of the system of recording transfers
of
beneficial ownership of mortgages maintained by MERS; provided,
further, in
the event that MERS is unable to foreclose on any Mortgaged
Property or to
take any action as authorized in the related Mortgage, the Master
Servicer
or the Special Servicer, as applicable, shall use its commercially
reasonable efforts to take action as it may deem in reasonable
judgment
exercised in accordance with the Servicing Standard to cause such
assignments as are necessary to effectuate a transfer of the
relevant
documents from MERS to the Trustee on behalf of the Trust (provided
that
the Master Servicer or the Special Servicer, as the case may be,
shall take
no such action if such action shall (x) cause either the Master
Servicer or
the Special Servicer, as the case may be, to violate the Servicing
Standard, (y) expose the Master Servicer or the Special Servicer,
as the
case may be, or their officers, directors, employees or agents to
any
claim, suit or liability outside the scope of ordinary creditor's
rights
litigation (for which the Master Servicer and Special Servicer are
indemnified hereunder), or (z) expand materially the scope of the
Master
Servicer's or the Special Servicer's responsibilities under this
Agreement), and the Trustee shall take all actions as are necessary
to
confirm that the Trustee on behalf of the Trust is the owner of the
related
Mortgage;
(v) an original or a copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if
applicable, the
originals or copies of any intervening assignments thereof showing
a
complete chain of assignment from the originator of the Mortgage
Loan to
the most recent assignee of record thereof prior to the Trustee
(which, in
the case of a Designated MERS Mortgage, may be MERS), if any;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, an original assignment of any related Security Agreement (if
such
item is a document separate from the Mortgage) executed by the most
recent
assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of "LaSalle Bank National Association, in its
capacity
as Trustee for the registered holders of Bear Stearns Commercial
Mortgage
Securities II Inc., Commercial Mortgage Pass-Through Certificates,
Series
2005-PWR10" (or, in the case of any Pooled Mortgage Loan included
in a
Serviced Mortgage Loan Group, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders
of Bear
Stearns Commercial Mortgage Securities II Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-PWR10, and in its capacity
as lead
lender on behalf of ['the Non-Pooled Mortgage Loan Noteholder(s)
secured by
the [insert name of mortgaged property (e.g., 'Muirwood Apartments
Mortgaged Property']'], which assignment may (in any case) be
included as
part of the corresponding assignment of Mortgage referred to in
clause (iv)
above; provided, however, that, if the related Mortgage is a
Designated
MERS Mortgage, no assignment of a related Security Agreement in
favor of
the Trustee will be required to be prepared or delivered and
instead, the
related Pooled Mortgage Loan Seller shall take all actions as are
necessary
to cause the Trustee to be shown as, and the Trustee shall take all
actions
necessary to confirm (and shall place into the Mortgage File such
confirmation in writing from MERS) that it is shown as, the sole
owner of
the related Mortgage on the records of MERS for purposes of the
system of
recording transfers of beneficial ownership of mortgages maintained
by
MERS;
(vii) originals or copies of any assumption, modification,
written assurance, consolidation, extension and substitution
agreements, if
any, with evidence of recording thereon if the applicable document
or
instrument being modified or assumed, was recorded (unless the
particular
item has not been returned from the applicable recording office),
in those
instances where the terms or provisions of the Mortgage, Mortgage
Note or
any related security document have been materially modified or the
Mortgage
Loan has been assumed;
(viii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or,
if the policy has not yet been issued, an original or copy of a
written
commitment "marked-up" at the closing of such Mortgage Loan,
interim binder
or the pro forma title insurance policy, in each case evidencing a
binding
commitment to issue such policy);
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(ix) (A) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to
the extent the related Pooled Mortgage Loan Seller had possession
of such
UCC Financing Statements prior to the Closing Date) and (B) except
in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, an original
assignment
thereof, in form suitable for filing, in favor of "LaSalle Bank
National
Association, in its capacity as Trustee for the registered holders
of Bear
Stearns Commercial Mortgage Securities II Inc., Commercial Mortgage
Pass-Through Certificates, 2005-PWR10" or, in the case of any
Pooled
Mortgage Loan included in a Serviced Mortgage Loan Group, in favor
of
"LaSalle Bank National Association, in its capacity as Trustee for
the
registered holders of Bear Stearns Commercial Mortgage Securities
II Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-PWR10,
and in
its capacity as lead lender on behalf of ['the Non-Pooled Mortgage
Loan
Noteholder(s) secured by the [insert name of mortgaged property
(e.g.,
'Muirwood Apartments Mortgaged Property']']; provided, however,
that if the
related Mortgage is a Designated MERS Mortgage, no UCC Financing
Statement
in favor of the Trustee will be required to be prepared or
delivered and
instead, the related Pooled Mortgage Loan Seller shall take all
actions as
are necessary to cause the Trustee to be shown as, and the Trustee
shall
take all actions necessary to confirm (and shall place into the
Mortgage
File such confirmation in writing from MERS) that it is shown as,
for
purposes of the system of recording transfers of beneficial
ownership of
mortgages maintained by MERS, the sole owner of any related UCC
Financing
Statements on record with the applicable filing office;
(x) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the
original
or a copy of the Ground Lease relating to such Mortgage Loan,
together with
a notice to the related ground lessor of the transfer of the
Mortgage Loan
to the Trust or the Trustee on its behalf;
(xi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, any original documents not otherwise described in the
preceding
clauses of this definition relating to, evidencing or constituting
Additional Collateral (except that in the case of any such
documents in the
form of a Letter of Credit, either (x) the "Mortgage File" shall
contain
the original of such Letter of Credit or (y) the "Mortgage File"
shall
contain copies of such Letter of Credit and the original if any
shall be
delivered to the applicable Master Servicer (or a Primary Servicer
on its
behalf)) and, if applicable, the originals or copies of any
intervening
assignments thereof;
(xii) an original or a copy of the loan agreement, if any,
related to such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment
under such Mortgage Loan, if any;
(xiv) an original or a copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity from
the related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement or
similar agreement relating to such Mortgage Loan (including, in the
case of
each Pooled Mortgage Loan that is included in a Mortgage Loan
Group, the
related Mortgage Loan Group Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with
respect to the related Mortgaged Property if the manager thereunder
is not
an Affiliate of the Borrower and the initial Stated Principal
Balance of
such Mortgage Loan is greater than $20,000,000;
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(xviii) an original or a copy of any master operating lease with
respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental
Insurance Policy;
(xx) if the related Mortgaged Property is a hospitality property
that is subject to a franchise or similar arrangement, (a) an
original or a
copy of any franchise or similar agreement and (b) either (i) a
signed copy
of the comfort letter delivered by the franchisor or similar person
for the
benefit of the holder of the Mortgage Loan in connection with the
Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage
Loan,
together with such instrument(s) of notice or transfer (if any) as
are
necessary to transfer or assign to the Trust or the Trustee the
benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered
by the
franchisor or similar person for the benefit of the holder of the
Mortgage
Loan in connection with such origination or acquisition of the
Mortgage
Loan, together with a signed copy or a fax copy of a new comfort
letter (in
substantially the same form and substance as the comfort letter
delivered
in connection with such origination or acquisition) by the
franchisor or
similar person for the benefit of the Trust or the Trustee (and, if
a fax
copy of a new comfort letter is delivered, then the original copy
shall be
included in the "Mortgage File" promptly following receipt thereof
by the
related Pooled Mortgage Loan Seller); and
(xxi) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection with the
origination
of such Mortgage Loan (which checklist may be in a reasonable form
selected
by the related Pooled Mortgage Loan Seller);
provided, however, that (A) whenever the term "Mortgage File" is
used to refer
to documents actually received by the Trustee or by a Custodian on
its behalf,
such term shall not be deemed to include such documents required to
be included
therein unless they are actually so received, and with respect to
any receipt or
certification by the Trustee or a Custodian on its behalf for
documents
described in clauses (vi), (vii) and (ix) through (xx) of this
definition, shall
be deemed to include such documents only to the extent the Trustee
or a
Custodian on its behalf has actual knowledge of their existence
(and the Trustee
or such Custodian, as the case may be, shall be deemed to have
actual knowledge
of the existence of any document listed on the related Mortgage
File Checklist);
(B) the "Mortgage File" for each Pooled Mortgage Loan that is
included in a
Serviced Mortgage Loan Group shall include a photocopy of the
executed Mortgage
Note for each Serviced Non-Pooled Mortgage Loan that is included in
such
Serviced Mortgage Loan Group; (C) all the documents in the
"Mortgage File" for
each Pooled Mortgage Loan included in a Serviced Mortgage Loan
Group (other than
the Mortgage Note for such Pooled Mortgage Loan and any allonges
thereto) shall
be deemed to be contained in the "Mortgage File" for each Serviced
Non-Pooled
Mortgage Loan that is included in such Serviced Mortgage Loan Group
(without
additional copies) and references herein to the "Mortgage File" for
each such
Serviced Non-Pooled Mortgage Loan shall be construed in accordance
with this
statement; and (D) the "Mortgage File" for a Non-Trust-Serviced
Pooled Mortgage
Loan shall also include a copy of the related Non-Trust Servicing
Agreement in
effect as of the Closing Date and photocopies of all transfer
documents
comparable to those documents described in clauses (iv), (vi) and
(ix)(B) of
this definition (originals of which were delivered to the
applicable trustee
under the related Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the
definition of "Mortgage File".
"Mortgage Loan": Any Pooled Mortgage Loan or Non-Pooled Mortgage
Loan.
As used herein, the term "Mortgage Loan" includes the related
Mortgage Loan
Documents.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may
require, in
the related Mortgage File and Servicing File.
"Mortgage Loan Group": Each of the Chapanoke Square Loan Group, the
Muirwood Apartments Loan Group and The Westin Copley Place Loan
Group, as
applicable.
-39-
"Mortgage Loan Group Intercreditor Agreement": Each of the
Chapanoke
Square Intercreditor Agreement, the Muirwood Apartments
Intercreditor Agreement
and The Westin Copley Place Intercreditor Agreement, as applicable.
"Mortgage Note": The original executed promissory note evidencing
the
indebtedness of a Borrower under a Mortgage Loan, together with any
rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool": All of the Pooled Mortgage Loans and any successor
REO Pooled Mortgage Loans, collectively, as of any particular date
of
determination.
"Mortgage Rate": With respect to each Mortgage Loan (and any
successor
REO Mortgage Loan with respect thereto), the related annualized
rate at which
interest is scheduled (in the absence of a default) to accrue on
such Mortgage
Loan from time to time in accordance with the related Mortgage Note
and
applicable law, as such rate may be modified in accordance with
Section 3.20
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by
the relevant
Non-Trust Master Servicer or the relevant Non-Trust Special
Servicer in
accordance with the applicable Non-Trust Servicing Agreement) or in
connection
with a bankruptcy, insolvency or similar proceeding involving the
related
Borrower. In the case of each ARD Mortgage Loan, the related
Mortgage Rate shall
increase in accordance with the related Mortgage Note if the
particular loan is
not paid in full by its Anticipated Repayment Date. Notwithstanding
any contrary
provision of the foregoing, in the case of each Closing Date
Deposit Mortgage
Loan, the "Mortgage Rate" for the month in which the Closing Date
occurs shall
be deemed to be equal to the Mortgage Rate that is scheduled to be
in effect on
the first day of the first calendar month that follows the Closing
Date (and
such Mortgage Rate that is scheduled to be in effect on the first
day of the
first calendar month that follows the Closing Date shall be set
forth on the
Pooled Mortgage Loan Schedule as if it were the applicable rate
that is in
effect on the Closing Date).
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and
fixtures
thereon) subject to the lien of a Mortgage and constituting
collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage
Loan, if and
when the context may require, "Mortgaged Property" shall mean,
collectively, all
the mortgaged real properties (together with all improvements and
fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan,
together
with any third parties through which such holder takes actions with
respect to
such Mortgage Loan.
"Muirwood Apartments Change of Control Event": The event that
results
in the trust, as the holder of the Muirwood Apartments Pooled
Mortgage Loan,
constituting the "controlling holder" under the Muirwood Apartments
Intercreditor Agreement, which event occurs if and when (a) the
aggregate
original principal balance of the Muirwood Apartments Non-Pooled
Subordinate
Loans, less the sum (without duplication) of any payments of
principal received
on the Muirwood Apartments Non-Pooled Subordinate Loans (whether as
prepayments
or otherwise), any Appraisal Reduction Amount allocated to those
loans in
accordance with the definition of "Appraisal Reduction Amount" and
any realized
principal loss on the Muirwood Apartments Loan Group, is less than
(b) 25% of
the original principal balance of the Muirwood Apartments
Non-Pooled Subordinate
Loans as reduced by any payments of principal received on such
loans (whether as
prepayments or otherwise).
"Muirwood Apartments Intercreditor Agreement": That certain
Co-Lender
Agreement, dated as of November 1, 2005, by and between Nationwide
Life
Insurance Company, as initial note A lender, and Nationwide Life
Insurance
Company, as initial note B holder and as initial note C holder,
relating to
certain mortgage loans secured by the Muirwood Apartments Mortgaged
Property.
"Muirwood Apartments Loan Group": Collectively, the Muirwood
Apartments Pooled Mortgage Loan and the Muirwood Apartments
Non-Pooled
Subordinate Loans (including any successor REO Mortgage Loans with
respect to
such loans).
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"Muirwood Apartments Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Muirwood
Apartments".
"Muirwood Apartments Non-Pooled Subordinate Loans": The mortgage
loans
with an aggregate original principal balance of $17,000,000 that
are secured by
the same Mortgage encumbering the Muirwood Apartments Mortgaged
Property as the
Muirwood Apartments Pooled Mortgage Loan and are subordinate in
right of payment
to the Muirwood Apartments Pooled Mortgage Loan and are held as of
the Closing
Date by Nationwide Life Insurance Company. The Muirwood Apartments
Non-Pooled
Subordinate Loans consist of the Muirwood Apartments Non-Pooled
Subordinate Note
B Mortgage Loan and the Muirwood Apartments Non-Pooled Subordinate
Note C
Mortgage Loan. The Muirwood Plaza Apartments Non-Pooled Subordinate
Loans are
not "Pooled Mortgage Loans" or part of the Trust Fund, any REMIC
Pool or any
Grantor Trust Pool.
"Muirwood Apartments Non-Pooled Subordinate Note B Mortgage Loan":
The
mortgage loan with an aggregate original principal balance of
$12,000,000, an
interest rate of 6.07% and the same maturity date as the Muirwood
Apartments
Pooled Mortgage Loan and is subordinate in right of payment to the
Muirwood
Apartments Pooled Mortgage Loan and pari pass in right of payment
with the
Muirwood Apartments Non-Pooled Subordinate Note C Mortgage Loan.
"Muirwood Apartments Non-Pooled Subordinate Note C Mortgage Loan":
The
mortgage loan with an aggregate original principal balance of
$5,000,000, an
interest rate of 5.87% and the same maturity date as the Muirwood
Apartments
Pooled Mortgage Loan and is subordinate in right of payment to the
Muirwood
Apartments Pooled Mortgage Loan and pari pass in right of payment
with the
Muirwood Apartments Non-Pooled Subordinate Note B Mortgage Loan.
"Muirwood Apartments Non-Pooled Subordinate Noteholder": The holder
or
holders of the related Mortgage Notes evidencing the Muirwood
Apartments
Non-Pooled Subordinate Loans.
"Muirwood Apartments Pooled Mortgage Loan": The Pooled Mortgage
Loan
in the original principal amount of $45,000,000 that is secured by
the Mortgage
encumbering the Muirwood Apartments Mortgaged Property.
"Nationwide": Nationwide Life Insurance Company, or its successor
in
interest.
"Nationwide Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original Nationwide Pooled Mortgage Loan or a Replacement
Pooled
Mortgage Loan that was delivered under the Nationwide Pooled
Mortgage Loan
Purchase Agreement in substitution for an Original Nationwide
Pooled Mortgage
Loan.
"Nationwide Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of December 9,
2005, between
Nationwide as seller and the Depositor as purchaser.
"Nationwide Primary Servicing Agreement": That certain primary
servicing agreement dated as of December 1, 2005, between WFB, as
the applicable
Master Servicer for the Nationwide Pooled Mortgage Loans, and
Nationwide, as
primary servicer, relating to the primary servicing and
administration of the
Nationwide Pooled Mortgage Loans.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments (and prepayment resulting from the receipt of
Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans
during the
related Collection Period, exceeds (b) the aggregate amount of the
Compensating
Interest Payments remitted by the Master Servicers pursuant to
Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution
Date.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the
total fixed
and variable operating expenses, capital expenditures such as
reserves, tenant
improvements and leasing commissions, incurred in respect of such
Mortgaged
Property (subject to adjustments
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for, among other things, (i) non-cash items such as depreciation
and
amortization, and (ii) debt service on loans secured by the
Mortgaged Property).
"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to
in clause
third of Section 3.26(a), which are payable to the applicable
Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as
Additional
Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for
any Collection Period, the amount, if any, by which the aggregate
of all
interest and other income realized during such Collection Period on
funds held
in such Investment Account (exclusive, in the case of a Servicing
Account, a
Reserve Account or the Defeasance Deposit Account, of any portion
of such
interest or other income payable to a Borrower in accordance with
the related
Mortgage Loan Documents and applicable law), exceeds the aggregate
of all losses
and costs, if any, incurred during such Collection Period in
connection with the
investment of such funds in accordance with Section 3.06
(exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of
any portion of such losses that were incurred in connection with
investments
made for the benefit of a Borrower).
"Net Investment Loss": With respect to any Investment Account for
any
Collection Period, the amount by which the aggregate of all losses,
if any,
incurred during such Collection Period in connection with the
investment of
funds held in such Investment Account for the benefit of a Master
Servicer, the
Special Servicer or the Certificate Administrator, as applicable,
in accordance
with Section 3.06 (exclusive, in the case of a Servicing Account, a
Reserve
Account or the Defeasance Deposit Account, of any portion of such
losses that
were incurred in connection with investments made for the benefit
of a Borrower,
and other than losses of what would otherwise have constituted
interest or other
income earned on such funds), exceeds the aggregate of all interest
and other
income realized during such Collection Period in connection with
the investment
of such funds for the benefit of such Master Servicer, the Special
Servicer or
the Certificate Administrator, as applicable, in accordance with
Section 3.06;
provided that, in the case of any Investment Account and any
particular
investment of funds in such Investment Account, Net Investment Loss
shall not
include any loss with respect to such investment which is incurred
solely as a
result of the insolvency of the federal or state chartered
depositary
institution or trust company at which such Investment Account is
maintained, so
long as such depositary institution or trust company (a) satisfied
the
qualifications set forth in the definition of "Eligible Account"
both at the
time such investment was made and as of a date not more than 30
days prior to
the date of such loss and (b) is not the same Person as the Person
that made the
relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds Received by the Trust with respect to any particular
Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all
Liquidation
Expenses incurred with respect thereto and all related Servicing
Advances
reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan
(or
any successor REO Pooled Mortgage Loan with respect thereto), the
rate per annum
equal to (a) the related Mortgage Rate minus (b) the related
Administrative Fee
Rate and, in the case of an ARD Mortgage Loan after its Anticipated
Repayment
Date, the related Post-ARD Additional Interest Rate, and (ii) the
Serviced
Non-Pooled Mortgage Loans (or any successor REO Mortgage Loan with
respect
thereto), the rate per annum equal to (a) the related Mortgage Rate
minus (b)
the related Master Servicing Fee Rate.
"New Lease": Any lease of an Administered REO Property entered into
at
the direction of the Special Servicer, including any lease renewed,
modified or
extended on behalf of the Trustee if the Special Servicer has the
power to
renegotiate the terms of such lease.
"Non-Pooled Mortgage Loan": Any mortgage loans (if any), other than
a
Pooled Mortgage Loan, that is part of a split loan structure that
includes a
Pooled Mortgage Loan as identified in the Preliminary Statement
hereto (whether
or not such split loan structure is principally serviced and
administered under
this Agreement). Only The Westin Copley Place Non-Pooled Pari Passu
Companion
Loan, the Muirwood Apartments Non-Pooled Subordinate Loans and
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the Chapanoke Square Apartments Non-Pooled Subordinate Loan
constitute
Non-Pooled Mortgage Loans under this Agreement.
"Non-Pooled Noteholder": The holder of any Non-Pooled Mortgage
Loan.
"Non-Pooled Pari Passu Companion Loan": Any Non-Pooled Mortgage
Loan
that is secured by the same Mortgage encumbering the same Mortgaged
Property as
the one encumbering a Pooled Mortgage Loan, is pari passu in right
of payment
with such Pooled Mortgage Loan and is part of a Serviced Loan
Group. The Non
Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans"
or part of the
Trust Fund, any REMIC Pool or either Grantor Trust Pool. Only The
Westin Copley
Place Non-Pooled Pari Passu Companion Loan constitutes a Non-Pooled
Pari Passu
Companion Loan under this Agreement.
"Non-Pooled Pari Passu Companion Loan Securities": For so long as
any
Non-Pooled Pari Passu Companion Loan is serviced and administered
under this
Agreement, any class of securities backed by such Non-Pooled Pari
Passu
Companion Loan. For the avoidance of doubt, there are no Non-Pooled
Pari Passu
Companion Loans serviced hereunder.
"Non-Pooled Subordinate Loan": Any of the Muirwood Apartments
Non-Pooled Subordinate Loans or the Chapanoke Square Non-Pooled
Subordinate
Loan, as applicable.
"Non-Pooled Subordinate Noteholder: Any of the Muirwood Apartments
Non-Pooled Subordinate Noteholders or the Chapanoke Square
Non-Pooled
Subordinate Noteholder, as applicable.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including
any Unliquidated Advance that constitutes a Nonrecoverable P&I
Advance) or
Nonrecoverable Servicing Advance (including any Unliquidated
Advance that
constitutes a Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section
4.03(c), any
P&I Advance, or any Unliquidated Advance in respect of a prior
P&I Advance,
previously made and any P&I Advance contemplated to be made in
respect of any
Pooled Mortgage Loan or related successor REO Pooled Mortgage Loan
that, as
determined by the applicable Master Servicer or, if applicable, by
the Trustee
or the Fiscal Agent, or by the Special Servicer pursuant to the
second paragraph
of Section 4.03(c), in its reasonable, good faith judgment, will
not be
ultimately recoverable, or in fact was not ultimately recovered,
from late
payments, Default Charges, Insurance Proceeds, Condemnation
Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such
Mortgage
Loan or the related REO Property (without giving effect to
potential recoveries
on deficiency judgments or recoveries from guarantors). In the case
of a
Cross-Collateralized Mortgage Loan, such recoverability
determination shall take
into account the cross-collateralization of the related
Cross-Collateralized
Group. In connection with each Pooled Mortgage Loan that is part of
a Mortgage
Loan Group that includes a Non-Pooled Pari Passu Companion Loan, if
the
applicable Master Servicer receives a written notice described in
clause (i) of
the third paragraph of Section 4.03(c) to the effect that the
master servicer or
other comparable party responsible for debt service advances with
respect to
such Non-Pooled Pari Passu Companion Loan under the related pooling
and
servicing agreement (pursuant to which securities were issued that
are rated by
at least one national statistical rating organization) has
determined, pursuant
to such agreement, that any debt service advance made or to be made
with respect
to such Non-Pooled Pari Passu Companion Loan (or any successor REO
mortgage loan
with respect thereto) would not ultimately be recoverable out of
collections on
such Mortgage Loan (or such REO mortgage loan), then any
prospective P&I Advance
on the related Pooled Mortgage Loan (or any successor REO Mortgage
Loan) under
this Agreement shall be deemed to constitute a Nonrecoverable
Advance,
notwithstanding the absence of any determination (as otherwise
contemplated
above and by Section 4.03(c)) by any party hereto that any prior
P&I Advance or
any prospective P&I Advance on such Pooled Mortgage Loan
constitutes a
Nonrecoverable Advance, and such Master Servicer (or the Trustee or
the Fiscal
Agent, if applicable) shall not make any such prospective P&I
Advance unless
such Master Servicer (or the Trustee or the Fiscal Agent, if
applicable) has
consulted with such other master servicer or comparable party and
they both
agree that circumstances with respect to such Mortgage Loan have
changed such
that a proposed future P&I Advance would not be a
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Nonrecoverable Advance. Notwithstanding the preceding sentence,
each party to
this Agreement with the discretion to determine that a P&I
Advance constitutes a
Nonrecoverable Advance (as otherwise contemplated above and by
Section 4.03(c))
shall continue to have such discretion.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section
3.11(h), any
Servicing Advance, or any Unliquidated Advance in respect of a
prior Servicing
Advance, previously made, and any Servicing Advance proposed to be
made, in
respect of any Mortgage Loan or REO Property that, as determined by
the
applicable Master Servicer or, if applicable, the Trustee or the
Fiscal Agent,
in its reasonable, good faith judgment, will not be ultimately
recoverable, or
in fact was not ultimately recovered, from late payments, Default
Charges,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
any other
recovery on or in respect of such Mortgage Loan or such REO
Property (without
giving effect to potential recoveries on deficiency judgments or
recoveries from
guarantors). In the case of a Cross-Collateralized Mortgage Loan,
such
recoverability determination shall take into account the
cross-collateralization
of the related Cross-Collateralized Group.
"Non-Registered Certificate": Any Certificate that has not been
subject to registration under the Securities Act. As of the Closing
Date, the
Class X-1, Class X-2, Class G, Class H, Class J, Class K, Class L,
Class M,
Class N, Class O, Class P, Class Q, Class R, Class S and Class V
Certificates
are Non-Registered Certificates.
"Non-Trust Master Servicer": With respect to the Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the Non-Trust
Servicing
Agreement.
"Non-Trust-Serviced Mortgage Loan Group": Any group of mortgage
loans
that is primarily serviced and administered under the pooling and
servicing
agreement for another commercial mortgage securitization trust.
Only The Westin
Copley Place Loan Group constitutes a Non-Trust-Serviced Mortgage
Loan Group
under this Agreement.
"Non-Trust-Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan
that is part of a Non-Trust-Serviced Mortgage Loan Group. Only The
Westin Copley
Place Pooled Mortgage Loan constitutes a Non-Trust-Serviced Pooled
Mortgage Loan
under this Agreement.
"Non-Trust Servicing Agreement": With respect to the
Non-Trust-Serviced Pooled Mortgage Loan and the Non-Trust-Serviced
Mortgage Loan
Group of which it is a part, the separate agreement pursuant to
which the
Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled
Pari Passu
Companion Loan are (or, if applicable, any related REO Property is)
to be
principally serviced and administered, which agreement is the
BSCMSI Series
2005-TOP20 PSA.
"Non-Trust Special Servicer": With respect to the Non Trust
Serviced
Pooled Mortgage Loan, the special servicer under the Non Trust
Servicing
Agreement.
"Non-United States Tax Person": Any Person other than a United
States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of a Master Servicer or Special Servicer or a Responsible Officer
of the
Certificate Administrator, the Trustee or the Fiscal Agent, as the
case may be,
or, with respect to any other Person, a certificate signed by any
of the
Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice
President, Director or Managing Director, an Assistant Vice
President or any
other authorized officer (however denominated) or another officer
customarily
performing functions similar to those performed by any of the above
designated
officers or, with respect to a particular matter, any other officer
to whom such
matter is referred because of such officer's knowledge of and
familiarity with
the particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in
the
case of any such opinion relating to the taxation of the Trust Fund
or any
portion thereof, the status of any REMIC Pool as a REMIC, the
status of any
Grantor Trust Pool as a Grantor Trust for taxation purposes or a
resignation
under Section 6.04, be Independent counsel, but who otherwise may
be salaried
counsel for the Depositor, the Certificate Administrator, the
Trustee, the Tax
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Administrator, the Fiscal Agent, either Master Servicer or the
Special
Servicer), which written opinion is acceptable and delivered to the
addressee(s)
thereof and which opinion of counsel, except as provided herein,
shall not be at
the expense of the Certificate Administrator, the Trustee or the
Trust Fund.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original BSCMI Pooled Mortgage Loans": The mortgage loans
initially
identified on the schedule attached hereto as Schedule I-B.
"Original Nationwide Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule
I-E.
"Original PCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-D.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A,
Schedule I-B,
Schedule I-C, Schedule I-D and Schedule I-E.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of 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": With respect to any Pooled Mortgage Loan or REO
Pooled
Mortgage Loan (including a Non-Trust-Serviced Pooled Mortgage Loan
or any
successor REO Pooled Mortgage Loan thereto), any advance made by
the applicable
Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day preceding each
Distribution Date.
"PAR": Prudential Asset Resources, Inc. or its successor in
interest.
"Pass-Through Rate": The per annum rate at which interest accrues
in
respect of any Class of REMIC III Certificates during any Interest
Accrual
Period, as set forth in or otherwise calculated in accordance with
Section
2.17(f).
"Past Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable,
in respect
of any particular Pooled Mortgage Loan, the status attributable to
that Mortgage
Loan by reason of, if applicable, the fact that such Monthly
Payment or Assumed
Monthly Payment remains unpaid past its Due Date and past any
applicable grace
period for such Monthly Payment or Assumed Monthly Payment.
"PCF": Principal Commercial Funding, LLC, or its successor in
interest.
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"PCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an
Original PCF Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was
delivered under the PCF Pooled Mortgage Loan Purchase Agreement in
substitution
for an Original PCF Pooled Mortgage Loan.
"PCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of December 9, 2005,
between PCF as
seller and the Depositor as purchaser.
"PCF Primary Servicing Agreement": That certain primary servicing
agreement dated as of December 1, 2005, between WFB, as the
applicable Master
Servicer for the PCF Pooled Mortgage Loans, and Principal Global
Investors, LLC,
as primary servicer, relating to the primary servicing and
administration of the
PCF Pooled Mortgage Loans.
"Percentage Interest": With respect to (a) any Interest Only
Certificate or Principal Balance Certificate, the portion of the
relevant Class
evidenced by such Certificate, expressed as a percentage, the
numerator of which
is the Certificate Principal Balance or Certificate Notional
Amount, as the case
may be, of such Certificate as of the Closing Date, as specified on
the face
thereof, and the denominator of which is the initial Class
Principal Balance or
initial Class Notional Amount, as the case may be, of the relevant
Class as of
the Closing Date; and (b) any Class R or Class V Certificate, the
percentage
interest in distributions to be made with respect to the relevant
Class, as
specified on the face of such Certificate.
"Performance Certification": As defined in Section 8.15(b).
"Performing Party": As defined in Section 8.15(b).
"Performing Serviced Mortgage Loan": Any Serviced Mortgage Loan
that
is not a Specially Serviced Mortgage Loan.
"Permitted Investments": Any one or more of the following
obligations
or securities:
(i)
direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities
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(or, in the case of any such Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency as confirmed in writing to
the Trustee by such Rating Agency), as applicable;
(iii) federal funds, unsecured uncertificated certificates of
deposit,
time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any
state thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any such Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency as confirmed in
writing to the Trustee by such Rating Agency), as applicable;
(iv) commercial paper of any corporation incorporated under the
laws
of the United States or any state thereof (or of any corporation
not so incorporated, provided that the commercial paper is United
States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in
the highest short-term debt rating category of: (x) in the case
of an investment being made with funds that do not relate in
whole or in part to any Serviced Non-Pooled Mortgage Loan, each
Rating Agency for the Rated Certificates (or, in the case of any
such Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, as confirmed in writing
to the Trustee by such Rating Agency), (y) in the case of an
investment being made with funds that relate in whole or in part
to any Serviced Non-Pooled Mortgage Loan and also relate to one
or more Pooled Mortgage Loans, each Rating Agency for the Rated
Certificates and each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (as evidenced by
a written confirmation to the Trustee from each Rating Agency
that such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any
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such Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any class of such Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable
Rating Agency as confirmed in writing to the Trustee by such
Rating Agency), as applicable;
(v)
units of money market funds (including those managed or advised
by the Certificate Administrator or its Affiliates) which
maintain a constant net asset value, provided that such units of
money market funds are rated in the highest applicable rating
category of: (x) in the case of an investment being made with
funds that do not relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Trustee by such Rating
Agency), (y) in the case of an investment being made with funds
that relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan and also relate to one or more Pooled Mortgage
Loans, each Rating Agency for the Rated Certificates and each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (as evidenced by a written confirmation
to the Trustee from each Rating Agency that such investment would
not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency and also from each applicable Rating Agency that such
investment would not, in and of itself, result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating
Agency), as applicable, or (z) in the case of an investment being
made with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related Non-Pooled
Pari Passu Companion Loan Securities (or, in the case of any such
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating
Agency as confirmed in writing to the Trustee by such Rating
Agency), as applicable; or
(vi) any other obligation or security that is acceptable to: (x) in
the case of an investment being made with funds that do not
relate in whole or in part to any Serviced Non-Pooled Mortgage
Loan, each Rating Agency for the Rated Certificates (or, in the
case of any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case of
an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any such Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency as confirmed in
writing to the Trustee by such Rating Agency), as applicable;
provided that each investment described hereunder shall not (A)
evidence either
the right to receive (1) only interest with respect to such
investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations, (B) be purchased at a price greater than
par if such
investment may be prepaid or called at a price less than its
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purchase price prior to stated maturity, (C) be sold prior to
stated maturity if
such sale would result in a loss of principal on the instrument or
a tax on
"prohibited transactions" under Section 860F of the Code or (D)
have an "r"
highlighter or other comparable qualifier attached to its rating;
and provided,
further, that each investment described hereunder must have (X) a
predetermined
fixed amount of principal due at maturity (that cannot vary or
change), (Y) an
original maturity of not more than 365 days and a remaining
maturity of not more
than 30 days and (Z) except in the case of a Permitted Investment
described in
clause (v) of this definition, a fixed interest rate or an interest
rate that is
tied to a single interest rate index plus a single fixed spread and
moves
proportionately with that index; and provided, further, that each
investment
described hereunder must be a "cash flow investment" (within the
meaning of the
REMIC Provisions).
"Permitted Transferee": Any Transferee of a Class R Certificate
other
than (a) a Disqualified Organization, (b) a Disqualified Non-United
States Tax
Person, (c) a Disqualified Partnership, (d) a foreign permanent
establishment or
fixed base (within the meaning of any applicable income tax treaty
between the
United States and any foreign jurisdiction) of a United States Tax
Person or (e)
any other Person as to whom, as determined by the Tax Administrator
(based upon
an Opinion of Counsel, obtained at the request of the Tax
Administrator at the
expense of such Person or the Person seeking to Transfer a Class R
Certificate,
supporting such determination), the Transfer of a Class R
Certificate may cause
any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, the American Society for
Testing and
Materials, plus a radon and asbestos inspection.
"Plan": Any of those employee benefit plans and other benefit plans
and arrangements, including individual retirement accounts and
annuities, Keogh
plans and collective investment funds and separate accounts in
which such plans,
accounts or arrangements are invested, including insurance company
general
accounts, that are subject to ERISA or Section 4975 of the Code.
"PMCF": Prudential Mortgage Capital Funding, LLC, or its successor
in
interest.
"PMCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either
an Original PMCF Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan that
was delivered under the PMCF Pooled Mortgage Loan Purchase
Agreement in
substitution for an Original PMCF Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of December 9, 2005,
between PMCF as
seller and the Depositor as purchaser.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans
and
Replacement Pooled Mortgage Loans that are from time to time held
in the Trust
Fund, including any such mortgage loan that has been wholly or
partially
defeased. As used herein, the term "Pooled Mortgage Loan" includes
the related
Mortgage Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan
Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement, the
PCF Pooled
Mortgage Loan Purchase Agreement and the Nationwide Pooled Mortgage
Loan
Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the five schedules
of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule
I-B, Schedule
I-C, Schedule I-D and Schedule I-E, respectively, as any such
schedule may be
amended from time to time in accordance with this Agreement. Such
schedules
shall set forth the following information with respect to each
Pooled Mortgage
Loan:
(i)
the loan number assigned to the Pooled Mortgage Loan on the books
and records of the related
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Pooled Mortgage Loan Seller as of the Closing Date and the
identification number assigned to such Pooled Mortgage Loan in
the Prospectus Supplement;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Pooled Mortgage Loan
currently requires only payments of interest but begins to
amortize prior to Stated Maturity Date, on the first Due Date
after amortization begins);
(v)
the Mortgage Rate as of the Closing Date and the Interest Accrual
Basis;
(vi) the Stated Maturity Date and the original and remaining term
to
Stated Maturity Date (or, in the case of a Pooled Mortgage Loan
that is an ARD Mortgage Loan, the Anticipated Repayment Date and
the original and remaining term to the Anticipated Repayment
Date);
(vii) in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage
Loan or an ARD Mortgage Loan, the original and remaining
amortization term;
(viii) whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Pooled
Mortgage Loans with which such Pooled Mortgage Loan is
cross-collateralized;
(ix) whether such Pooled Mortgage Loan provides for defeasance and
if
so, the period during which defeasance may occur;
(x)
whether such Pooled Mortgage Loan is secured by a fee simple
interest in the related Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the related
Mortgaged Property; or solely by a leasehold interest in the
related Mortgaged Property;
(xi) the name of the related Pooled Mortgage Loan Seller;
(xii) the Administrative Fee Rate;
(xiii) the Due Date;
(xiv) the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a delinquent
Monthly Payment;
(xv) whether there exists (and, if so, the amount of) any letter of
credit that constitutes Additional Collateral;
(xvi) whether repayment of such Pooled Mortgage Loan is guaranteed
by
a guarantor;
(xvii) the initial Master Servicer and the Master Servicing Fee
Rate
for such Pooled Mortgage Loan; and
(xviii) the applicable Loan Group to which such Pooled Mortgage
Loan
belongs.
"Pooled Mortgage Loan Sellers": Collectively, BSCMI, Nationwide,
PCF,
PMCF and WFB.
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"Post-ARD Additional Interest": With respect to any ARD Mortgage
Loan
after its Anticipated Repayment Date, all interest accrued on the
principal
balance of such ARD Mortgage Loan at the Post-ARD Additional
Interest Rate (the
payment of which interest shall, under the terms of such ARD
Mortgage Loan, be
deferred until the principal balance of such ARD Mortgage Loan and
all other
interest thereon has been paid in full), together with all
interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD
Mortgage
Loan after its Anticipated Repayment Date, the incremental increase
in the
Mortgage Rate for such ARD Mortgage Loan resulting from the passage
of such
Anticipated Repayment Date.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular
Interests
and the Certificates for federal income tax purposes, the
assumptions that each
Pooled Mortgage Loan that is an ARD Mortgage Loan is paid in its
entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is
otherwise
voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled Mortgage
Loan
(including a Non-Trust-Serviced Pooled Mortgage Loan) that was
subject to a
Principal Prepayment in full or in part made (or, if resulting from
the
application of Insurance Proceeds or Condemnation Proceeds, any
other early
recovery of principal received) after the Due Date for such Pooled
Mortgage Loan
in any Collection Period, any payment of interest (net of related
Master
Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan,
the rate per annum at which the master or similar servicing and
administrative
fees payable therefrom under the related Non-Trust Servicing
Agreement accrue as
set forth in the definition of "Administrative Fee Rate") and, in
any case,
further net of any portion of such interest that represents Default
Charges or
Post-ARD Additional Interest) actually Received by the Trust and
collected from
the related Borrower or out of such Insurance Proceeds or
Condemnation Proceeds,
as the case may be, and intended to cover the period from and after
such Due
Date to, but not including, the date of prepayment (exclusive, for
the avoidance
of doubt, of any related Prepayment Premium or Yield Maintenance
Charge that may
have been collected).
"Prepayment Interest Shortfall": With respect to any Pooled
Mortgage
Loan (including a Non-Trust-Serviced Pooled Mortgage Loan) that was
subject to a
Principal Prepayment in full or in part made (or, if resulting from
the
application of Insurance Proceeds or Condemnation Proceeds, any
other early
recovery of principal received) prior to the Due Date for such
Pooled Mortgage
Loan in any Collection Period the amount of interest, to the extent
not
collected from the related Borrower or otherwise (without regard to
any
Prepayment Premium or Yield Maintenance Charge that may have been
collected),
not Received by the Trust, that would have accrued at a rate per
annum equal to
the related Mortgage Rate (net of the Master Servicing Fee Rate
(and, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, the rate per
annum at which
the master or similar servicing and administrative fees payable
therefrom under
the related Non-Trust Servicing Agreement accrue as set forth in
the definition
of "Administrative Fee Rate") and, in the case of an ARD Mortgage
Loan after its
Anticipated Repayment Date, the related Post-ARD Additional
Interest Rate) on
the amount of such Principal Prepayment (or other early recovery of
principal)
during the period from the date to which interest thereon was paid
by the
related Borrower to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any
premium,
fee or other additional amount (other than a Yield Maintenance
Charge) paid or
payable, as the context requires, by a Borrower in connection with
a Principal
Prepayment on, or other early collection of principal of, such
Mortgage Loan or
any successor REO Mortgage Loan with respect thereto (including any
payoff of a
Mortgage Loan by a mezzanine lender on behalf of the subject
Borrower if and as
set forth in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized
Mortgage Loan, that portion of the Mortgaged Property designated as
directly
securing such Cross-Collateralized Mortgage Loan and excluding any
Mortgaged
Property as to which the related lien may only be foreclosed upon
by exercise of
the cross-collateralization provisions of such Cross-Collateralized
Mortgaged
Loan.
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"Primary Servicer": Nationwide or any successor thereto or
Principal
Global Investors, LLC or any successor thereto, as applicable,
appointed as
provided in the Nationwide Primary Servicing Agreement or PCF
Primary Servicing
Agreement, respectively.
"Primary Servicing Agreement": Each of the Nationwide Primary
Servicing Agreement and the PCF Primary Servicing Agreement, as
applicable.
"Primary Servicing Fee": With respect to a Primary Servicer, the
primary servicing fee that is payable to such Primary Servicer
under the terms
of the related Primary Servicing Agreement.
"Primary Servicing Office": The office of a Master Servicer or the
Special Servicer, as the context may require, that is primarily
responsible for
such party's servicing obligations hereunder.
"Principal Balance Certificate": Any of the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O, Class P, Class Q and Class S
Certificates.
"Principal Distribution Amount": With respect to any Distribution
Date
other than the Final Distribution Date, an amount (which shall in
no event be
less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following (such
aggregate of the following amounts described below in this clause
(A), the
"Unadjusted Principal Distribution Amount" for such Distribution
Date):
(i) all payments of principal (including Principal
Prepayments), including any such payments on Corrected Mortgage
Loans,
Received by the Trust with respect to the Pooled Mortgage Loans
during
the related Collection Period, in each case exclusive of any
portion
of the particular payment that represents a Late Collection of
principal for which a P&I Advance (including any Unliquidated
Advance
in respect of a prior P&I Advance) was previously made under
this
Agreement for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off
Date or on a Due Date occurring subsequent to the calendar month in
which such Distribution Date occurs,
(ii) the aggregate of the principal portions of all Monthly
Payments due in respect of the Pooled Mortgage Loans for their
respective Due Dates occurring in the month in which such
Distribution
Date occurs, that were Received by the Trust (other than as part of
a
Principal Prepayment) prior to the related Collection Period (or,
in
the case of any Pooled Mortgage Loan for which the Due Date occurs
on
a day other than the first day of each month, that were Received by
the Trust in the calendar month prior to the calendar month in
which
the related Distribution Date occurs but are due during the
calendar
month in which the related Distribution Date occurs),
(iii) the aggregate of all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds Received by the Trust
with respect to any Pooled Mortgage Loans during the related
Collection Period that were identified and applied by the
applicable
Master Servicer as recoveries of principal (whether as Principal
Prepayments or otherwise) of such Pooled Mortgage Loans in
accordance
with Section 1.03, in each case net of any portion of such proceeds
that represents a Late Collection of principal due on or before the
Cut-off Date or for which a P&I Advance (including an
Unliquidated
Advance in respect of a prior P&I Advance) was previously made
under
this Agreement for a prior Distribution Date,
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(iv) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the Trust
with respect to any REO Properties during the related Collection
Period that were identified and applied by the applicable Master
Servicer as recoveries of principal (whether as Principal
Prepayments
or otherwise) of the related REO Pooled Mortgage Loans in
accordance
with Section 1.03, in each case net of any portion of such proceeds
and/or revenues that represents a Late Collection of principal due
on
or before the Cut-off Date or for which a P&I Advance
(including an
Unliquidated Advance in respect of a prior P&I Advance) was
previously
made under this Agreement for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances
made under this Agreement in respect of the Pooled Mortgage Loans
and
any REO Pooled Mortgage Loans with respect to such Distribution
Date;
(B) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection
Period
that, in each case, represents a delinquent amount as to which an
Advance
had been made, which Advance was previously reimbursed during the
Collection Period for a prior Distribution Date as part of a
Workout-Delayed Reimbursement Amount for which a deduction was made
under
clause (II)(B) below with respect to such Distribution Date; and
(C) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection
Period
that, in each case, is identified and applied by the applicable
Master
Servicer (in accordance with Section 1.03) as a recovery of an
amount
previously determined (in a Collection Period for a prior
Distribution
Date) to have been a Nonrecoverable Advance and for which a
deduction was
made under clause (II)(C) below with respect to a prior
Distribution Date;
less
(II) the sum of:
(A) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Pooled
Mortgage Loan
or REO Property, and/or any Pooled Mortgage Loan or REO Property is
otherwise liquidated (including by means of a Final Recovery
Determination
or the receipt of a full, partial or discounted payoff), during the
related
Collection Period, an amount equal to any Workout Fees or
Liquidation Fees
with respect to each such Pooled Mortgage Loan or REO Property, as
the case
may be, that were paid hereunder from a source other than related
Default
Charges during the related Collection Period;
(B) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that were reimbursed or paid during
the
related Collection Period to one or more of the Master Servicers,
the
Special Servicer, the Trustee and the Fiscal Agent from principal
advances
and collections on the Mortgage Pool pursuant to subsection (iii)
of
Section 3.05(a)(II); and
(C) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that were reimbursed or paid during the related
Collection Period to one or more of the Master Servicers, the
Special
Servicer, the Trustee and the Fiscal Agent during the related
Collection
Period from principal advances and collections on the Mortgage Pool
pursuant to subsection (iv) of Section 3.05(a)(II).
provided, however, that the foregoing provisions of this definition
shall be
construed in a manner that is consistent with Section 3.02(d).
For purposes of determining the portion of the Principal
Distribution
Amount that is attributable to Loan Group 1 or Loan Group 2 in
connection with
any Distribution Date, any reduction in the Principal Distribution
Amount that
is described in any of clauses (II)(A), (B) and/or (C) above that
arises from a
particular Pooled Mortgage Loan will be applied, first as a
reduction of the
portion of the Principal Distribution Amount that is otherwise
attributable to
the Loan Group that includes such Pooled Mortgage Loan (until such
portion, net
of all subtractions pursuant to clauses (II)(A), (B)
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and (C) above arising from Pooled Mortgage Loans in such Loan
Group, is equal to
zero), and, then, as a reduction of the portion of the Principal
Distribution
Amount that is otherwise attributable to the other Loan Group
(until such
portion, net of all such subtractions pursuant to clauses (II)(A),
(B) and (C)
above arising from Pooled Mortgage Loans in such Loan Group and all
subtractions
pursuant to this clause, is equal to zero); and any increase in the
Principal
Distribution Amount that is described in either of clauses (II)(B)
and/or (C)
above that arises from a recovery of a previously reimbursed amount
related to a
particular Pooled Mortgage Loan will be applied, first, if the
attributable
portion of the Principal Distribution Amount for the unrelated Loan
Group (that
is, the Loan Group that does not include such Pooled Mortgage Loan)
was
previously reduced on account of such particular Pooled Mortgage
Loan or any
other Pooled Mortgage Loan in the same Loan Group as such
particular Pooled
Mortgage Loan, as an increase in the portion of the Principal
Distribution
Amount that is otherwise attributable to the Loan Group that does
not include
such Pooled Mortgage Loan (until the cumulative amount of such
increases under
this clause is equal to the cumulative reductions to the
attributable portion of
the Principal Distribution Amount for that Loan Group on account of
Pooled
Mortgage Loans not included in such Loan Group), and, then, as an
increase in
the portion of the Principal Distribution Amount that is otherwise
attributable
to the Loan Group that includes such Pooled Mortgage Loan.
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal
Balance of the
entire Mortgage Pool outstanding immediately prior to the Final
Distribution
Date.
In no event shall any portion of any Excess Liquidation Proceeds
constitute a portion of the Principal Distribution Amount for any
Distribution
Date.
"Principal Prepayment": Any payment of principal made by the
Borrower
on a Mortgage Loan which is received in advance of its scheduled
Due Date and
that is not accompanied by an amount of interest (without regard to
any
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD
Additional Interest
that may have been collected) representing scheduled interest due
on any date or
dates in any month or months subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement
Memorandum
dated December 9, 2005, relating to certain classes of the
Non-Registered
Certificates delivered by the Depositor to Bear, Stearns & Co.
Inc. and Morgan
Stanley & Co. Incorporated as of the Closing Date.
"Privileged Person": Any of the following: a party to this
Agreement,
an Underwriter, a Pooled Mortgage Loan Seller, the Controlling
Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate
Administrator
in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as
applicable (which
form shall also be located on, and may be submitted electronically
via, the
Certificate Administrator's internet website), that such Person is
either a
Certificate Owner or a prospective purchaser of a Certificate or
any interest
therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
December 9, 2005, relating to the Registered Certificates, that is
a supplement
to the Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the
outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled
Mortgage Loan)
as of the date of purchase, (b) all accrued and unpaid interest on
such Pooled
Mortgage Loan (or the related REO Pooled Mortgage Loan) at the
related Mortgage
Rate (in the case of a Non-Trust-Serviced Pooled Mortgage
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Loan, net of the rate at which master or similar servicing and
administrative
fees payable under the related Non-Trust Servicing Agreement
accrue) to, but not
including, the Due Date occurring in the Collection Period (or, in
the case of
any Pooled Mortgage Loan for which the Due Date occurs on a day
other than the
first day of each month, the Due Date occurring in the month in
which such
Collection Period ends) during which the applicable purchase or
repurchase
occurs (exclusive, however, of any portion of such accrued but
unpaid interest
that represents Default Interest or, in the case of an ARD Mortgage
Loan after
its Anticipated Repayment Date, Additional Interest), (c) all
related
unreimbursed Servicing Advances (together with Unliquidated
Advances in respect
of prior Servicing Advances) and all related Servicing Advances
(without
duplication with Unliquidated Advances described in the immediately
preceding
parenthetical clause) that were previously reimbursed out of
collections on
other Pooled Mortgage Loans and/or REO Properties relating to other
Pooled
Mortgage Loans, if any, (d) all accrued and unpaid Advance Interest
with respect
to any related Advances, and (e) solely in the case of a purchase,
repurchase or
substitution, as applicable, by a Pooled Mortgage Loan Seller
pursuant to the
related Pooled Mortgage Loan Purchase Agreement, (i) to the extent
not otherwise
included in the amount described in clause (d) of this definition,
any unpaid
Special Servicing Fees and other outstanding Additional Trust Fund
Expenses with
respect to such Pooled Mortgage Loan (or REO Property) and (ii) to
the extent
not otherwise included in the amount described in clause (c) or
clause (e) of
this definition, any costs and expenses incurred by a Master
Servicer, the
Special Servicer, the Trustee or an agent of any of them (on behalf
of the
Trust) in enforcing the obligation, if any, of a Pooled Mortgage
Loan Seller to
repurchase or replace such Mortgage Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with
at least five years of experience in respect of the relevant
geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by
Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has
an
outstanding Stated Principal Balance, after application of all
scheduled
payments of principal and interest due during or prior to the month
of
substitution, not in excess of the Stated Principal Balance of the
Defective
Pooled Mortgage Loan as of the Due Date in the calendar month
during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not
less than, and
not more than one percentage point in excess of, the Mortgage Rate
of the
Defective Pooled Mortgage Loan; (iii) has the same monthly Due Date
as, and a
grace period for delinquent Monthly Payments that is no longer
than, the Due
Date and grace period, respectively, of the Defective Pooled
Mortgage Loan; (iv)
accrues interest on the same Interest Accrual Basis as the
Defective Pooled
Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and
not more than one year less than, that of the Defective Pooled
Mortgage Loan,
(vi) has a Stated Maturity Date not later than two years prior to
the Rated
Final Distribution Date; (vii) has a then current loan-to-value
ratio not higher
than, and a then current debt service coverage ratio not lower
than, the
loan-to-value ratio and debt service coverage ratio, respectively,
of the
Defective Pooled Mortgage Loan as of the Closing Date; (viii) has
comparable
prepayment restrictions to those of the Defective Pooled Mortgage
Loan; (ix)
will comply, as of the date of substitution, with all of the
representations
relating to the Defective Pooled Mortgage Loan set forth in or made
pursuant to
the related Pooled Mortgage Loan Purchase Agreement; (x) has a
Phase I
Environmental Assessment relating to the related Mortgaged Property
in its
Servicing File, which Phase I Environmental Assessment will
evidence that there
is no material adverse environmental condition or circumstance at
the related
Mortgaged Property for which further remedial action may be
required under
applicable law; and (xi) constitutes a "qualified replacement
mortgage" within
the meaning of Section 860G(a)(4) of the Code (as evidenced by an
Opinion of
Counsel provided by the related Pooled Mortgage Loan Seller at
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its expense); provided, however, that if more than one mortgage
loan is to be
substituted for any Defective Pooled Mortgage Loan, then all such
proposed
Replacement Pooled Mortgage Loans shall, in the aggregate, satisfy
the
requirement specified in clause (i) of this definition and have a
weighted
average remaining term to stated maturity that satisfies the
condition described
in clause (v) above and each such proposed Replacement Pooled
Mortgage Loan
shall, individually, satisfy each of the requirements specified in
clauses (ii)
through (iv) and clauses (vi) through (xi) of this definition; and
provided,
further, that no mortgage loan shall be substituted for a Defective
Pooled
Mortgage Loan unless (a) such prospective Replacement Pooled
Mortgage Loan shall
be acceptable to the Controlling Class Representative (or, if there
is no
Controlling Class Representative then serving, to the Holders of
Certificates
representing a majority of the Voting Rights allocated to the
Controlling
Class), in its (or their) sole discretion, (b) each Rating Agency
for the Rated
Certificates shall have confirmed in writing to the Trustee that
such
substitution will not in and of itself result in an Adverse Rating
Event with
respect to any Class of Rated Certificates (such written
confirmation to be
obtained by the related Pooled Mortgage Loan Seller effecting the
substitution)
and (c) the related Pooled Mortgage Loan Seller (at its expense)
has delivered
or caused to have been delivered to the Trustee an Opinion of
Counsel to the
effect that the substitution of such mortgage loan would not result
in an
Adverse REMIC Event with respect to any REMIC Pool. When a
Qualifying Substitute
Mortgage Loan is substituted for a Defective Pooled Mortgage Loan,
the
applicable Pooled 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 Certificate": Any of the Certificates to which a rating has
been assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of
Rated
Certificates, the Distribution Date in December 2040.
"Rating Agency": With respect to (i) any Class of Rated
Certificates,
each of Fitch and S&P, and (ii) any provision of this Agreement
relating to any
Serviced Non-Pooled Mortgage Loan in which any Non-Pooled Pari
Passu Companion
Loan Securities evidence interests or by which they are otherwise
backed or
secured, each rating agency then rating any related class of such
Non-Pooled
Pari Passu Companion Loan Securities or its respective successors
in interest.
"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made (or any related successor REO Pooled
Mortgage
Loan as to which a Final Recovery Determination has been made as to
the
related REO Property), and with respect to each Pooled Mortgage
Loan that
is a Corrected Mortgage Loan on which all amounts have been fully
paid
under the terms of such Corrected Mortgage Loan (as it may have
been
modified), an amount (not less than zero) equal to the excess, if
any, of
(a) the sum of (i) the unpaid principal balance of such Pooled
Mortgage
Loan or REO Pooled Mortgage Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery
Determination was made or the final payment was made, as the case
may be,
plus (ii) without taking into account the amount described in
subclause
(1)(b) of this definition, all accrued but unpaid interest
(exclusive,
however, of any portion of such accrued but unpaid interest that
represents
Default Interest or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) on such Pooled
Mortgage
Loan or such REO Pooled Mortgage Loan, as the case may be, to but
not
including the Due Date in the Collection Period in which the Final
Recovery
Determination was made or such final payment was made, as the case
may be,
plus (iii) without duplication with amounts included under another
subclause above, all related unreimbursed Servicing Advances
(together with
Unliquidated Advances in respect of prior Servicing Advances) and
unpaid
Liquidation Expenses, plus (iv) the amount of any and all related
Special
Servicing Fees, Liquidation Fees and/or Workout Fees with respect
to such
Mortgage Loan or successor REO Mortgage Loan, to the extent not
previously
reflected as Realized Loss with respect to such Mortgage Loan or
successor
REO Mortgage Loan, over (b) all payments and proceeds, if any,
Received by
the Trust in respect of such Pooled Mortgage Loan or, to the extent
allocable to such REO Pooled Mortgage Loan, the related REO
Property, as
the case may be, during the Collection Period in which such Final
Recovery
Determination was made or such final payment was made, as the case
may be;
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(2) each Pooled Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy
or
similar proceeding involving the related Borrower or a
modification,
extension, waiver or amendment of such Mortgage Loan granted or
agreed to
by the applicable Master Servicer or the Special Servicer pursuant
to
Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan,
by the related Non-Trust Master Servicer or the related Non-Trust
Special
Servicer pursuant to the related Non-Trust Servicing Agreement),
the amount
of such principal and/or interest (other than Default Interest and,
in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest) or Unliquidated Advance so canceled; and
(3) each Pooled Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any
period in
connection with a bankruptcy or similar proceeding involving the
related
Borrower or a modification, extension, waiver or amendment of such
Pooled
Mortgage Loan granted or agreed to by the applicable Master
Servicer or the
Special Servicer pursuant to Section 3.20 (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust
Master
Servicer or the related Non-Trust Special Servicer pursuant to the
related
Non-Trust Servicing Agreement), the amount of the consequent
reduction in
the interest portion of each successive Monthly Payment due thereon
(on the
related Due Date for the affected Monthly Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss
to
any REMIC I Regular Interest, any REMIC II Regular Interest or any
Class of
Principal Balance Certificates, as the case may be, may occur (i)
in the case of
any amount described in clause (1) or clause (2) above, solely
pursuant to, in
accordance with and to the extent provided by the combination of
(x) the
accounting for such amount that occurs under the definition of
"Stated Principal
Balance" and (y) the operation of Section 4.04 of this Agreement
and (ii) in the
case of any amount described in clause (3) above, solely pursuant
to, in
accordance with and to the extent provided by the operation of
Section 4.04 of
this Agreement.
"Realized Loss Report": With respect to each Collection Period, the
report in the form of and containing the information provided for
on Exhibit E-4
hereto. The Realized Loss Report shall be in Excel format or such
other format
as is reasonably acceptable to the Master Servicers, the Servicer
Report
Administrator, the Trustee, the Certificate Administrator and the
Controlling
Class Representative.
"Received by the Trust": In the case of: (a) a Non-Trust-Serviced
Pooled Mortgage Loan or any REO Property related thereto, received
by the
Trustee (or the applicable Master Servicer on behalf of the
Trustee), as holder
of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage
Loan, on behalf
of the Trust; and (b) any Serviced Mortgage Loan or related REO
Property,
received by a Master Servicer (or any Sub-Servicer thereof), the
Special
Servicer (or any Sub-Servicer thereof) or the Trustee, as the case
may be, on
behalf of the Trust and/or, in connection with a Serviced Mortgage
Loan Group,
the related Serviced Non-Pooled Mortgage Loan Noteholder(s).
"Record Date": With respect to any Distribution Date and each Class
of
Certificates, the last Business Day of the month immediately
preceding the month
in which such Distribution Date occurs.
"Reference Rate": With respect to any Interest Accrual Period, the
applicable rate per annum set forth on the schedule attached hereto
as Schedule
IV.
"Registered Certificate": Any Certificate that has been the subject
of
registration under the Securities Act. As of the Closing Date, the
Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M,
Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates
constitute
Registered Certificates.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of
the United
States in reliance on Regulation S, a single global Certificate, or
multiple
global
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Certificates collectively, in definitive, fully registered form
without interest
coupon, each of which Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, a legend generally to the effect that
such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
Release Date
except pursuant to an exemption from the registration requirements
of the
Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual
of
Advance Interest, which rate per annum is equal to the "prime rate"
published in
the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may
change from time to time. If The Wall Street Journal ceases to
publish the
"prime rate", then the Trustee, in its sole discretion, shall
select an
equivalent publication that publishes such "prime rate"; and if
such "prime
rate" is no longer generally published or is limited, regulated or
administered
by a governmental or quasi-governmental body, then the Trustee
shall select a
comparable interest rate index. In either case, such selection
shall be made by
the Trustee in its sole discretion and the Trustee shall notify the
Master
Servicers and the Special Servicer in writing of its selection.
"Release Date": The date that is 40 days following the later of (i)
the Closing Date and (ii) the commencement of the initial offering
of the
Non-Registered Certificates in reliance on Regulation S.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in
Section
2.13(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in
each such
case, designated as a "regular interest" (within the meaning of
Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests
have the
designations and terms provided for in Section 2.13.
"REMIC I Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any
Interest Accrual
Period, as set forth in or otherwise calculated in accordance with
Section
2.13(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in
Section 2.15(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in
each such
case, designated as a "regular interest" (within the meaning of
Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests
have the
designations provided for in the Preliminary Statement hereto. The
REMIC II
Regular Interests have the terms provided for in Section 2.15.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any
Interest Accrual
Period, as set forth in or otherwise calculated in accordance with
Section
2.15(f).
"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.17(a).
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"REMIC III Certificate": Any of the Interest Only Certificates and
the
Principal Balance Certificates. The REMIC III Certificates have the
terms
provided for in Section 2.17.
"REMIC III Component": Any of the separate beneficial ownership
interests in REMIC III issued hereunder, evidenced by a Class of
Interest Only
Certificates. The REMIC III Components have the designations
provided for in the
Preliminary Statement hereto. The REMIC III Components have the
terms provided
for in Section 2.17.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
"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 proposed, temporary and final Treasury regulations
and any
published rulings, notices and announcements 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": A segregated custodial account or accounts created
and
maintained by the Special Servicer, pursuant to and for the benefit
of the
Persons specified in Section 3.16(b), which shall be entitled
"ARCap Servicing,
Inc. [or the name of any successor Special Servicer], as Special
Servicer, on
behalf of LaSalle Bank National Association [or the name of any
successor
Trustee], as Trustee, in trust for the registered holders of Bear
Stearns
Commercial Mortgage Securities II Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2005-PWR10, and if the account is established
for the
deposit of funds received in respect of one or more REO Properties
related to
any Serviced Mortgage Loan Group for which it is the Special
Servicer for the
owners of the applicable Serviced Non-Pooled Mortgage Loans, as
their interests
may appear, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related
Non-Trust
Servicing Agreement).
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18 (or, in the case of any REO Property
related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related
Non-Trust
Servicing Agreement).
"REO Extension" As defined in Section 3.16(a).
"REO Mortgage Loan": The successor mortgage loan to a Mortgage Loan
(including those deemed to be outstanding with respect to a
Serviced Non-Pooled
Mortgage Loan or a Non-Trust-Serviced Pooled Mortgage Loan), which
successor
mortgage loan is deemed for purposes hereof to be outstanding with
respect to
each REO Property. Each REO Mortgage Loan shall be deemed to
provide for monthly
payments of principal and/or interest equal to its Assumed Monthly
Payment and
otherwise to have the same terms and conditions as its predecessor
Mortgage Loan
(such terms and conditions to be applied without regard to the
default on such
predecessor Mortgage Loan and the acquisition of the related REO
Property on
behalf of the Trust or, if applicable, in the case of any REO
Property related
to any Mortgage Loan Group, on behalf of the Trust and the
respective holders of
the related Non-Pooled Mortgage Loan(s)). Each REO Mortgage Loan
shall be deemed
to have an initial unpaid principal balance and Stated Principal
Balance equal
to the unpaid principal balance and Stated Principal Balance,
respectively, of
its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All
Monthly Payments (other than a Balloon Payment), Assumed Monthly
Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its
Balloon
Payment) and other amounts due and owing, or
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deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of
the date of the related REO Acquisition, shall be deemed to
continue to be due
and owing in respect of an REO Mortgage Loan. In addition, all
amounts payable
or reimbursable to the applicable Master Servicer, the Special
Servicer, the
Trustee or the Fiscal Agent in respect of the predecessor Mortgage
Loan as of
the date of the related REO Acquisition, including any unpaid or
unreimbursed
Master Servicing Fees, Special Servicing Fees and Advances
(together with
Unliquidated Advances in respect of prior Advances), together with
any related
unpaid Advance Interest on such Advances (other than Unliquidated
Advances),
shall continue to be payable or reimbursable in the same priority
and manner
pursuant to Section 3.05(a) to the applicable Master Servicer, the
Special
Servicer, the Trustee, the Fiscal Agent or the Trust, as the case
may be, in
respect of an REO Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (and,
in the case
of each such Mortgaged Property relating to a Serviced Mortgage
Loan Group, also
on behalf of the related Serviced Non-Pooled Mortgage Loan
Noteholder(s))
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; provided that a Mortgaged Property that
secures a
Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO
Property if and
when it is acquired under the related Non-Trust Servicing Agreement
for the
benefit of the Trustee as the holder of such Non-Trust-Serviced
Pooled Mortgage
Loan and of the holder of the related Non-Pooled Pari Passu
Companion Loan
through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with a default or
imminent default
of such Non-Trust-Serviced Pooled Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property, other than
any income,
profits or proceeds derived from the REO Disposition of such REO
Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute
Mortgage
Loan that is substituted by a Pooled Mortgage Loan Seller for a
Defective Pooled
Mortgage Loan as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer of,
as
applicable, a Master Servicer in the form of Exhibit C-1 attached
hereto or the
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the
case of
fidelity bond coverage provided by such insurance carrier, "A-" by
Fitch and
"A-" by S&P, (ii) in the case of a policy or policies of
insurance issued by
such insurance carrier covering loss occasioned by the errors and
omissions of
officers and employees, "A-" by Fitch and "A-" by S&P, and
(iii) in the case of
any other insurance coverage provided by such insurance carrier,
"A-" by Fitch
and "A-" by S & P; provided, however, that (A) an insurance
carrier shall be
deemed to have the applicable claims-paying ability ratings set
forth above if
the obligations of such insurance carrier under the related
insurance policy are
guaranteed or backed in writing by an entity that has long-term
unsecured debt
obligations that are rated not lower than the ratings set forth
above or
claims-paying ability ratings that are not lower than the ratings
set forth
above; and (B) an insurance carrier shall be deemed to have the
applicable
claims-paying ability ratings set forth above if the Rating Agency
whose rating
requirement set forth in clause (i) or (ii), as applicable, of this
definition
has not been met has confirmed in writing that such insurance
carrier would not
result in an Adverse Rating Event with respect to any Class of
Rated
Certificates (and, if the insurance carrier is an issuer of an
insurance policy
relating to a Serviced Mortgage Loan Group or one or more Mortgaged
Properties
that secured such Serviced Mortgage Loan Group, as applicable, the
related
Serviced Mortgage Loan Group Controlling Party has
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confirmed in writing that such insurance carrier is acceptable to
such Serviced
Mortgage Loan Group Controlling Party), unless (with respect to
policies
maintained by Borrowers) a higher claims-paying ability rating is
required under
any of the Mortgage Loan Documents. In connection with insurance
coverage
related to one or more of the PCF Pooled Mortgage Loans or to the
obligations of
the applicable Master Servicer (or a Primary Servicer serving on
its behalf)
with respect to one or more PCF Pooled Mortgage Loan, insurance
carried through
Lloyd's of London shall be deemed to have been issued by an insurer
with the
Required Claims-Paying Ratings, so long as Lloyd's of London has a
financial
strength rating of not less than "A-" by each of S&P and A.M.
Best.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on
behalf of the
mortgagee representing: (i) reserves for repairs, replacements,
capital
improvements and/or environmental testing and remediation with
respect to the
related Mortgaged Property; (ii) reserves for tenant improvements
and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be
applied as a
Principal Prepayment on such Mortgage Loan or held as Additional
Collateral in
the event that certain leasing or other economic criteria in
respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the
Certificate
Administrator, any Vice President, any Trust Officer, any Assistant
Secretary or
any other officer of the Certificate Administrator customarily
performing
functions similar to those performed by any of the above designated
officers and
having direct responsibility for the administration of this
Agreement; and (b)
with respect to the Fiscal Agent or the Trustee, any Vice President
or Trust
Officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch
List,
the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet,
the CMSA Financial File, the CMSA Property File and the CMSA
Comparative
Financial Status Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, a single global
Certificate, or multiple
global Certificates collectively, registered in the name of the
Depository or
its nominee, in definitive, fully registered form without interest
coupons, each
of which Certificates bears a Qualified Institutional Buyer CUSIP
number and
does not bear a Regulation S Legend.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc. or its successor in interest. If
neither such rating
agency nor any successor remains in existence, "S&P" shall be
deemed to refer to
such other nationally recognized statistical rating agency or other
comparable
Person designated by the Depositor, notice of which designation
shall be given
to the other parties hereto, and specific ratings of Standard &
Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. herein
referenced shall
be deemed to refer to the equivalent ratings of the party so
designated.
References herein to "applicable rating category" (other than such
references to
"highest applicable rating category") shall, in the case of
S&P, be deemed to
refer to such applicable rating category of S&P, without regard
to any plus or
minus or other comparable rating qualification.
"Sarbanes-Oxley Certification": As defined in Section 8.15(b).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security
agreement, chattel mortgage or similar document or instrument
creating in favor
of the holder of such Mortgage a security interest in the personal
property
constituting security for repayment of such Mortgage Loan.
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"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other
than a
Non-Trust-Serviced Pooled Mortgage Loan (and any Non-Pooled
Mortgage Loan that
is related to such Non-Trust-Serviced Pooled Mortgage Loan).
"Serviced Mortgage Loan Group": Each group of mortgage loans (if
any)
that is part of a split loan structure that is principally serviced
and
administered under this Agreement as identified in the Preliminary
Statement
hereto.
"Serviced Mortgage Loan Group Controlling Party": In connection
with
the Muirwood Apartments Loan Group, the Muirwood Apartments
Controlling Party.
"Serviced Non-Pooled Mortgage Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split
loan structure
that is principally serviced and administered under this Agreement
as identified
in the Preliminary Statement hereto.
"Serviced Non-Pooled Mortgage Loan Noteholder": The holder of any
Serviced Non-Pooled Mortgage Loan.
"Serviced Non-Pooled Pari Passu Companion Loan": Each of the
mortgage
loans (if any), other than a Pooled Mortgage Loan, that is part of
a split loan
structure that is principally serviced and administered under this
Agreement, is
secured by the same Mortgage encumbering a Pooled Mortgage Loan and
is pari
passu in right of payment with that Pooled Mortgage Loan. The
Serviced
Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage
Loans" or part of
the Trust Fund, any REMIC Pool or any Grantor Trust Pool.
"Serviced Non-Pooled Pari Passu Companion Loan Noteholder": The
holder
of a Serviced Non-Pooled Pari Passu Companion Loan.
"Serviced Non-Pooled Subordinate Loan": Each of the mortgage loans
(if
any), other than a Pooled Mortgage Loan, that is part of a split
loan structure
that is principally serviced and administered under this Agreement,
is secured
by the same Mortgage encumbering a Pooled Mortgage Loan and is
subordinate in
right of payment with that Pooled Mortgage Loan. The Serviced
Non-Pooled
Subordinate Loans are not "Pooled Mortgage Loans" or part of the
Trust Fund, any
REMIC Pool or any Grantor Trust Pool.
"Serviced Non-Pooled Subordinate Noteholder": The holder of a
Serviced
Non-Pooled Subordinate Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan.
"Servicer Report Administrator": Wells Fargo Bank, National
Association as a Master Servicer (without regard to the final
sentence of the
definition of "Master Servicer") or any successor thereto appointed
as provided
herein.
"Servicer Report Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as
such and
payable to the Servicer Report Administrator pursuant to Section
8.05(a).
"Servicer Report Administrator Fee Rate": Five ten-thousands of one
percent (0.0005%) per annum.
"Servicing Account": The account or accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys'
fees and
expenses, incurred or to be incurred, as the context requires, by
the applicable
Master Servicer or the Special Servicer (or, if applicable, the
Trustee or the
Fiscal Agent) in connection with the servicing of a Serviced
Mortgage Loan (or,
in the limited circumstances set forth in Section 3.01(g), in
connection with
the
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servicing of a Non-Trust-Serviced Pooled Mortgage Loan) as to which
a default,
delinquency or other unanticipated event has occurred or is
imminent, or in
connection with the administration of any Administered REO
Property, including:
(1) any such costs and expenses associated with (a) compliance
with the obligations of the applicable Master Servicer and/or the
Special
Servicer set forth in Sections 2.03, 3.03(c) and 3.09, (b) the
preservation, insurance, restoration, protection and management of
either a
Mortgaged Property securing a Serviced Mortgage Loan or an
Administered REO
Property, including the cost of any "force placed" insurance policy
purchased by the applicable Master Servicer or the Special Servicer
to the
extent such cost is allocable to a particular Mortgaged Property
that the
applicable Master Servicer or Special Servicer is required to cause
to be
insured pursuant to Section 3.07(a), (c) obtaining any Insurance
Proceeds,
Condemnation Proceeds or Liquidation Proceeds in respect of any
such
Serviced Mortgage Loan or any Administered REO Property, (d) any
enforcement or judicial proceedings with respect to any such
Mortgage Loan,
including foreclosures and similar proceedings, (e) the operation,
management, maintenance and liquidation of any Administered REO
Property,
(f) obtaining any Appraisal required to be obtained hereunder, and
(g) UCC
filings (to the extent that the costs thereof are not reimbursed by
the
related Borrower), and
(2) the reasonable and direct out-of-pocket travel expenses
incurred by the Special Servicer in connection with performing
inspections
pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, "Servicing
Advances"
shall not include (A) allocable overhead of a Master Servicer, the
Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, such
as costs for
office space, office equipment, supplies and related expenses,
employee salaries
and related expenses and similar internal costs and expenses, (B)
costs incurred
by or on behalf of any such party hereto or any Affiliate thereof
in connection
with its purchase of any Mortgage Loan or REO Property pursuant to
any provision
of this Agreement or any intercreditor agreement or similar
agreement or (C)
costs or expenses expressly required under this Agreement to be
borne by a
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent.
"Servicing Advances" shall also include, however, any other
expenditure which is expressly designated as a "Servicing Advance"
herein. All
Emergency Advances made by a Master Servicer at the direction of
the Special
Servicer hereunder shall be considered "Servicing Advances" for the
purposes
hereof. In addition, all amounts advanced under Section 3.19(g) in
respect of
special assessments against a portion of the Mortgaged Property
securing the
Pooled Mortgage Loan known as Crocker Park to be paid to the
Toledo-Lucas County
Port Authority or the City of Westlake, as applicable, shall be
considered
"Servicing Advances" for purposes hereof.
"Servicing File": Any documents (other than documents required to
be
part of the related Mortgage File, but including originals or
copies of all
management agreements which are not covered by clause (xvii) of the
definition
of "Mortgage File") that are in the possession or under the control
of, or that
are required (pursuant to the applicable Pooled Mortgage Loan
Purchase
Agreement, this Agreement or otherwise) to be delivered and
actually have been
delivered to, as the context may require, the applicable Master
Servicer or the
Special Servicer and relating to the origination and servicing of
any Mortgage
Loan or the administration of any REO Property and reasonably
necessary for the
ongoing administration and/or servicing of the applicable Mortgage
Loan,
including any documents delivered by a Pooled Mortgage Loan Seller
as described
in clause (i) of Section 2.01(f).
"Servicing Officer": Any officer or employee of a Master Servicer
or
the Special Servicer involved in, or responsible for, the
administration and
servicing of Mortgage Loans, whose name and specimen signature
appear on a list
of servicing officers furnished by such party to the Certificate
Administrator,
the Trustee and the Depositor on the Closing Date, as such list may
thereafter
be amended from time to time by such Master Servicer or the Special
Servicer, as
the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
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"Servicing Return Date": With respect to any Corrected Mortgage
Loan,
the date that servicing thereof is returned by the Special Servicer
to the
applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicers
and
each of the Special Servicer, to service and administer the
Serviced Mortgage
Loans and any Administered REO Properties that such party is
obligated to
service and administer pursuant to this Agreement in the best
interests and for
the benefit of the Certificateholders (or, in the case of a
Serviced Mortgage
Loan Group, for the benefit of the Certificateholders and the
related Serviced
Non-Pooled Mortgage Loan Noteholders) (as determined by the
applicable Master
Servicer or the Special Servicer, as the case may be, in its good
faith and
reasonable judgment), as a collective whole (it being understood,
in the case of
the Serviced Mortgage Loan Groups containing Non-Pooled Subordinate
Loans, that
the interests of the Non-Pooled Subordinate Noteholders are junior
promissory
notes, subject to the terms and conditions of the related Mortgage
Loan Group
Intercreditor Agreement), in accordance with applicable law and the
terms of
this Agreement, and the respective Mortgage Loans (including, with
respect to a
Serviced Mortgage Loan Group, the related Mortgage Loan Group
Intercreditor
Agreement, as applicable) and, to the extent consistent with the
foregoing, in
accordance with the following standards:
(a) with the same care, skill, prudence and diligence as it
services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself,
whichever is
the higher standard with respect to mortgage loans and REO
properties that
are comparable to those for which it is responsible hereunder,
giving due
consideration to customary and usual standards of practice utilized
by
prudent institutional commercial mortgage loan servicers under
comparable
circumstances;
(b) with a view to: (i) in the case of a Master Servicer, the
timely collection of all scheduled payments of principal and
interest,
including Balloon Payments, under the Serviced Mortgage Loans and
the full
collection of all Prepayment Premiums and Yield Maintenance Charges
that
may become payable under the Serviced Mortgage Loans, and (ii) in
the case
of the Special Servicer and any Serviced Mortgage Loan that is (A)
a
Specially Serviced Mortgage Loan or (B) a Serviced Mortgage Loan as
to
which the related Mortgaged Property has become an Administered REO
Property, the maximization of recovery on such Mortgage Loan to the
Certificateholders (or, in the case of a Serviced Mortgage Loan
Group, to
the Certificateholders and the related Serviced Non-Pooled Mortgage
Loan
Noteholders, as applicable), as a collective whole (it being
understood, in
the case of the Serviced Mortgage Loan Groups containing Non-Pooled
Subordinate Loans, that the interests of the Non-Pooled Subordinate
Noteholders are junior promissory notes, subject to the terms and
conditions of the related Mortgage Loan Group Intercreditor
Agreement), of
principal and interest, including Balloon Payments, on a present
value
basis (the relevant discounting of anticipated collections that
will be
distributable to the Certificateholders (or, in the case of a
Serviced
Mortgage Loan Group, to the Certificateholders and the related
Serviced
Non-Pooled Mortgage Loan Noteholders, as applicable), as a
collective
whole, to be performed at a rate determined by the Special Servicer
but in
no event less than the related Net Mortgage Rate (or, in the case
of a
Serviced Mortgage Loan Group, less than the weighted average of the
Net
Mortgage Rates for the Mortgage Loans in such Serviced Mortgage
Loan
Group)); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or the Special Servicer, as the case may
be, or
any of its Affiliates may have with a related Borrower, a Mortgage
Loan
Seller or any other party to this Agreement, (ii) the ownership of
any
Certificate or any interest in any other Mortgage Loan in a
Mortgage Loan
Group by the applicable Master Servicer or the Special Servicer, as
the
case may be, or any of its Affiliates, (iii) the obligation of the
applicable Master Servicer to make Advances or otherwise to incur
servicing
expenses with respect to any Serviced Mortgage Loan or Administered
REO
Property (or, if applicable, to make P&I Advances or (to the
limited extent
set forth herein) Servicing Advances with respect to a
Non-Trust-Serviced
Pooled Mortgage Loan), (iv) the obligation of the Special Servicer
to make,
or direct the applicable Master Servicer to make, Servicing
Advances
(including Emergency Advances) or otherwise to incur servicing
expenses
with respect to any Serviced Mortgage Loan or Administered REO
Property,
(v) the right of the applicable Master Servicer or the Special
Servicer, as
the case may be, or any of its Affiliates to receive reimbursement
of
costs, or the sufficiency of any compensation payable to it,
hereunder or
with respect to any particular transaction, (vi) any ownership,
servicing
and/or management by the applicable Master Servicer or
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the Special Servicer, as the case may be, or any of its Affiliates,
of any
other mortgage loans or real property, (vii) the ownership by the
applicable Master Servicer or the Special Servicer, as the case may
be, or
any of its Affiliates of any other debt owed by, or secured by
ownership
interests in, any of the Borrowers or any Affiliate of a Borrower,
and
(viii) the obligations of the applicable Master Servicer or the
Special
Servicer, as the case may be, or any of its Affiliates to
repurchase any
Pooled Mortgage Loan from the Trust Fund, or to indemnify the Trust
Fund,
in any event as a result of a Material Breach or a Material
Document
Defect;
provided that the foregoing standards shall apply with respect to a
Non-Trust-Serviced Pooled Mortgage Loan and any related REO
Property only to the
extent that the applicable Master Servicer or the Special Servicer
has any
express duties or rights to grant consent with respect thereto
pursuant to this
Agreement.
"Servicing Transfer Event": With respect to any Serviced Mortgage
Loan, the occurrence of any of the events described in clauses (a)
through (h)
of the definition of "Specially Serviced Mortgage Loan".
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
"Special Servicer": ARCap Servicing, Inc. (or its successor in
interest), in its capacity as special servicer with respect to the
Mortgage Pool
and any related REO Properties hereunder, or any successor special
servicer with
respect to the Mortgage Pool and any related REO Properties
appointed as
provided herein.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO
Property related to
a Non-Trust-Serviced Pooled Mortgage Loan), the fee designated as
such and
payable to the Special Servicer pursuant to the first paragraph of
Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO
Property related to
a Non-Trust-Serviced Pooled Mortgage Loan), 0.25% per annum.
"Specially Designated Defaulted Pooled Mortgage Loan": A Serviced
Pooled Mortgage Loan that both (A) is a Specially Serviced Mortgage
Loan and (B)
either (i) is delinquent 120 days or more with respect to any
Balloon Payment or
60 days or more with respect to any other Monthly Payment, with
such delinquency
to be determined without giving effect to any grace period
permitted by the
related Mortgage or Mortgage Note and without regard to any
acceleration of
payments under the related Mortgage and Mortgage Note, or (ii) is a
Pooled
Mortgage Loan as to which the amounts due thereunder have been
accelerated
following any other material default.
"Specially Designated Mortgage Loan Documents": With respect to any
Pooled Mortgage Loan, subject to Section 1.04, the following
documents on a
collective basis:
(i) the original executed Mortgage Note or alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case (unless
the particular item has been sent for recording but has not been
returned
from the applicable recording office) with evidence of recording
indicated
thereon; provided that if such original Mortgage cannot be
delivered with
evidence of recording thereon on or prior to the 90th day following
the
Closing Date because of a delay caused by the public recording
office where
such original Mortgage has been delivered for recordation or
because such
original Mortgage has been lost, there shall be delivered to the
Trustee or
a Custodian on its behalf a true and correct copy of such Mortgage,
together with (A) in the case of a delay caused by the public
recording
office, an Officer's Certificate of the applicable Pooled Mortgage
Loan
Seller stating that such original Mortgage has been sent to the
appropriate
public recording official for recordation or (B) in the case of an
original
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such Mortgage is recorded
that
such copy is a true and complete copy of the original recorded
Mortgage;
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(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in
each case
(unless the particular item has been sent for recording but has not
been
returned from the applicable recorder) with evidence of recording
thereon;
(iv) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or,
if the policy has not yet been issued, an original or copy of a
written
commitment "marked-up" at the closing of such Mortgage Loan,
interim binder
or the pro forma title insurance policy, in each case evidencing a
binding
commitment to issue such policy);
(v) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the
original
or a copy of the Ground Lease relating to such Mortgage Loan;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, the original of any Letter of Credit evidencing or
constituting
Additional Collateral (provided that the originals of any such
Letter of
Credit may be delivered to the applicable Master Servicer (or a
Primary
Servicer on its behalf) with a copy to be contained in the Mortgage
File);
and
(vii) if the related Mortgaged Property is a hospitality property
that is subject to a franchise or similar arrangement, (a) an
original or a
copy of any franchise or similar agreement and (b) either (i) a
signed copy
of the comfort letter delivered by the franchisor or similar person
for the
benefit of the holder of the Mortgage Loan in connection with the
Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage
Loan,
together with such instrument(s) of notice or transfer (if any) as
are
necessary to transfer or assign to the Trust or the Trustee the
benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered
by the
franchisor or similar person for the benefit of the holder of the
Mortgage
Loan in connection with such origination or acquisition of the
Mortgage
Loan, together with a signed copy or a fax copy of a new comfort
letter (in
substantially the same form and substance as the comfort letter
delivered
in connection with such origination or acquisition) by the
franchisor or
similar person for the benefit of the Trust or the Trustee (and, if
a fax
copy of a new comfort letter is delivered, then the original copy
shall be
included in the "Mortgage File" promptly following receipt thereof
by the
related Pooled Mortgage Loan Seller).
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as
to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due any Balloon
Payment, and the Borrower has not delivered to the applicable
Master
Servicer, on or prior to the due date of such Balloon Payment, a
written
refinancing commitment from an acceptable lender and reasonably
satisfactory in form and substance to the applicable Master
Servicer which
provides that such refinancing will occur within 120 days after the
date on
which such Balloon Payment will become due (provided that such
Mortgage
Loan shall immediately become a Specially Serviced Mortgage Loan if
either
(x) such refinancing does not occur before the expiration of the
time
period for refinancing specified in such binding commitment or (y)
the
applicable Master Servicer is required to make a P&I Advance in
respect of
such Mortgage Loan (or, in the case of any Serviced Non-Pooled
Mortgage
Loan, in respect of the Pooled Mortgage Loan included in the same
Serviced
Mortgage Loan Group) at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment (other
than a
Balloon Payment) required under the related Mortgage Note or the
related
Mortgage, which failure has continued unremedied for sixty (60)
days; or
(c) the applicable Master Servicer determines (in accordance with
the Servicing Standard) that a default in making any Monthly
Payment (other
than a Balloon Payment) or any other material payment (other than a
Balloon
Payment) required under the related Mortgage Note or the related
Mortgage
is likely to occur in the foreseeable future, and such default is
likely to
remain unremedied for at least sixty (60) days beyond
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the date on which the subject payment will become due; or the
applicable
Master Servicer determines (in accordance with the Servicing
Standard) that
a default in making a Balloon Payment is likely to occur in the
foreseeable
future, and such default is likely to remain unremedied for at
least sixty
(60) days beyond the date on which such Balloon Payment will become
due
(or, if the Borrower has delivered a written refinancing commitment
from an
acceptable lender and reasonably satisfactory in form and substance
to the
applicable Master Servicer which provides that such refinancing
will occur
within 120 days following the date on which such Balloon Payment
will
become due, such Master Servicer determines (in accordance with the
Servicing Standard) that (A) the Borrower is likely not to make one
or more
Assumed Monthly Payments prior to such a refinancing or (B) such
refinancing is not likely to occur within 120 days following the
date on
which such Balloon Payment will become due); or
(d) there shall have occurred a default (including, in the
applicable Master Servicer's or the Special Servicer's judgment,
the
failure of the related Borrower to maintain any insurance required
to be
maintained pursuant to the related Mortgage Loan Documents, unless
such
default has been waived in accordance with Section 3.07 or Section
3.20
hereof) under the related Mortgage Loan Documents, other than as
described
in clause (a), (b) or (c) above, that may, in the applicable Master
Servicer's or the Special Servicer's good faith and reasonable
judgment,
materially impair the value of the related Mortgaged Property as
security
for such Mortgage Loan or otherwise materially and adversely affect
the
interests of Certificateholders (or, in the case of any Serviced
Non-Pooled
Mortgage Loan, the interests of the related Serviced Non-Pooled
Mortgage
Loan Noteholder(s)), which default has continued unremedied for the
applicable cure period under the terms of such Mortgage Loan (or,
if no
cure period is specified, 60 days); or
(e) 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 or receiver or liquidator
in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Borrower and such
decree or
order shall have remained in force undischarged or unstayed for a
period of
60 days; or
(f) the related Borrower shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment
of debt, marshalling of assets and liabilities or similar
proceedings of or
relating to such Borrower or of or relating to all or substantially
all of
its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a
petition
to take advantage of any applicable insolvency or reorganization
statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the applicable Master Servicer or the Special Servicer shall
have received notice of the commencement of foreclosure or similar
proceedings with respect to the related Mortgaged Property.
provided that a Serviced Mortgage Loan will cease to be a Specially
Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of
such Mortgage
Loan, or at such time as such of the following as are applicable
occur with
respect to the circumstances identified above that caused such
Mortgage Loan to
be characterized as a Specially Serviced Mortgage Loan (and
provided that no
other Servicing Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a)
and (b) above, the related Borrower has made three consecutive full
and
timely Monthly Payments under the terms of such Mortgage Loan (as
such
terms may be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Borrower or by reason of a
modification,
waiver or amendment granted or agreed to by the applicable Master
Servicer
or the Special Servicer pursuant to Section 3.20);
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(x) with respect to the circumstances described in clauses (c),
(e), (f), and (g) above, such circumstances cease to exist in the
good
faith reasonable judgment, exercised in accordance with the
Servicing
Standard, of the Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, such default is cured in the good faith reasonable judgment,
exercised in accordance with the Servicing Standard, of the Special
Servicer; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
Notwithstanding the foregoing, if a Servicing Transfer Event exists
as
contemplated above in this definition for any Mortgage Loan in a
Serviced
Mortgage Loan Group, it shall be deemed to exist for the other
Mortgage Loans in
such Serviced Mortgage Loan Group.
"Specially Serviced Pooled Mortgage Loan": A Serviced Pooled
Mortgage
Loan that constitutes a Specially Serviced Mortgage Loan.
Notwithstanding
anything herein to the contrary, in no event shall a
Non-Trust-Serviced Pooled
Mortgage Loan constitute a Specially Serviced Pooled Mortgage Loan
hereunder.
"Startup Day": With respect to each REMIC Pool, the day designated
as
such in Section 2.13(a) (in the case of REMIC I), Section 2.15(a)
(in the case
of REMIC II) or Section 2.17(a) (in the case of REMIC III), as
applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the related Mortgage Note (as in effect on the
Closing Date
or, in the case of a Replacement Pooled Mortgage Loan, on the
related date of
substitution) on which the last payment of principal is due and
payable under
the terms of such Mortgage Note, without regard to any change in or
modification
of such terms in connection with a bankruptcy or similar proceeding
involving
the related Borrower or a modification, waiver or amendment of such
Mortgage
Loan granted or agreed to by the applicable Master Servicer or
Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced
Pooled
Mortgage Loan, by the related Non-Trust Master Servicer or the
related Non-Trust
Special Servicer pursuant to the related Non-Trust Servicing
Agreement) and, in
the case of an ARD Mortgage Loan, without regard to its Anticipated
Repayment
Date.
"Stated Principal Balance": With respect to any Pooled Mortgage
Loan
(and any successor REO Pooled Mortgage Loan with respect thereto),
a principal
balance which (a) initially shall equal the unpaid principal
balance thereof as
of the related Cut-off Date or, in the case of any Replacement
Pooled Mortgage
Loan, as of the related date of substitution, in any event after
application of
all payments of principal due thereon on or before such date,
whether or not
received, and (b) shall be permanently reduced on each subsequent
Distribution
Date (to not less than zero) by the sum of:
(i) that portion, if any, of the Unadjusted Principal
Distribution Amount for such Distribution Date that is attributable
to such
Pooled Mortgage Loan (or successor REO Pooled Mortgage Loan); and
(ii) the principal portion of any Realized Loss incurred in
respect of such Pooled Mortgage Loan (or successor REO Pooled
Mortgage
Loan) during the related Collection Period;
provided that, if a Liquidation Event occurs in respect of any
Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage
Loan or of
the related REO Pooled Mortgage Loan, as the case may be, shall be
zero
commencing as of the close of business on the Distribution Date
next following
the Collection Period in which such Liquidation Event occurred.
"Subordinate Note Custodial Account": As defined in Section
3.04(f).
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"Sub-Servicer": Any Person with which a Master Servicer or the
Special
Servicer has entered into a Sub-Servicing Agreement in accordance
with the terms
hereof.
"Sub-Servicing Agreement": The written contract between a Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage
Loans as
provided in Section 3.22. For the avoidance of doubt, the Primary
Servicing
Agreement does not constitute a Sub-Servicing Agreement.
"Substitution Shortfall Amount": In connection with the
substitution
of one or more Replacement Pooled Mortgage Loans for any Defective
Pooled
Mortgage Loan, the amount, if any, by which the Purchase Price for
such
Defective Pooled Mortgage Loan (calculated as if it were to be
repurchased,
instead of replaced, on the relevant date of substitution), exceeds
the initial
Stated Principal Balance or the initial aggregate Stated Principal
Balance, as
the case may be, of such Replacement Pooled Mortgage Loan(s) as of
the date of
substitution.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": WFB, in its capacity as tax administrator
hereunder, or any successor tax administrator appointed as herein
provided.
"Tax Administrator Fee": The portion of the Trustee Fee payable to
the
Tax Administrator in an amount agreed to by the Trustee and the Tax
Administrator.
"Tax Matters Person": With respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the
manner provided
under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury
Regulations Section 301.6231(a)(7)-1T, which Person shall, pursuant
to Section
10.01(b), be the Holder of Certificates evidencing the largest
Percentage
Interest in the Class R Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to
be filed on
behalf of each REMIC Pool due to its classification as a REMIC
under the REMIC
Provisions, together with any and all other information, reports or
returns that
may be required to be furnished to the Certificateholders or filed
with the IRS
under any applicable provisions of federal tax law or any other
governmental
taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01(a).
"The Westin Copley Place Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of October 19, 2005, by and among
WFB, as
initial holder of note A-1, and WFB, as initial holder of loan A-2.
"The Westin Copley Place Loan Group": The Westin Copley Place
Pooled
Mortgage Loan and The Westin Copley Place Non-Pooled Pari Passu
Companion Loan,
together.
"The Westin Copley Place Mortgaged Property": The Mortgaged
Property
identified on the Pooled Mortgage Loan Schedule as "Westin Copley
Place".
"The Westin Copley Place Non-Pooled Pari Passu Companion Loan": The
mortgage loan, with original principal balance in the amount of
$105,000,000
that is secured by the same Mortgage encumbering The Westin Copley
Place
Mortgaged Property as The Westin Copley Place Pooled Mortgage Loan
and is pari
passu in right of payment with The Westin Copley Place Pooled
Mortgage Loan. The
Westin Copley Place Non-Pooled Pari Passu Companion Loan is not a
"Pooled
Mortgage Loan" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust
Pool.
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"The Westin Copley Place Pooled Mortgage Loan": The Pooled Mortgage
Loan in the original principal amount of $105,000,000 secured by
The Westin
Copley Place Mortgaged Property.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership
Interest in a Certificate.
"Trust": The trust created hereby.
"Trust Fund": Collectively, all of the assets of all the REMIC
Pools
and all the Grantor Trust Pools.
"Trustee": LaSalle, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Pooled Mortgage Loan and REO
Pooled Mortgage Loan, the fee designated as such and payable to the
Trustee
pursuant to Section 8.05(a). The Trustee Fee includes the
Certificate
Administrator Fee and the Tax Administrator Fee.
"Trustee Fee Rate": Ninety-five hundred-thousandths of one percent
(0.00095%) per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed, or to be
filed, pursuant to the UCC.
"Unadjusted Principal Distribution Amount": As defined in the
definition of "Principal Distribution Amount".
"Uncertificated Accrued Interest": As defined in Section 2.13(g)
with
respect to any REMIC I Regular Interest for any Interest Accrual
Period and in
Section 2.15(g) with respect to any REMIC II Regular Interest for
any Interest
Accrual Period.
"Uncertificated Distributable Interest": As defined in Section
2.13(g)
with respect to any REMIC I Regular Interest for any Distribution
Date and in
Section 2.15(g) with respect to any REMIC II Regular Interest for
any
Distribution Date.
"Uncertificated Principal Balance": The principal balance
outstanding
from time to time of any REMIC I Regular Interest (calculated in
accordance with
Section 2.13(e) hereof) or any REMIC II Regular Interest
(calculated in
accordance with Section 2.15(e) hereof).
"Underwriter Exemption": PTE 90-30 issued to Bear, Stearns &
Co. Inc.
and PTE 90-24 issued to Morgan Stanley & Co. Incorporated, each
as amended by
PTE 97-34, PTE 2000-58 and PTE 2002-41 and as may be subsequently
amended
following the Closing Date.
"Underwriters": Bear, Stearns & Co. Inc. and Morgan Stanley
& Co.
Incorporated.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
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"United States Tax Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in, or
under the laws of, the United States, any State thereof or the
District of
Columbia, an estate whose income from sources without the United
States is
includible in gross income for United States federal income tax
purposes
regardless of its source or a trust if a court within the United
States is able
to exercise primary supervision over the administration of the
trust and one or
more United States Tax Persons have the authority to control all
substantial
decisions of the trust, all within the meaning of Section
7701(a)(30) of the
Code (or, to the extent provided in the applicable Treasury
Regulations, certain
trusts in existence on August 20, 1996 that elect to be treated as
United States
Tax Persons).
"Unliquidated Advance": Any Advance previously made by a party
hereto
that has been previously reimbursed, as between the Person that
made the Advance
hereunder, on the one hand, and the Trust Fund, on the other, as
part of a
Workout-Delayed Reimbursement Amount pursuant to subsection (iii)
of Section
3.05(a)(II) but that has not been recovered from the Borrower or
otherwise from
collections on or the proceeds of the Mortgage Loan or REO Property
in respect
of which the Advance was made.
"Unrestricted Servicer Reports": Each of the CMSA Loan Setup File,
the
CMSA Loan Periodic Update File, the CMSA Delinquent Loan Status
Report, the CMSA
Historical Loan Modification Report, the CMSA Historical
Liquidation Report, the
CMSA REO Status Report, the CMSA Loan Level Reserve Report, the
CMSA
Reconciliation of Funds Report and the Realized Loss Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0%
of the
Voting Rights shall be allocated among all the Holders of the
various Classes of
Principal Balance Certificates in proportion to the respective
Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be
allocated
between the Holders of the Class X-1 Certificates and the Holders
of the Class
X-2 Certificates in proportion to the respective Class Notional
Amounts of such
Classes. Voting Rights allocated to a particular Class of
Certificateholders
shall be allocated among such Certificateholders in proportion to
the respective
Percentage Interests evidenced by their respective Certificates. No
Voting
Rights shall be allocated to the Class R or Class V
Certificateholders.
"Weighted Average REMIC I Remittance Rate": As defined in Section
2.15(f).
"WFB": Wells Fargo Bank, National Association, or its successor in
interest.
"WFB Pooled Mortgage Loan": Any Mortgage Loan that is either an
Original WFB Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was
delivered under the WFB Pooled Mortgage Loan Purchase Agreement in
substitution
for an Original WFB Pooled Mortgage Loan.
"WFB Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of December 9, 2005,
between WFB as
seller and the Depositor as purchaser.
"Within Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable,
in respect
of any particular Pooled Mortgage Loan, the status attributable to
that Mortgage
Loan by reason of, if applicable, the fact that, although such
Monthly Payment
or Assumed Monthly Payment has not been received, the Due Date,
together with
any applicable grace period, for such Monthly Payment or Assumed
Monthly Payment
has not passed.
"Workout-Delayed Reimbursement Amount": As defined in subsection
(II)(i) of Section 3.05(a).
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"Workout Fee": The fee designated as such in, and payable to the
Special Servicer in connection with Corrected Mortgage Loans
pursuant to, the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.0%.
