EXHIBIT 4
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BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-TOP18
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1
Definitions....................................................6
Section 1.2 Calculations Respecting
Mortgage Loans........................71
Section 1.3 Calculations Respecting
Accrued Interest......................72
Section 1.4
Interpretation................................................72
Section 1.5 ARD
Loans.....................................................72
Section 1.6 Certain Matters with respect
to Loan Pairs and A/B
Mortgage
Loans................................................73
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage
Loans..................................75
Section 2.2 Acceptance by
Trustee.........................................78
Section 2.3 Sellers' Repurchase of
Mortgage Loans for Material
Document Defects and Material Breaches of
Representations and
Warranties................................80
Section 2.4 Representations and
Warranties................................87
Section 2.5 Conveyance of
Interests.......................................88
Section 2.6 Certain Matters Relating to
Non-Serviced Mortgage
Loans.........................................................88
ARTICLE III
THE CERTIFICATES
Section 3.1 The
Certificates..............................................88
Section 3.2
Registration..................................................89
Section 3.3 Transfer and Exchange of
Certificates.........................90
Section 3.4 Mutilated, Destroyed, Lost
or Stolen Certificates.............96
Section 3.5 Persons Deemed
Owners.........................................96
Section 3.6 Access to List of
Certificateholders' Names and
Addresses.....................................................96
Section 3.7 Book-Entry
Certificates.......................................97
Section 3.8 Notices to Clearing
Agency...................................100
Section 3.9 Definitive
Certificates......................................100
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ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master
Servicer..............................101
Section 4.1A P&I Advances with Respect to
Non-Serviced Mortgage
Loans and Serviced Pari Passu Mortgage
Loans.................102
Section 4.2 Servicing
Advances...........................................103
Section 4.3 Advances by the Trustee and
the Fiscal Agent.................104
Section 4.4 Evidence of
Nonrecoverability................................104
Section 4.5 Interest on Advances;
Calculation of Outstanding
Advances with Respect to a Mortgage
Loan.....................106
Section 4.6 Reimbursement of Advances
and Advance Interest...............106
Section 4.7 Fiscal Agent Termination
Event...............................108
Section 4.8 Procedure Upon Termination
Event.............................109
Section 4.9 Merger or Consolidation of
Fiscal Agent......................109
Section 4.10 Limitation on Liability of the
Fiscal Agent and
Others.......................................................110
Section 4.11 Indemnification of Fiscal
Agent..............................110
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1
Collections..................................................111
Section 5.2 Application of Funds in the
Certificate Account and
Interest Reserve
Account.....................................115
Section 5.3 Distribution Account,
Reserve Account and Floating
Rate
Account.................................................125
Section 5.4 Paying Agent
Reports.........................................127
Section 5.5 Paying Agent Tax
Reports.....................................130
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions
Generally......................................130
Section 6.2 REMIC
I......................................................131
Section 6.3 REMIC
II.....................................................131
Section 6.4
Reserved.....................................................132
Section 6.5 REMIC
III....................................................132
Section 6.6 Allocation of Realized
Losses, Expense Losses and
Shortfalls Due to
Nonrecoverability..........................138
Section 6.7 Net Aggregate Prepayment
Interest Shortfalls.................140
Section 6.8 Adjustment of Servicing
Fees.................................140
Section 6.9 Appraisal
Reductions.........................................140
Section 6.10 Compliance with Withholding
Requirements.....................141
Section 6.11 Prepayment
Premiums..........................................141
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Section 6.12 Other
Distributions..........................................142
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL
AGENT, THE PAYING AGENT AND THE LUXEMBOURG
PAYING AGENT
Section 7.1 Duties of the Trustee, the
Fiscal Agent and the
Paying
Agent.................................................144
Section 7.2 Certain Matters Affecting
the Trustee, the Fiscal
Agent and the Paying
Agent...................................146
Section 7.3 The Trustee, the Fiscal
Agent and the Paying Agent
Not Liable for Certificates or Interests or
Mortgage
Loans...............................................148
Section 7.4 The Trustee, the Fiscal
Agent and the Paying Agent
May Own
Certificates.........................................149
Section 7.5 Eligibility Requirements for
the Trustee, the
Fiscal Agent and the Paying
Agent............................149
Section 7.6 Resignation and Removal of
the Trustee, the Fiscal
Agent or the Paying
Agent....................................150
Section 7.7 Successor Trustee, Fiscal
Agent or Paying Agent..............152
Section 7.8 Merger or Consolidation of
Trustee, Fiscal Agent or
Paying
Agent.................................................153
Section 7.9 Appointment of Co-Trustee,
Separate Trustee, Agents
or
Custodian.................................................153
Section 7.10 Authenticating
Agents........................................155
Section 7.11 Indemnification of Trustee, the
Fiscal Agent and
the Paying
Agent.............................................156
Section 7.12 Fees and Expenses of Trustee, the
Fiscal Agent and
the Paying
Agent.............................................158
Section 7.13 Collection of
Moneys.........................................158
Section 7.14 Trustee To Act; Appointment of
Successor.....................158
Section 7.15 Notification to
Holders......................................161
Section 7.16 Representations and Warranties of
the Trustee, the
Fiscal Agent and the Paying
Agent............................161
Section 7.17 Fidelity Bond and Errors and
Omissions Insurance
Policy Maintained by the Trustee, the Fiscal Agent
and the Paying
Agent.........................................163
Section 7.18 Appointment of Luxembourg Paying
Agent;
Notification to
Certificateholders...........................164
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard;
Servicing Duties.........................165
Section 8.2 Fidelity Bond and Errors and
Omissions Insurance
Policy Maintained by the Master
Servicer.....................167
Section 8.3 Master Servicer's General
Power and Duties...................167
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Section 8.4 Primary Servicing and
Sub-Servicing..........................174
Section 8.5 Servicers May Own
Certificates...............................176
Section 8.6 Maintenance of Hazard
Insurance, Other Insurance,
Taxes and
Other..............................................176
Section 8.7 Enforcement of Due-On-Sale
Clauses; Assumption
Agreements; Due-On-Encumbrance
Clause........................179
Section 8.8 Trustee to Cooperate;
Release of Trustee Mortgage
Files........................................................183
Section 8.9 Documents, Records and Funds
in Possession of
Master Servicer to be Held for the Trustee for the
Benefit of the
Certificateholders............................184
Section 8.10 Servicing
Compensation.......................................185
Section 8.11 Master Servicer Reports; Account
Statements..................186
Section 8.12 Annual Statement as to
Compliance............................188
Section 8.13 Annual Independent Public
Accountants' Servicing
Report.......................................................188
Section 8.14 CMSA Operating Statement Analysis
Reports Regarding
the Mortgaged
Properties.....................................189
Section 8.15 Other Available Information and
Certain Rights of
the Master
Servicer..........................................190
Section 8.16 Rule 144A
Information........................................192
Section 8.17
Inspections..................................................193
Section 8.18 Modifications, Waivers,
Amendments, Extensions and
Consents.....................................................193
Section 8.19 Specially Serviced Mortgage
Loans............................196
Section 8.20 Representations, Warranties and
Covenants of the
Master
Servicer..............................................197
Section 8.21 Merger or
Consolidation......................................198
Section 8.22 Resignation of Master
Servicer...............................198
Section 8.23 Assignment or Delegation of Duties
by Master
Servicer.....................................................199
Section 8.24 Limitation on Liability of the
Master Servicer and
Others.......................................................199
Section 8.25 Indemnification; Third-Party
Claims..........................202
Section 8.26 Exchange Act
Reporting.......................................205
Section 8.27 Compliance with REMIC Provisions
and Grantor Trust
Provisions...................................................207
Section 8.28
Termination..................................................207
Section 8.29 Procedure Upon
Termination...................................210
Section 8.30 Operating Adviser Contact with
Master Servicer and
Special
Servicer.............................................212
Section 8.31 Certain Matters with Respect to
the Finisar
Portfolio Mortgage Loan and the Circle K Portfolio
Pod Mortgage
Loans...........................................212
Section 8.32 Swap
Contract................................................213
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ARTICLE IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL
SERVICER
Section 9.1 Duties of Special
Servicer...................................214
Section 9.2 Fidelity Bond and Errors and
Omissions Insurance
Policy of Special
Servicer...................................216
Section 9.3
Sub-Servicers................................................216
Section 9.4 Special Servicer General
Powers and Duties...................217
Section 9.5 "Due-on-Sale" Clauses;
Assignment and Assumption
Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance
Clauses...................220
Section 9.6 Release of Mortgage
Files....................................225
Section 9.7 Documents, Records and Funds
in Possession of
Special Servicer To Be Held for the
Trustee..................225
Section 9.8 Representations, Warranties
and Covenants of the
Special
Servicer.............................................226
Section 9.9 Standard Hazard, Flood and
Comprehensive General
Liability Insurance
Policies.................................228
Section 9.10 Presentment of Claims and
Collection of Proceeds.............230
Section 9.11 Compensation to the Special
Servicer.........................230
Section 9.12 Realization Upon Defaulted
Mortgage Loans....................231
Section 9.13
Foreclosure..................................................233
Section 9.14 Operation of REO
Property....................................233
Section 9.15 Sale of REO
Property.........................................237
Section 9.16 Realization on Collateral
Security...........................238
Section 9.17
Reserved.....................................................238
Section 9.18 Annual Officer's Certificate as to
Compliance................238
Section 9.19 Annual Independent Accountants'
Servicing Report.............239
Section 9.20 Merger or
Consolidation......................................239
Section 9.21 Resignation of Special
Servicer..............................239
Section 9.22 Assignment or Delegation of Duties
by Special
Servicer.....................................................240
Section 9.23 Limitation on Liability of the
Special Servicer and
Others.......................................................241
Section 9.24 Indemnification; Third-Party
Claims..........................243
Section 9.25
Reserved.....................................................245
Section 9.26 Special Servicer May Own
Certificates........................245
Section 9.27 Tax
Reporting................................................245
Section 9.28 Application of Funds
Received................................245
Section 9.29 Compliance with REMIC Provisions
and Grantor Trust
Provisions...................................................245
Section 9.30
Termination..................................................246
Section 9.31 Procedure Upon
Termination...................................249
Section 9.32 Certain Special Servicer
Reports.............................251
Section 9.33 Special Servicer to Cooperate with
the Master
Servicer and Paying
Agent....................................254
Section 9.34
Reserved.....................................................255
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Section 9.35
Reserved.....................................................256
Section 9.36 Sale of Defaulted Mortgage
Loans.............................256
Section 9.37 Operating Adviser;
Elections.................................259
Section 9.38 Limitation on Liability of
Operating Adviser.................260
Section 9.39 Duties of Operating
Adviser..................................260
Section 9.40 Rights of the Holder of a B
Note.............................263
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon
Repurchase or Liquidation
of All Mortgage
Loans........................................264
Section 10.2 Procedure Upon Termination of
Trust..........................265
Section 10.3 Additional Trust Termination
Requirements....................266
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of
Holders..............................267
Section 11.2 Access to List of
Holders....................................268
Section 11.3 Acts of Holders of
Certificates..............................269
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC
Administration.........................................270
Section 12.2 Prohibited Transactions and
Activities.......................275
Section 12.3 Modifications of Mortgage
Loans..............................275
Section 12.4 Liability with Respect to Certain
Taxes and Loss of
REMIC
Status.................................................275
Section 12.5 Class A-4FL Grantor Trust and
Class P Grantor Trust..........276
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of
Agreement..................................277
Section 13.2 Entire
Agreement.............................................277
Section 13.3
Amendment....................................................277
Section 13.4 GOVERNING
LAW................................................279
Section 13.5
Notices......................................................280
Section 13.6 Severability of
Provisions...................................280
Section 13.7 Indulgences; No
Waivers......................................280
Section 13.8 Headings Not to Affect
Interpretation........................281
Section 13.9 Benefits of
Agreement........................................281
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Section 13.10 Special Notices to the Rating
Agencies.......................281
Section 13.11
Counterparts.................................................283
Section 13.12 Intention of
Parties.........................................283
Section 13.13 Recordation of
Agreement.....................................284
Section 13.14 Rating Agency Monitoring
Fees................................284
Section 13.15 Acknowledgement by Primary
Servicer..........................284
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form
of Class A-1 Certificate
EXHIBIT A-2 Form
of Class A-2 Certificate
EXHIBIT A-3 Form
of Class A-3 Certificate
EXHIBIT A-4 Form
of Class A-AB Certificate
EXHIBIT A-5 Form
of Class A-4 Certificate
EXHIBIT A-6 Form
of Class A-4FL Certificate
EXHIBIT A-7 Form
of Class A-J Certificate
EXHIBIT A-8 Form
of Class B Certificate
EXHIBIT A-9 Form
of Class C Certificate
EXHIBIT A-10 Form of
Class D Certificate
EXHIBIT A-11 Form of
Class E Certificate
EXHIBIT A-12 Form of
Class F Certificate
EXHIBIT A-13 Form of
Class G Certificate
EXHIBIT A-14 Form of
Class H Certificate
EXHIBIT A-15 Form of
Class J Certificate
EXHIBIT A-16 Form of
Class K Certificate
EXHIBIT A-17 Form of
Class L Certificate
EXHIBIT A-18 Form of
Class M Certificate
EXHIBIT A-19 Form of
Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of
Class P Certificate
EXHIBIT A-22 Form of
Class R-I Certificate
EXHIBIT A-23 Form of
Class R-II Certificate
EXHIBIT A-24 Form of
Class R-III Certificate
EXHIBIT A-25 Form of
Class X Certificate
EXHIBIT B-1 Form
of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form
of Final Certification of Trustee (Section 2.2)
EXHIBIT C
Form of Request for Release
EXHIBIT D-1 Form
of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of
Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of
Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of
Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates (Section
3.3(c))
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EXHIBIT D-3B Form II of
Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates (Section
3.3(c))
EXHIBIT E-1 Form
of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form
of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F
Form of Regulation S Certificate
EXHIBIT G-1 Form
of Principal Primary Servicing Agreement
EXHIBIT G-2
Reserved
EXHIBIT H
Form of Exchange Certification
EXHIBIT I
Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d))
EXHIBIT J
List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form
of Mortgage Loan Purchase Agreement I (BSCMI)
EXHIBIT K-2 Form
of Mortgage Loan Purchase Agreement II (Wells Fargo)
EXHIBIT K-3 Form
of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form
of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT K-5
Reserved
EXHIBIT L
Form of Inspection Report
EXHIBIT M
Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N
Form of CMSA Operating Statement Analysis Report
EXHIBIT O
Reserved
EXHIBIT P
Reserved
EXHIBIT Q
Reserved
EXHIBIT R
Reserved
EXHIBIT S-1 Form
of Power of Attorney to Master Servicer (Section
8.3(c))
EXHIBIT S-2 Form
of Power of Attorney to Special Servicer (Section
9.4(a)
EXHIBIT T
Form of Debt Service Coverage Ratio Procedures
EXHIBIT U
Form of Assignment and Assumption Submission to Special
Servicer (Section 8.7(a))
EXHIBIT V
Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
EXHIBIT W
Restricted Servicer Reports
EXHIBIT X
Unrestricted Servicer Reports
EXHIBIT Y
Investor Certificate (Section 5.4(a))
EXHIBIT Z
Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA
Form of Wells Fargo primary servicing agreement (Section
8.29(b))
EXHIBIT BB
Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC
Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD
Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I
BSCMI Loan Schedule
SCHEDULE II
Wells Fargo Loan Schedule
SCHEDULE III Principal
Loan Schedule
SCHEDULE IV MSMC
Loan Schedule
SCHEDULE V
Reserved
SCHEDULE VI List
of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
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SCHEDULE VII Certain
Escrow Accounts for Which a Report Under Section
5.1(g) is Required
SCHEDULE VIII List of
Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX
Reserved
SCHEDULE X
Mortgage Loans Secured
by Mortgaged
Properties Covered
by
an Environmental Insurance Policy
SCHEDULE XI List
of Mortgage Loans that
have Scheduled
Payments after
the end of a Collection Period
SCHEDULE XII Loans that
Accrue on an Actual/360 basis, but whose
Servicing Fees Accrue
on a 30/360 Basis
SCHEDULE XIII Class A-AB
Planned Principal Balance
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THIS POOLING AND SERVICING AGREEMENT is dated as of April 1,
2005
(this "Agreement") between BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., a
Delaware corporation, as depositor (the
"Depositor"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the
"Master Servicer"), ARCAP SERVICING, INC.,
as special servicer (the "Special
Servicer"), LASALLE BANK NATIONAL ASSOCIATION,
as trustee of the Trust (the "Trustee"),
ABN AMRO BANK N.V., only in its
capacity as a fiscal agent pursuant to
Article IV hereof (the "Fiscal Agent"),
and WELLS FARGO BANK, NATIONAL ASSOCIATION,
only in its capacity as paying agent
(the "Paying Agent") and certificate
registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans
from Morgan Stanley Mortgage Capital Inc.,
as seller ("MSMC"), Principal
Commercial Funding, LLC, as seller
("Principal"), Bear Stearns Commercial
Mortgage, Inc., as seller ("BSCMI") and
Wells Fargo Bank, National Association,
as seller ("Wells Fargo") and will be the
owner of the Mortgage Loans and the
other property being conveyed by it to the
Trustee for inclusion in the Trust
which is hereby created. On the Closing
Date, the Depositor will acquire (i) the
REMIC I Regular Interests and the Class R-I
Certificates as consideration for
its transfer to the Trust of the Mortgage
Loans (other than any Excess Interest
payable thereon) and the other property
constituting REMIC I; (ii) the REMIC II
Regular Interests and the Class R-II
Certificates as consideration for its
transfer of the REMIC I Regular Interests
to the Trust; (iii) the REMIC III
Certificates (other than the portion of the
Class P Certificates representing
the right to receive Excess Interest), and
the Class A-4FL Regular Interest as
consideration for its transfer of the REMIC
II Regular Interests to the Trust;
(iv) the portion of the Class P
Certificates representing the right to receive
Excess Interest as consideration for its
transfer to the Trust of such right;
and (v) the Class A-4FL Certificates as
consideration for its transfer of the
Class A-4FL Regular Interest and the Swap
Contract to the Trust. The Depositor
has duly authorized the execution and
delivery of this Agreement to provide for
the foregoing and the issuance of (A) the
REMIC I Regular Interests and the
Class R-I Certificates representing in the
aggregate the entire beneficial
ownership of REMIC I, (B) the REMIC II
Regular Interests and the Class R-II
Certificates representing in the aggregate
the entire beneficial ownership of
REMIC II, (C) the REMIC III Certificates
and the Class A-4FL Regular Interest
representing in the aggregate the entire
beneficial ownership of REMIC III and,
in the case of the Class P Certificates,
the Class P Grantor Trust and (D) the
Class A-4FL Certificates representing in
the aggregate the entire beneficial
ownership of the Class A-4FL Grantor Trust.
Excess Interest received on the
Mortgage Loans shall be held in the Class P
Grantor Trust for the benefit of the
Class P Certificates. All covenants and
agreements made by the Depositor and the
Trustee herein with respect to the Mortgage
Loans and the other property
constituting the Trust are for the benefit
of the Holders of the REMIC I Regular
Interests, the REMIC II Regular Interests,
the Residual Certificates, the REMIC
Regular Certificates (including the Class P
Certificates to the extent of their
interest in any Excess Interest), the Class
A-4FL Regular Interest and the Swap
Counterparty. The parties hereto are
entering into this Agreement, and the
Trustee is accepting the trusts created
hereby, for good and valuable
consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class A Senior, Class A-J, Class B, Class C and Class D
Certificates will be offered for sale
pursuant to the prospectus (the
"Prospectus") dated March 2, 2005, as
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supplemented by the preliminary prospectus
supplement dated April 7, 2005
(together with the Prospectus, the
"Preliminary Prospectus Supplement"), and as
further supplemented by the final
prospectus supplement dated April 19, 2005
(together with the Prospectus, the "Final
Prospectus Supplement"), and the Class
X, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates will be
offered for sale pursuant to a
Private Placement Memorandum dated April
19, 2005.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific
Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through
rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an
initial principal amount (the initial
"Certificate Balance") equal to the
Scheduled Principal Balance as of the
Cut-Off Date of the Mortgage Loan to which
the Corresponding REMIC I Regular
Interest relates, and a "latest possible
maturity date" set to the Maturity Date
of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest
relates. The Class R-I Certificate will be
designated as the sole Class of
residual interests in REMIC I and will have
no Certificate Balance and no
Pass-Through Rate, but will be entitled to
receive the proceeds of any assets
remaining in REMIC I after all Classes of
REMIC I Regular Interests have been
paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the
definition thereof. The Class R-II
Certificates will be designated as the sole
Class of residual interests in REMIC
II and will have no Certificate Balance and
no Pass-Through Rate, but will be
entitled to receive the proceeds of any
assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have
been paid in full.
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The following table sets forth the Class designation, the
corresponding REMIC II Regular Interest
(the "Corresponding REMIC II Regular
Interest") and the initial Certificate
Balance for each Class of Principal
Balance Certificates (the "Corresponding
Certificates").
Initial REMIC II
Corresponding Initial
Class
Corresponding REMIC Regular
Interest
Certificates Certificate Balance
II Regular
Interests Certificate Balance
------------ -------------------
-------------------- -------------------
Class A-1
$69,500,000
A-1
$69,500,000
Class A-2
$121,900,000
A-2
$121,900,000
Class A-3
$41,600,000
A-3
$41,600,000
Class A-AB
$105,700,000
A-AB
$105,700,000
Class A-4
$517,238,000
A-4
$517,238,000
Class A-4FL
$75,000,000
A-4FL(1)
$75,000,000
Class A-J
$74,307,000
A-J
$74,307,000
Class B
$29,443,000
B
$29,443,000
Class C
$8,412,000
C
$8,412,000
Class D
$12,618,000
D
$12,618,000
Class E
$11,216,000
E
$11,216,000
Class F
$9,814,000
F
$9,814,000
Class G
$9,814,000
G
$9,814,000
Class H
$8,412,000
H
$8,412,000
Class J
$4,206,000
J
$4,206,000
Class K
$4,206,000
K
$4,206,000
Class L
$4,206,000
L
$4,206,000
Class M
$1,402,000
M
$1,402,000
Class N
$1,403,000
N
$1,403,000
Class O
$2,804,000
O
$2,804,000
Class P
$8,412,137
P
$8,412,137
(1) REMIC II Regular Interest A-4FL
corresponds to the Class A-4FL Regular
Interest, having an initial Certificate
Balance of $75,000,000.
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<PAGE>
REMIC III, Class A-4FL Grantor Trust and Class P Grantor Trust
The following sets forth the Class designation, Pass-Through
Rate,
initial Aggregate Certificate Balance (or
initial Notional Amount) and Final
Scheduled Distribution Date for each Class
of REMIC III Certificates (or, in the
case of the Class A-4FL Certificates, the
Class A-4FL Regular Interest
represented thereby) comprising the
interests in REMIC III created hereunder,
and in the case of the Class P
Certificates, the beneficial ownership interest
in the Class P Grantor Trust.
Initial
Aggregate
REMIC III
Initial
Certificate
Interest
Pass-Through Balance or
Final Scheduled
Designation
Rate(a)
Notional Amount
Distribution Date(b)
-----------
------------ ---------------
--------------------
Class A-1
4.274%
$69,500,000
10/13/2009
Class A-2
4.556%
$121,900,000
04/13/2010
Class A-3
4.768%
$41,600,000
03/13/2012
Class A-AB
4.823%
$105,700,000
07/13/2014
Class A-4
4.933%
$517,238,000
04/13/2015
Class A-4FL(c)
4.933%
$75,000,000
04/13/2015
Class A-J
5.005%
$74,307,000
05/13/2015
Class X
0.453%
$1,121,613,137
01/13/2026
Class B
5.035%
$29,443,000
05/13/2015
Class C
5.074%
$8,412,000
05/13/2015
Class D
5.134%
$12,618,000
05/13/2015
Class E
5.258%
$11,216,000
03/13/2016
Class F
5.306%
$9,814,000
03/13/2017
Class G
5.306%
$9,814,000
10/13/2017
Class H
5.306%
$8,412,000
04/13/2019
Class J
4.706%
$4,206,000
02/13/2020
Class K
4.706%
$4,206,000
03/13/2020
Class L
4.706%
$4,206,000
04/13/2020
Class M
4.706%
$1,402,000
04/13/2020
Class N
4.706%
$1,403,000
04/13/2020
Class O
4.706%
$2,804,000
05/13/2021
Class P(d)
4.706%
$8,412,137
01/13/2026
Class R-III(e)
N/A
N/A
N/A
(a) On each Distribution Date
after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (other than the
Residual
Certificates) will be determined as described herein under the
definition
of
"Pass-Through Rate." The initial Pass-Through Rates shown above
are
approximate for the Class F, Class G, Class H and Class X
Certificates.
(b) The Final Scheduled
Distribution Date for each Class of Certificates is
the
Distribution Date on which such Class is expected to be paid in
full,
assuming
that timely payments (and no prepayments) will be made on the
Mortgage
Loans in accordance with their terms (except that each ARD Loan
will be
prepaid in full on its Anticipated Repayment Date).
(c) The Class A-4FL Certificates
are not regular interests in a REMIC but
represent
ownership of the beneficial interests in the Class A-4FL
Grantor
Trust,
which is comprised of (i) the Class A-4FL Regular Interest
(bearing
a fixed
rate of interest at 4.933% per annum subject, to a cap equal to
the
Weighted Average REMIC I Net Mortgage Rate) and the Swap
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<PAGE>
Contract
and all payments under the Class A-4FL Regular Interest and the
Swap
Contract, (ii) all funds and assets on deposit from time to time
in
the
Floating Rate Account and (iii) proceeds of all of the foregoing.
The
parties
intend that the portion of the Trust representing the Class
A-4FL
Grantor
Trust shall be treated as a grantor trust under Subpart E of
Part
1 of
Subchapter J of Chapter 1 of Subtitle A of the Code.
(d) The Class P Certificates
represent ownership of a REMIC III Regular
Interest
(entitled to the principal and interest set forth above). In
addition,
the Class P Certificates will be entitled to Excess Interest
(which
will not be a part of any REMIC Pool). The parties intend that
(i)
the
portion of the Trust representing the Excess Interest and the
Excess
Interest
Sub-account shall be treated as a grantor trust under subpart E
of Part 1
of subchapter J of Chapter 1 of Subtitle A of the Code and (ii)
the Class
P Certificates (other than the portion thereof consisting of a
REMIC III
Regular Interest) shall represent undivided beneficial
interests
in the
portion of the Trust consisting of the entitlement to receive
Excess
Interest (the "Class P Grantor Trust").
(e) The Class R-III Certificates
will be entitled to receive the proceeds of
any
remaining assets in REMIC III after the principal amounts of
all
Classes of
Certificates have been reduced to zero and any Realized Losses
previously
allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,121,613,138.
As provided herein, with respect to the Trust, the Paying Agent
on
behalf of the Trustee will make an election
for the segregated pool of assets
described in the first paragraph of Section
12.1(a) hereof (including the
Mortgage Loans (other than any Excess
Interest payable with respect to such
Mortgage Loans)) to be treated for federal
income tax purposes as a real estate
mortgage investment conduit ("REMIC I").
The REMIC I Regular Interests will be
designated as the "regular interests" in
REMIC I and the Class R-I Certificates
will be designated as the sole Class of
"residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on
behalf of the Trustee will make an election
for the segregated pool of assets
described in the second paragraph of
Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for
federal income tax purposes as a
real estate mortgage investment conduit
("REMIC II"). The REMIC II Regular
Interests will be designated as the
"regular interests" in REMIC II and the
Class R-II Certificates will be designated
as the sole Class of "residual
interests" in REMIC II for purposes of the
REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on
behalf of the Trustee will make an election
for the segregated pool of assets
described in the third paragraph of Section
12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated
for federal income tax purposes as a
real estate mortgage investment conduit
("REMIC III"). The REMIC III Regular
Interests (including, in the case of the
Class P Certificates, the Class P REMIC
Interest represented by the Class P
Certificates and, in the case of the Class
A-4FL Certificates, the Class A-4FL Regular
Interest represented by the Class
A-4FL Certificates) will be designated as
the "regular interests" in REMIC III
and the Class R-III Certificates (together
with the REMIC Regular Certificates,
the "REMIC III Certificates") will be
designated as the sole Class of "residual
interests" in REMIC III for purposes of the
REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on
behalf of the Trustee will treat: (i) the
segregated pool of assets consisting
of the Class A-4FL Regular Interest, the
Swap Contract and such amounts as shall
be held from time to time in the Floating
Rate Account and (ii) the right to any
Excess Interest in respect of the ARD Loans
and the Excess Interest Sub-Account,
as separate grantor trusts within the
meaning of subpart E, part I of Subchapter
J of the Code. The Class A-4FL Certificates
will be treated as undivided
beneficial interests in the Class A-4FL
Grantor Trust.
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<PAGE>
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the
context otherwise requires, shall have
the following meanings:
"A Note" means, with respect to any A/B Mortgage Loan, the
mortgage
note (or notes) included in the Trust that
is senior in right of payment to the
related B Note to the extent set forth in
the related Intercreditor Agreement.
"A/B Loan Custodial Account" means each of the custodial
sub-account(s) of the Certificate Account
(but which are not included in the
Trust) created and maintained by the Master
Servicer pursuant to Section 5.1(c)
on behalf of the holder of a related B
Note. Any such sub-account(s) shall be
maintained as a sub-account of an Eligible
Account.
"A/B Mortgage Loan" means the Fox Hill Run A/B Mortgage Loan or
any
Mortgage Loan serviced under this Agreement
that is divided into a senior
mortgage note and a subordinated mortgage
note, which senior mortgage note is
included in the Trust. References herein to
an A/B Mortgage Loan shall be
construed to refer to the aggregate
indebtedness under the related A Note and
the related B Note. Notwithstanding the
foregoing, for purposes of the
definitions of "Appraisal Event",
"Appraisal Reduction" and "Required Appraisal
Loan", the Chenal Commons Mortgage Loan and
"Loan B" (as such term is defined in
the related Intercreditor Agreement) shall
be deemed to be an A/B Mortgage Loan
and Loan B shall be deemed to be a B
Note.
"Accountant" means a person engaged in the practice of
accounting
who is Independent.
"Accrued Certificate Interest" means with respect to each
Distribution Date and any Class of
Interests or Principal Balance Certificates,
other than the Residual Certificates,
interest accrued during the Interest
Accrual Period relating to such
Distribution Date on the Aggregate Certificate
Balance of such Class or Interest as of the
close of business on the immediately
preceding Distribution Date at the
respective rates per annum set forth in the
definition of the applicable Pass-Through
Rate for each such Class. Accrued
Certificate Interest on the Class X
Certificates for each Distribution Date will
equal the Class X Interest Amount.
"Acquisition Date" means the date upon which, under the Code (and
in
particular the REMIC Provisions and Section
856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a
Mortgaged Property (or an interest
therein, in the case of the Mortgaged
Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced
Companion Mortgage Loan and Loan Pair).
"Additional Review Period" has the meaning set forth in Section
9.4(d).
"Additional Trust Expense" means any of the following items:
(i)
Special Servicing Fees, Work-Out Fees and
Liquidation Fees (to the extent not
collected from the related Mortgagor); (ii)
Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii)
amounts paid to indemnify the Master
Servicer, the Special Servicer, any
applicable Non-
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<PAGE>
Serviced Mortgage Loan Master Servicer, any
applicable Non-Serviced Mortgage
Loan Special Servicer, the Primary
Servicer, the Trustee, the Paying Agent, the
Fiscal Agent (or any other Person) pursuant
to the terms of this Agreement; (iv)
to the extent not otherwise paid, any
federal, state, or local taxes imposed on
the Trust or its assets and paid from
amounts on deposit in the Certificate
Account or Distribution Account; and (v) to
the extent not otherwise included in
the calculation of a Realized Loss and not
covered by indemnification by one of
the parties hereto or otherwise, any other
unanticipated cost, liability, or
expense (or portion thereof) of the Trust
(including costs of collecting such
amounts or other Additional Trust Expenses)
that the Trust has not recovered,
and in the judgment of the Master Servicer
(or Special Servicer) will not,
recover from the related Mortgagor or
Mortgaged Property or otherwise, including
a Modification Loss described in clause
(ii) of the definition thereof;
provided, however, that, in the case of an
A/B Mortgage Loan, "Additional Trust
Expense" shall not include any of the
foregoing amounts that have been recovered
from the related Mortgagor or Mortgaged
Property as a result of the
subordination of the related B Note in
accordance with the terms of the related
Intercreditor Agreement. Notwithstanding
anything to the contrary, "Additional
Trust Expenses" shall not include allocable
overhead of the Master Servicer, the
Special Servicer, any Non-Serviced Mortgage
Loan Master Servicer, any
Non-Serviced Mortgage Loan Special
Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or the Fiscal Agent,
such as costs for office space,
office equipment, supplies and related
expenses, employee salaries and related
expenses, and similar internal costs and
expenses.
"Administrative Cost
Rate" means, with respect to each Mortgage
Loan, the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate,
the Excess Servicing Fee Rate, the Trustee
Fee Rate and in the case of any
Non-Serviced Mortgage Loan, the related
Pari Passu Loan Servicing Fee Rate.
"Advance" means either a P&I Advance or a Servicing
Advance.
"Advance Interest" means interest payable to the Master
Servicer,
the Special Servicer, the Trustee or the
Fiscal Agent on outstanding Advances
(other than Unliquidated Advances) pursuant
to Section 4.5 of this Agreement and
any interest payable to any Non-Serviced
Mortgage Loan Master Servicer, any
Non-Serviced Mortgage Loan Trustee or any
Non-Serviced Mortgage Loan Fiscal
Agent with respect to Pari Passu Loan
Nonrecoverable Advances pursuant to
Section 4.4(b) hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate
as
published in the "Money Rates" section of
The Wall Street Journal from time to
time or such other publication as
determined by the Trustee in its reasonable
discretion.
"Advance Report Date" means the second Business Day prior to
each
Distribution Date.
"Adverse Grantor Trust Event" means any action that, under the
Code,
if taken or not taken, as the case may be,
would either (i) endanger the status
of any Grantor Trust Pool as a grantor
trust or (ii) result in the imposition of
a tax upon the income of any Grantor Trust
Pool or any of their respective
assets or transactions.
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<PAGE>
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the
case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or
(ii) subject to Section 9.14(e),
result in the imposition of a tax upon the
income of any REMIC Pool or any of
their respective assets or transactions,
including (without limitation) the tax
on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth
in Section 860G(d) of the Code.
"Affiliate" means, 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.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal
Balance Certificates, the REMIC I Regular
Interests, the REMIC II Regular Interests
or REMIC III Regular Interests, as the
case may be, at any date of determination.
With respect to a Class of Principal
Balance Certificates, REMIC I Regular
Interests, REMIC II Regular Interests or
REMIC III Regular Interests, Aggregate
Certificate Balance shall mean the
aggregate of the Certificate Balances of
all Certificates or Interests, as the
case may be, of that Class at any date of
determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may
require, the aggregate of the Scheduled
Principal Balances for all Mortgage
Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to each ARD
Loan,
the anticipated maturity date set forth in
the related Mortgage Note.
"Appraisal" means an appraisal by an Independent licensed MAI
appraiser having at least five years
experience in appraising property of the
same type as, and in the same geographic
area as, the Mortgaged Property being
appraised, which appraisal complies with
the Uniform Standards of Professional
Appraisal Practices and states the "market
value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair, not later than
the earliest of (i) the date 120 days
after the occurrence of any delinquency in
payment with respect to such Mortgage
Loan, A/B Mortgage Loan or Loan Pair if
such delinquency remains uncured, (ii)
the date 30 days after receipt of notice
that the related Mortgagor has filed a
bankruptcy petition or the related
Mortgagor has become the subject of
involuntary bankruptcy proceedings or the
related Mortgagor has consented to the
filing of a bankruptcy proceeding against
it or a receiver is appointed in
respect of the related Mortgaged Property,
provided such petition or appointment
is still in effect, (iii) the date that is
30 days following the date the
related Mortgaged Property becomes an REO
Property and (iv) the effective date
of any modification to a Money Term of a
Mortgage Loan, A/B Mortgage Loan or
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<PAGE>
Loan Pair, other than an extension of the
date that a Balloon Payment is due for
a period of less than six months from the
original due date of such Balloon
Payment.
"Appraisal Reduction" means, with respect to any Required
Appraisal
Loan with respect to which an Appraisal or
internal valuation is performed
pursuant to Section 6.9, an amount equal to
the excess of (A) the sum of (i) the
Scheduled Principal Balance of such
Mortgage Loan, Loan Pair or A/B Mortgage
Loan (or, in the case of an REO Property,
the related REO Mortgage Loan) less
the principal amount of any guaranty or
surety bond with a rating of at least
"BBB-" (or its equivalent) by a nationally
recognized statistical rating
organization and the undrawn principal
amount of any letter of credit or debt
service reserve, if applicable, that is
then securing such Mortgage Loan or Loan
Pair, (ii) to the extent not previously
advanced by the Master Servicer, the
Trustee or the Fiscal Agent, all accrued
and unpaid interest on such Mortgage
Loan, Loan Pair or A/B Mortgage Loan at a
per annum rate equal to the Mortgage
Rate, (iii) all unreimbursed Advances
(including Unliquidated Advances) and
interest on Advances (other than
Unliquidated Advances) at the Advance Rate with
respect to such Mortgage Loan, Loan Pair or
A/B Mortgage Loan, and (iv) to the
extent funds on deposit in any applicable
Escrow Accounts are not sufficient
therefor, and to the extent not previously
advanced by the Master Servicer, the
Special Servicer, the Trustee or the Fiscal
Agent, all currently due and unpaid
real estate taxes and assessments,
insurance premiums and, if applicable, ground
rents and other amounts which were required
to be deposited in any Escrow
Account (but were not deposited) in respect
of such Mortgaged Property or REO
Property, as the case may be, over (B) 90%
of the Appraised Value (net of any
prior mortgage liens) of such Mortgaged
Property or REO Property as determined
by such Appraisal or internal valuation, as
the case may be, plus the full
amount of any escrows held by or on behalf
of the Trustee as security for the
Mortgage Loan, Loan Pair or A/B Mortgage
Loan (less the estimated amount of the
obligations anticipated to be payable in
the next twelve months to which such
escrows relate). Each Appraisal or internal
valuation for a Required Appraisal
Loan shall be updated annually for so long
as an Appraisal Reduction exists. The
Appraisal Reduction for each Required
Appraisal Loan will be recalculated
annually based on subsequent Appraisals,
internal valuations or updates. In
addition, the Operating Adviser may at any
time request the Special Servicer to
obtain, at the Operating Adviser's expense,
an updated Appraisal, with a
corresponding adjustment to the amount of
the Appraisal Reduction (including,
without limitation, any request of a B Note
holder with respect to the related
A/B Mortgage Loan (or Operating Adviser on
their behalf) if there shall have
been a determination that such holder will
no longer be the directing holder).
Any Appraisal Reduction for any Mortgage
Loan, Loan Pair or A/B Mortgage Loan
shall be reduced to reflect any Realized
Principal Losses on the Required
Appraisal Loan, Loan Pair or A/B Mortgage
Loan. Each Appraisal Reduction will be
reduced to zero as of the date the related
Mortgage Loan, Loan Pair or A/B
Mortgage Loan is brought current under the
then current terms of the Mortgage
Loan, Loan Pair or A/B Mortgage Loan for at
least three consecutive months, and
no Appraisal Reduction will exist as to any
Mortgage Loan, Loan Pair or A/B
Mortgage Loan after it has been paid in
full, liquidated, repurchased or
otherwise disposed of. Any Appraisal
Reduction in respect of any Non-Serviced
Mortgage Loan shall be calculated in
accordance with the related Non-Serviced
Mortgage Loan Pooling and Servicing
Agreement based upon the applicable
allocation of the items set forth in
clauses (A) and (B) above between the
Non-Serviced Mortgage Loans and the related
Non-Serviced Companion Mortgage
Loans and all other related pari passu
loans. Any Appraisal Reduction in respect
of any Loan Pair shall be allocated, as
between a Serviced Pari Passu Mortgage
Loan and the related Serviced Companion
Mortgage Loan, pro rata according to
their respective Principal
-9-
<PAGE>
Balances. Any Appraisal Reduction with
respect to an A/B Mortgage Loan shall be
allocated first to the related B Note, up
to the Principal Balance thereof, and
any excess shall be allocated to the
related A Note.
"Appraised Value" means, (i) with respect to any Mortgaged
Property
(other than the Mortgaged Property relating
to a Non-Serviced Mortgage Loan),
the appraised value thereof determined by
an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an
Independent appraiser selected by the
Master Servicer or the Special Servicer, as
applicable or, in the case of an
internal valuation performed by the Special
Servicer pursuant to Section 6.9,
the value of the Mortgaged Property
determined by such internal valuation and
(ii) with respect to the Mortgaged Property
relating to a Non-Serviced Mortgage
Loan, the portion of the appraised value
allocable thereto.
"ARD Loan" means any Mortgage Loan designated as such on the
Mortgage Loan Schedule.
"Assignment of
Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or
equivalent instrument, whether
contained in the related Mortgage or
executed separately, assigning to the
holder or holders of such Mortgage all of
the related Mortgagor's interest in
the leases, rents and profits derived from
the ownership, operation, leasing or
disposition of all or a portion of the
related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage,
notice
of transfer or equivalent instrument, in
recordable form, sufficient under the
laws of the jurisdiction wherein the
related Mortgaged Property is located to
reflect the transfer of the Mortgage to the
Trustee, which assignment, notice of
transfer or equivalent instrument may be in
the form of one or more blanket
assignments covering the Mortgage Loans
secured by Mortgaged Properties located
in the same jurisdiction, if permitted by
law.
"Assumed
Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan or any B Note as to which
advancing is required hereunder for its
Maturity Date (provided that such Mortgage
Loan or B Note has not been paid in
full, and no Final Recovery Determination
or other sale or liquidation has
occurred in respect thereof, on or before
the end of the Collection Period in
which such Maturity Date occurs) and for
any subsequent Due Date therefor as of
which such Mortgage Loan or such B Note
remains outstanding and part of the
Trust, if no Scheduled Payment (other than
the related delinquent Balloon
Payment) is due for such Due Date, the
scheduled monthly payment of principal
and/or interest deemed to be due in respect
thereof on such Due Date equal to
the Scheduled Payment that would have been
due in respect of such Mortgage Loan
or such B Note on such Due Date, if it had
been required to continue to accrue
interest in accordance with its terms, and
to pay principal in accordance with
the amortization schedule in effect
immediately prior to, and without regard to
the occurrence of, its most recent Maturity
Date (as such may have been extended
in connection with a bankruptcy or similar
proceeding involving the related
Mortgagor or a modification, waiver or
amendment of such Mortgage Loan or such B
Note granted or agreed to by the Master
Servicer or the Special Servicer
pursuant to the terms hereof), and (ii)
with respect to any REO Mortgage Loan
for any Due Date therefor as of which the
related REO Property remains part of
the Trust, the scheduled monthly payment of
principal and interest deemed to be
due in respect thereof on such Due Date
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<PAGE>
equal to the Scheduled Payment (or, in the
case of a Balloon Mortgage Loan or B
Note described in the preceding clause of
this definition, the Assumed Scheduled
Payment) that was due in respect of the
related Mortgage Loan or the related B
Note on the last Due Date prior to its
becoming an REO Mortgage Loan. The amount
of the Assumed Scheduled Payment for any A
Note or B Note shall be calculated
solely by reference to the terms of such A
Note or B Note, as applicable (as
modified in connection with any bankruptcy
or similar proceeding involving the
related Mortgagor or pursuant to a
modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the
Master Servicer or the Special
Servicer pursuant to the terms hereof) and
without regard to the remittance
provisions of the related Intercreditor
Agreement.
"Authenticating Agent" means any authenticating agent serving
in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an
Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set
forth
in Section 4.6(a).
"Available Distribution Amount" means, with respect to any
Distribution Date, an amount equal to the
aggregate of (a) all amounts on
deposit in the Distribution Account as of
the commencement of business on such
Distribution Date that represent payments
and other collections on or in respect
of the Mortgage Loans and any REO
Properties that were received by the Master
Servicer or the Special Servicer through
the end of the related Collection
Period exclusive of (i) any such amounts
that were deposited in the Distribution
Account in error, (ii) amounts that are
payable or reimbursable to any Person
other than the Certificateholders
(including amounts payable to the Master
Servicer in respect of unpaid Master
Servicing Fees, the Primary Servicer in
respect of unpaid Primary Servicing Fees,
the Special Servicer in respect of
unpaid Special Servicer Compensation, the
Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid
Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid
Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv)
if such Distribution Date occurs
during January, other than in a leap year,
or February of any year, the Interest
Reserve Amounts with respect to Interest
Reserve Loans deposited in the Interest
Reserve Account, (v) in the case of each
REO Property related to an A/B Mortgage
Loan or Loan Pair, all amounts received
with respect to such A/B Mortgage Loan
or Loan Pair that are required to be paid
to the holder of the related B Note or
Serviced Companion Mortgage Loan, as
applicable, pursuant to the terms of the
related B Note or Serviced Companion
Mortgage Loan, as applicable, and the
related Intercreditor Agreement or Loan
Pair Intercreditor Agreement (which
amounts will be deposited into the related
A/B Loan Custodial Account or
Serviced Companion Mortgage Loan Custodial
Account, as applicable, pursuant to
Section 5.1(c) and withdrawn from such
accounts pursuant to Section 5.2(a)) and
(vi) Scheduled Payments collected but due
on a Due Date subsequent to the
related Collection Period and (b) if and to
the extent not already among the
amounts described in clause (a), (i) the
aggregate amount of any P&I Advances
made by the Master Servicer, the Trustee or
the Fiscal Agent for such
Distribution Date pursuant to Section 4.1
and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest
payments made by the Master Servicer for
such Distribution Date pursuant to the
terms hereof, and (iii) if such
Distribution Date occurs in March of any
year,
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commencing March 2006, the aggregate of the
Interest Reserve Amounts then held
on deposit in the Interest Reserve Account
in respect of each Interest Reserve
Loan.
"B Note" means, with respect to any A/B Mortgage Loan, the
related
subordinated Mortgage Note not included in
the Trust, which is subordinated in
right of payment to the related A Note to
the extent set forth in the related
Intercreditor Agreement.
"Balloon Mortgage Loan" means a Mortgage Loan, a Serviced
Companion
Mortgage Loan or a B Note that provides for
Scheduled Payments based on an
amortization schedule that is significantly
longer than its term to maturity and
that is expected to have a remaining
principal balance equal to or greater than
5% of its original principal balance as of
its stated maturity date, unless
prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage
Loan,
the Scheduled Payment payable on the
Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open
for
business (including dealings in foreign
exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under
the
United States Bankruptcy Code or any other
similar state law or other proceeding
with respect to the Mortgagor of, or
Mortgaged Property under, a Mortgage Loan,
including, without limitation, any
Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction
Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that
provides for payment of a Prepayment
Premium, and with respect to any Class of
Certificates (except for the Class
A-4FL Certificates) and the Class A-4FL
Regular Interest, a fraction (A) whose
numerator is the greater of (x) zero and
(y) the difference between (i) the
Pass-Through Rate on that Class of
Certificates or the Class A-4FL Regular
Interest and (ii) the Discount Rate used in
calculating the Prepayment Premium
with respect to the Principal Prepayment
(or the current Discount Rate if not
used in such calculation) and (B) whose
denominator is the difference between
(i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate
used in calculating the Prepayment Premium
with respect to that Principal
Prepayment (or the current Discount Rate if
not used in such calculation),
provided, however, that under no
circumstances will the Base Interest Fraction
be greater than one. If the Discount Rate
referred to above is greater than the
Mortgage Rate on the related Mortgage Loan,
then the Base Interest Fraction will
equal zero.
"Benefit Plan Opinion" means an Opinion of Counsel satisfactory
to
the Paying Agent and the Master Servicer to
the effect that any proposed
transfer will not (i) cause the assets of
the Trust to be regarded as plan
assets for purposes of the Plan Asset
Regulations or (ii) give rise to any
fiduciary duty on the part of the
Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent,
the Certificate Registrar or the Fiscal
Agent.
"Book-Entry Certificates" means certificates evidencing a
beneficial
interest in a Class of Certificates,
ownership and transfer of which shall be
made through book entries as described in
Section 3.7; provided, that after the
occurrence of a condition whereupon
book-
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entry registration and transfer are no
longer authorized and Definitive
Certificates are to be issued to the
Certificate Owners, such certificates shall
no longer be "Book-Entry Certificates."
"BSCMI" has the meaning set forth in the Preliminary Statement
hereto.
"BSCMI Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan
Purchase Agreement I and shown on
Schedule I hereto.
"Business Day" means any day other than (i) a Saturday or a
Sunday,
(ii) a legal holiday in New York, New York,
Chicago, Illinois, Des Moines, Iowa
(but only with respect to matters related
to the performance of obligations of
Principal Global Investors, LLC as Primary
Servicer under the Primary Servicing
Agreement), San Francisco, California or
the principal cities in which the
Special Servicer, the Trustee, the Paying
Agent or the Master Servicer conducts
servicing or trust operations, or (iii) a
day on which banking institutions or
savings associations in Minneapolis,
Minnesota, Columbia, Maryland, New York,
New York, Chicago, Illinois or San
Francisco, California are authorized or
obligated by law or executive order to be
closed.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan
other
than a Mortgage Loan with respect to which
the related Mortgaged Property became
REO Property, the sale of such Defaulted
Mortgage Loan. The Master Servicer
shall maintain records in accordance with
the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans,
based on the written reports with
respect to such Cash Liquidation delivered
by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"Category 1 Request" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are
defined in the Primary Servicing
Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as
amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by the Master
Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master
Servicer) pursuant to Section 5.1(a),
each of which shall be an Eligible
Account.
"Certificate Balance" means, with respect to any Certificate
(other
than the Class X Certificates and the
Residual Certificates) or Interest as of
any Distribution Date, the maximum
specified dollar amount of principal to which
the Holder thereof is then entitled
hereunder, such amount being equal to the
initial principal amount set forth on the
face of such Certificate (in the case
of a Certificate), or as ascribed thereto
in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i)
the amount of all principal
distributions previously made with respect
to such Certificate pursuant to
Section 6.5(a) or deemed to have been made
with respect to such Interest
pursuant to Section 6.2(a) or Section
6.3(a), as the case may be, and (ii) all
Realized Losses allocated or deemed to have
been allocated to such Interest or
Certificate in reduction of Certificate
Balance pursuant to Section 6.6, plus
(B) an amount equal to the amounts
identified in clause (I)(C) of the definition
of Principal Distribution Amount with
respect to such Distribution Date, such
increases to be allocated to the Principal
Balance Certificates or Interests in
sequential order (i.e. to the most senior
Class first), in each case up to
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the amount of Realized Losses previously
allocated thereto and not otherwise
reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry
Certificate,
the Person who is the beneficial owner of
such Book-Entry Certificate, as may be
reflected on the books of the Clearing
Agency, or on the books of a Person
maintaining an account with such Clearing
Agency (directly or as an indirect
participant, in accordance with the rules
of such Clearing Agency).
"Certificate Register" has the meaning set forth in Section
3.2.
"Certificate Registrar" means the registrar appointed pursuant
to
Section 3.2 and initially shall be the
Paying Agent.
"Certificateholders" has the meaning set forth in the definition
of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates,
the
Class R-I Certificates, the Class R-II
Certificates and the Class A-4FL
Certificates.
"Certification Parties" has the meaning set forth in Section
8.26(b).
"Certifying Person" has the meaning set forth in Section
8.26(b).
"Chenal Commons Mortgage Loan" means the Mortgage Loan designated
as
Mortgage Loan No. 39 on the Mortgage Loan
Schedule and which is senior to the
Chenal Commons' Subordinated Loan. The
Chenal Commons Mortgage Loan is a
"Mortgage Loan".
"Circle K Portfolio Pod 7 Mortgage Loan" means the Mortgage
Loan
designated as Mortgage Loan Nos. 65-75 on
the Mortgage Loan Schedule.
"Circle K Portfolio Pod 8 Mortgage Loan" means the Mortgage
Loan
designated as Mortgage Loan Nos. 110-116 on
the Mortgage Loan Schedule.
"Circle K Portfolio Pod 9 Mortgage Loan" means the Mortgage
Loan
designated as Mortgage Loan Nos. 85-93 on
the Mortgage Loan Schedule.
"Circle K Portfolio Pod Mortgage Loans" means the Circle K
Portfolio
Pod 7 Mortgage Loan, the Circle K Portfolio
Pod 8 Mortgage Loan and the Circle K
Portfolio Pod 9 Mortgage Loan.
"Chenal Commons Subordinated Loan" means the loan that is secured
by
a second lien mortgage on the same
mortgaged property that secures the Chenal
Commons Mortgage Loan.
"Class" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, the
Class A-4FL Regular Interest and the
Class A-4FL Certificates, any Class of such
Certificates or Interests.
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<PAGE>
"Class A-4FL Available Funds" means, in respect of each
Distribution
Date, (i) the sum of all previously
undistributed payments or other receipts on
account of principal and interest and other
sums on or in respect of the Class
A-4FL Regular Interest received by the
Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the
Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all
previously undistributed amounts
received from the Swap Counterparty in
respect of the Class A-4FL Regular
Interest pursuant to the Swap Contract,
including, but not limited to, any
termination payment, but in the case of
both (i) and (ii) excluding the
following: (a) all amounts of Prepayment
Premiums allocated to the Class A-4FL
Regular Interest for so long as the Swap
Contract is in effect; (b) all amounts
required to be paid to the Swap
Counterparty in respect of the Class A-4FL
Regular Interest pursuant to the Swap
Contract; and (c) all amounts incurred by
the Trustee in connection with enforcing
the rights of the Trust under the Swap
Contract.
"Class A-4FL Interest Distribution Amount" means, in respect of
any
Distribution Date, the sum of (i) for so
long as the Swap Contract is in effect,
the aggregate amount of interest received
by the Paying Agent from the Swap
Counterparty in respect of the Class A-4FL
Regular Interest pursuant to the
terms of the Swap Contract during the
related Interest Accrual Period and (ii)
amounts in respect of interest (including
reimbursement of any Interest
Shortfalls) received on the Class A-4FL
Regular Interest not required to be paid
to the Swap Counterparty (which will arise
due to the netting provisions of the
Swap Contract or upon the termination or
expiration of the Swap Contract). If
the Swap Counterparty defaults on its
obligation to pay such interest to the
Paying Agent, or if a Swap Default occurs,
the Class A-4FL Interest Distribution
Amount will equal the Distributable
Certificate Interest Amount in respect of
the Class A-4FL Regular Interest, until
such time as the Swap Default is cured,
or such obligation is paid, as the case may
be, or until a replacement Swap
Contract is obtained.
"Class A-4FL Principal Distribution Amount" means, in respect of
any
Distribution Date, an amount equal to the
aggregate amount of the principal
payments made on the Class A-4FL Regular
Interest on such Distribution Date.
"Class A-4FL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-4FL Regular
Interest and the Swap Contract and all
payments under the Class A-4FL Regular
Interest and the Swap Contract, (ii) all
funds and assets from time to time on
deposit in the Floating Rate Account and
(iii) proceeds of all of the foregoing.
"Class A-4FL Regular Interest" means the uncertificated
interest
designated as a "regular interest" in REMIC
III, which shall consist of an
Interest having a Certificate Balance equal
to the Certificate Balance of the
Class A-4FL Certificates, and which has a
Pass-Through Rate equal to the per
annum rate of the lesser of 4.933% and the
Weighted Average REMIC I Net Mortgage
Rate in respect of each Distribution
Date.
"Class A-1 Certificates," "Class A-2 Certificates," "Class A-3
Certificates," "Class A-AB Certificates,"
"Class A-4 Certificates," "Class A-4FL
Certificates," "Class A-J Certificates,"
"Class X Certificates," "Class B
Certificates," "Class C Certificates,"
"Class D Certificates," "Class E
Certificates," "Class F Certificates,"
"Class G Certificates," "Class H
Certificates," "Class J Certificates,"
"Class K Certificates," "Class L
Certificates," "Class M Certificates,"
"Class N Certificates," "Class O
Certificates," "Class P Certificates,"
"Class R-I Certificates," "Class R-II
Certificates" or "Class R-III
Certificates," mean the
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<PAGE>
Certificates designated as "Class A-1,"
"Class A-2," "Class A-3," "Class A-AB,"
"Class A-4," "Class A-4FL," "Class A-J,"
"Class X," "Class B," "Class C," "Class
D," "Class E," "Class F," "Class G," "Class
H," "Class J," "Class K," "Class L,"
"Class M," "Class N," "Class O," "Class P,"
"Class R-I," "Class R-II" and "Class
R-III" respectively, on the face thereof,
in substantially the form attached
hereto as Exhibits.
"Class A Senior Certificates" means the Class A-1 Certificates,
the
Class A-2 Certificates, the Class A-3
Certificates, the Class A-AB Certificates,
the Class A-4 Certificates and the Class
A-4FL Certificates, collectively.
"Class P Grantor Trust" means that portion of the Trust
consisting
of the Class P Grantor Trust Interest.
"Class P Grantor Trust Interest" means that portion of the
rights
represented by the Class P Certificates
that evidences beneficial ownership of
the Excess Interest and the Excess Interest
Sub-account, as described in Section
12.5(a) hereof.
"Class P REMIC Interest" means that portion of the rights
represented by the Class P Certificates
that evidences a regular interest in
REMIC III, which rights consist of the
rights to the distributions described in
Section 6.5 hereof and all other rights of
the Holders of the Class P
Certificates other than those comprising
the Class P Grantor Trust.
"Class X Certificates" means the Class X Certificates.
"Class X Interest Amount" means, with respect to any
Distribution
Date and the related Interest Accrual
Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal
to the weighted average of the Class X
Strip Rates for the REMIC III Regular
Interests, weighted on the basis of the
respective Certificate Balances of such
Classes, and (ii) the Class X Notional
Amount for such Distribution Date.
"Class X Notional Amount" means, with respect to the Class X
Certificates and any date of determination,
the aggregate of the outstanding
Certificate Balances of the Principal
Balance Certificates.
"Class X Strip Rate" means, for any Distribution Date, with
respect
to any Class of REMIC III Regular
Interests, the excess, if any, of the Weighted
Average REMIC I Net Mortgage Rate for such
Distribution Date over the
Pass-Through Rate for such Class of REMIC
III Regular Interests.
"Clearing Agency" means an organization registered as a
"clearing
agency" pursuant to Section 17A of the 1934
Act, which initially shall be the
Depository.
"Clearstream Bank" means Clearstream Bank, societe anonyme.
"Closing Date" means April 28, 2005.
"CMSA" means 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
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<PAGE>
organization as may exist whose principal
membership consists of servicers,
trustees, certificateholders, issuers, the
placement agent and underwriters
generally involved in the commercial
mortgage loan securitization industry,
which is the principal such association or
organization in the commercial
mortgage loan securitization industry and
whose principal purpose is the
establishment of industry standards for
reporting transaction-specific
information relating to commercial mortgage
pass-through certificates and
commercial mortgage-backed bonds and the
commercial mortgage loans and
foreclosed properties underlying or backing
them to investors holding or owning
such certificates or bonds, and any
successor to such other association or
organization. If an organization or
association described in one of the
preceding sentences of this definition does
not exist, "CMSA" shall be deemed to
refer to such other association or
organization as shall be selected by the
Master Servicer and reasonably acceptable
to the Trustee, the Paying Agent, the
Special Servicer, the Primary Servicer and
the majority certificateholder of the
Controlling Class.
"CMSA Advance Recovery Report" means a report substantially in
the
form of, and containing the information
called for in, the downloadable form of
the "Advance Recovery Report" available as
of the Closing Date on the CMSA
Website, or such other form for the
presentation of such information and
containing such additional information as
may from time to time be approved by
the CMSA for commercial mortgage securities
transactions generally.
"CMSA Operating Statement Analysis Report" means a report which
is
one element of the CMSA Methodology for
Analyzing and Reporting Property Income
Statements and which is substantially in
the form of Exhibit N.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports,
collectively.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable
U.S. Department of Treasury
regulations issued pursuant thereto in
temporary or final form and proposed
regulations thereunder, to the extent that,
by reason of their proposed
effective date, such proposed regulations
would apply to the Trust.
"Collection Period" means, with respect to any Distribution
Date,
the period beginning on the day after the
Determination Date in the month
preceding the month of such Distribution
Date (or in the case of the first
Distribution Date, the Cut-Off Date) and
ending on the Determination Date in the
month in which the Distribution Date
occurs.
"Commission" has the meaning set forth in Section 8.26(a).
"Compensating Interest" means with respect to any Distribution
Date,
an amount equal to the lesser of (A) the
excess of (i) Prepayment Interest
Shortfalls incurred in respect of the
Mortgage Loans other than the Specially
Serviced Mortgage Loans resulting from (x)
voluntary Principal Prepayments on
such Mortgage Loans (but not including any
B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion
Mortgage Loan) or (y) to the extent that the
Master Servicer did not apply the proceeds
thereof in accordance with the terms
of the related Mortgage Loan documents,
involuntary Principal Prepayments during
the related Collection Period over (ii) the
aggregate of Prepayment Interest
Excesses resulting from Principal
Prepayments on the Mortgage Loans (but not
including any B Note, Non-Serviced
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<PAGE>
Companion Mortgage Loan or Serviced
Companion Mortgage Loan) during the same
Collection Period and (B) the aggregate of
the portion of the aggregate Master
Servicing Fee accrued at a rate per annum
equal to 2 basis points for the
related Collection Period calculated in
respect of all the Mortgage Loans
(including REO Mortgage Loans but not
including any B Note, Non-Serviced
Companion Mortgage Loan or Serviced
Companion Mortgage Loan), plus any
investment income earned on the amount
prepaid prior to such Distribution Date.
"Condemnation Proceeds" means any awards resulting from the full
or
partial condemnation or any eminent domain
proceeding or any conveyance in lieu
or in anticipation thereof with respect to
a Mortgaged Property by or to any
governmental, quasi-governmental authority
or private entity with condemnation
powers other than amounts to be applied to
the restoration, preservation or
repair of such Mortgaged Property or
released to the related Mortgagor in
accordance with the terms of the Mortgage
Loan and (if applicable) its related B
Note or Serviced Companion Mortgage Loan.
With respect to the Mortgaged Property
securing any Non-Serviced Mortgage Loan or
Non-Serviced Companion Mortgage Loan,
only the portion of such amounts payable to
the holder of the related
Non-Serviced Mortgage Loan shall be
included in Condemnation Proceeds, and with
respect to the Mortgaged Property securing
any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts payable to
the holder of the related Serviced
Pari Passu Mortgage or A Note, as
applicable, shall be included in Condemnation
Proceeds.
"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates or Class A-4FL
Certificates outstanding at any time of
determination; provided, that, if the
aggregate Certificate Balance of such
Class is less than 25% of the initial
Certificate Balance of such Class as of
the Closing Date, the Controlling Class
shall be the next most subordinate Class
of REMIC Regular Certificates or Class
A-4FL Certificates outstanding. As of the
Closing Date, the Controlling Class will be
the Class P Certificates.
"Controlling Person" means, with respect to any Person, any
other
Person who "controls" such Person within
the meaning of the 1933 Act.
"Corporate Trust Office" means, with respect to the presentment
and
surrender of Certificates for the final
distribution thereon or the presentment
and surrender of Certificates for any other
purpose, the principal corporate
trust office of the Certificate Registrar.
The principal corporate trust office
of the Trustee is presently located at 135
South LaSalle Street, Suite 1625,
Chicago, IL 60603, Attention: Global
Securitization Trust Services Group-- Bear
Stearns Commercial Mortgage Securities Inc.
Series 2005-TOP18 and the office of
the Certificate Registrar is presently
located for certificate transfer purposes
at Wells Fargo Center, Sixth and Marquette
Avenue, MAC #N9303-121, Minneapolis,
Minnesota 55479-0113, Attention: Corporate
Trust Services (CMBS) -- Bear Stearns
Commercial Mortgage Securities Inc. Series
2005-TOP18, and for all other
purposes at 9062 Old Annapolis Road,
Columbia, Maryland 21045, Attention:
Corporate Trust Services (CMBS)-- Bear
Stearns Commercial Mortgage Securities
Inc. Series 2005-TOP18, or at such other
address as the Trustee or Certificate
Registrar may designate from time to time
by notice to the Certificateholders,
the Depositor, the Master Servicer, the
Paying Agent and the Special Servicer.
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<PAGE>
"Corresponding Certificate" means the Class of Certificates (or,
in
the case of the Class A-4FL Certificates,
the Class A-4FL Regular Interest) as
set forth in the Preliminary Statement with
respect to any Corresponding REMIC
II Regular Interest.
"Corresponding REMIC I Regular Interest" means with respect to
each
Mortgage Loan, the REMIC I Regular Interest
having an initial Certificate
Balance equal to the Principal Balance of
such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account
all principal and interest payments
made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II
Regular
Interest as defined in the Preliminary
Statement with respect to any Class of
Corresponding Certificates (or, in the case
of the Class A-4FL Certificates, the
Class A-4FL Regular Interest).
"Crossed Mortgage Loan" has the meaning set forth in Section
2.3(a).
"Custodian" means the Trustee or any Person who is appointed by
the
Trustee at any time as custodian pursuant
to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and
satisfies the eligibility requirements of
the Trustee as set forth in Section
7.5.
"Customer" means a broker, dealer, bank, other financial
institution
or other Person for whom the Clearing
Agency effects book-entry transfers and
pledges of securities deposited with the
Clearing Agency.
"Cut-Off Date" means the end of business on April 1, 2005,
provided
that with respect to any Mortgage Loan that
was originated in April 2005 that
has its first Scheduled Payment in June
2005, the date of origination. The
Cut-Off Date for any Mortgage Loan that has
a Due Date on a date other than the
first day of each month shall be the end of
business on April 1, 2005, and
Scheduled Payments due in April 2005 with
respect to Mortgage Loans not having
Due Dates on the first of each month have
been deemed received on April 1, 2005,
not the actual day on which such Scheduled
Payments were due.
"Debt Service Coverage Ratio" means, with respect to any
Mortgage
Loan, as of any date of determination and
for any period, the amount calculated
for such date of determination in
accordance with the procedures set forth in
Exhibit T.
"Debt Service Reduction Amount" means, with respect to a Due
Date
and the related Determination Date, the
amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to
pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any
similar proceeding (other than a
Deficient Valuation Amount); provided,
however, that in the case of an amount
that is deferred, but not forgiven, such
reduction shall include only the net
present value (calculated at the related
Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan or Serviced
Companion Mortgage Loan that is in default
under the terms of the applicable
Mortgage Loan documentation and for which
any applicable grace period has
expired.
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<PAGE>
"Defeasance Collateral" means, with respect to any Defeasance
Loan,
the United States Treasury obligations
required to be pledged in lieu of
prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan, Serviced Companion
Mortgage Loan or B Note which requires or
permits the related Mortgagor (or
permits the holder of such Mortgage Loan,
Serviced Companion Mortgage Loan or B
Note to require the related Mortgagor) to
pledge Defeasance Collateral to such
holder in lieu of prepayment.
"Defective Mortgage Loan" has the meaning set forth in Section
2.3(a).
"Deficient Valuation" means, with respect to any Mortgage Loan
(other than an A Note or a Serviced Pari
Passu Mortgage Loan), any A/B Mortgage
Loan or any Loan Pair, a valuation by a
court of competent jurisdiction of the
Mortgaged Property (or, with respect to a
Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the pro
rata portion of the valuation
allocable to such Non-Serviced Mortgage
Loan or Serviced Pari Passu Mortgage
Loan, as applicable) relating to such
Mortgage Loan, A/B Mortgage Loan or Loan
Pair in an amount less than the then
outstanding indebtedness under such
Mortgage Loan, A/B Mortgage Loan or Loan
Pair, which valuation results from a
proceeding initiated under the United
States Bankruptcy Code, as amended from
time to time, and that reduces the amount
the Mortgagor is required to pay under
such Mortgage Loan, A/B Mortgage Loan or
Loan Pair.
"Deficient Valuation Amount" means (i) with respect to each
Mortgage
Loan (other than an A Note or a Serviced
Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount
by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage
Loan or Loan Pair (excluding
interest not yet accrued), including the
Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus
any accrued and unpaid interest
thereon and any other amounts recoverable
from the Mortgagor with respect
thereto pursuant to the terms thereof, is
reduced in connection with a Deficient
Valuation and (ii) with respect to any A
Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient
Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is
borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as
applicable, under the related
Intercreditor Agreement or Loan Pair
Intercreditor Agreement, as applicable.
"Definitive Certificates" means Certificates of any Class issued
in
definitive, fully registered, certificated
form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is
repurchased
from the Trust pursuant to the terms hereof
or as to which one or more
Qualifying Substitute Mortgage Loans are
substituted.
"Depositor" means Bear
Stearns Commercial Mortgage Securities
Inc., a Delaware corporation, and its
successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Letter of Representations dated
the
Closing Date and by and among the
Depositor, the Paying Agent and the
Depository.
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"Determination Date" means, with respect to any Distribution
Date,
the earlier of (i) the 8th day of the month
in which such Distribution Date
occurs or, if such day is not a Business
Day, the immediately preceding Business
Day, and (ii) the 5th Business Day prior to
the related Distribution Date,
commencing May 6, 2005.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the
tenants thereof, the management of
such REO Property, the holding of such REO
Property primarily for sale to
customers (other than a sale of an REO
Property pursuant to and in accordance
with Section 9.15) or the performance of
any construction work thereon, in each
case other than through an Independent
Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf
of the Trustee) shall not be
considered to Directly Operate an REO
Property solely because the Trustee (or
the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses
tenants, enters into or renews leases,
deals with taxes and insurance, or makes
decisions as to repairs, tenant
improvements or capital expenditures with
respect to such REO Property (including,
without limitation, construction
activity to effect repairs or in connection
with leasing activity) or undertakes
any ministerial action incidental
thereto.
"Discount Rate" means the rate which, when compounded monthly,
is
equivalent to the Treasury Rate when
compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the
Mortgage Loan documents, is the yield
calculated by the linear interpolation of
the yields, as reported in Federal
Reserve Statistical Release H.15--Selected
Interest Rates under the heading
"U.S. government securities/Treasury
constant maturities" for the week ending
prior to the date of the relevant principal
prepayment, of U.S. Treasury
constant maturities with a maturity date
(one longer and one shorter) most
nearly approximating the maturity date (or
the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid.
If Release H.15 is no longer
published, the Master Servicer will select
a comparable publication to determine
the Treasury Rate.
"Disqualified Organization" means any of (i) the United States,
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 FHLMC, 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) an
organization (except certain farmers'
cooperatives described in Section 521 of
the Code) which is exempt from 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,
and (v) any other Person so designated by
the Master Servicer based upon an
Opinion of Counsel that the holding of an
ownership interest in a Residual
Certificate by such Person may cause any of
the REMICs, or any Person having an
Ownership Interest in any Class of
Certificates, other than such Person, to
incur a liability for any federal tax
imposed under the Code that would not
otherwise be imposed but for the transfer
of an ownership interest in a Residual
Certificate to such Person. The terms
"United States," "State" and
"international organization" shall have the
meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of
Certificates (other than the Class A-4FL
Certificates and the Residual
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Certificates) or Interests (including the
Class A-4FL Regular Interest), the sum
of (A) Accrued Certificate Interest in
respect of such Class or Interest,
reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest
Shortfalls for such Class of Certificates
or Interests, allocated on such
Distribution Date to such Class or Interest
pursuant to Section 6.7, and (ii)
Realized Losses allocated on such
Distribution Date to reduce the Distributable
Certificate Interest payable to such Class
or Interest pursuant to Section 6.6,
plus (B) the Unpaid Interest, plus (C) if
the Aggregate Certificate Balance is
reduced because of a diversion of principal
in accordance with Section
5.2(a)(II)(iv), and there is a subsequent
recovery of amounts as described in
Section 6.6(c)(i), then interest at the
applicable Pass-Through Rate that would
have accrued and been distributable with
respect to the amount that the
Aggregate Certificate Balance was so
reduced, which interest shall accrue from
the date that the related Realized Loss is
allocated through the end of the
Interest Accrual Period related to the
Distribution Date on which such amounts
are subsequently recovered.
"Distribution Account" means the Distribution Account maintained
by
the Paying Agent on behalf of the Trustee,
in accordance with the provisions of
Section 5.3, which account shall be an
Eligible Account.
"Distribution Date" means the 13th day of each month or, if such
day
is not a Business Day, the next succeeding
Business Day, commencing May 13,
2005.
"Due Date" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the
date on which a Scheduled Payment is
due.
"Eligible Account" means an account (or accounts) that is any of
the
following: (i) maintained with a depository
institution or trust company whose
(A) commercial paper, short-term unsecured
debt obligations or other short-term
deposits are rated at least "P-1" by
Moody's and "F-1" by Fitch, 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 "Aa3"
by Moody's and at least "AA-" by
Fitch, if the deposits are to be held in
the account more than 30 days or (ii) a
segregated trust account or accounts
maintained in the trust department of the
Trustee, the Paying Agent or other
financial institution having a combined
capital and surplus of at least $50,000,000
and subject to regulations regarding
fiduciary funds on deposit similar to Title
12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an
account or accounts of a depository
institution acceptable to each Rating
Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any
such account as the Certificate
Account or the Distribution Account.
Notwithstanding anything in the foregoing
to the contrary, an account shall not fail
to be an Eligible Account solely
because it is maintained with Wells Fargo
Bank, National Association, a
wholly-owned subsidiary of Wells Fargo
& Co., provided that such subsidiary's or
its parent's (A) commercial paper,
short-term unsecured debt obligations or
other short-term deposits are at least
"P-1" in the case of Moody's, and "F-1"
in the case of Fitch, 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 "Aa3" in
the case of Moody's and at least "A+" in
the case of Fitch, if the deposits are
to be held in the account for more than 30
days.
"Eligible Investments" means any one or more of the following
financial assets or other property:
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(i) direct obligations of, and obligations fully guaranteed as
to
timely payment of principal and interest
by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of
the United States of America the
obligations of which are backed by the full
faith and credit of the United
States of America; provided that any
obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or
FHLMC, shall be an Eligible
Investment only if Rating Agency
Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of
deposit
of, money market deposit accounts of, or
bankers' acceptances issued by, any
depository institution or trust company
(including the Trustee, the Master
Servicer, the Special Servicer, the Paying
Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying
Agent or the Trustee, acting in its
commercial capacity) incorporated or
organized under the laws of the United
States of America or any State thereof and
subject to supervision and
examination by federal or state banking
authorities, so long as the commercial
paper or other short-term debt obligations
of such depository institution or
trust company are rated "F-1" by Fitch and
"Prime-1" by Moody's or the long-term
unsecured debt obligations of such
depository institution or trust company have
been assigned a rating by each Rating
Agency at least equal "AA" by Fitch and
"Aa2" by Moody's or its equivalent or, in
each case, if not rated by a Rating
Agency, then such Rating Agency has issued
a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above
where such security has a remaining
maturity of one year or less and where such
repurchase obligation has been
entered into with a depository institution
or trust company (acting as
principal) described in clause (ii) above
and where such repurchase obligation
will mature prior to the Business Day
preceding the next date upon which, as
described in this Agreement, such amounts
are required to be withdrawn from the
Certificate Account and which meets the
minimum rating requirement for such
entity described above (or for which Rating
Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a
discount issued by any corporation
incorporated under the laws of the United
States of America or any state
thereof, which securities are rated "AA-"
or its equivalent by each Rating
Agency, unless otherwise specified in
writing by the Rating Agency; provided
that securities issued by any particular
corporation will not be Eligible
Investments to the extent that investment
therein will cause the
then-outstanding principal amount of
securities issued by such corporation and
held in the Certificate Account to exceed
5% of the sum of the aggregate
Certificate Principal Balance of the
Principal Balance Certificates and the
aggregate principal amount of all Eligible
Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing
obligations payable on demand or on a specified
date not more than one year after the date
of issuance thereof) rated "F-1+" by
Fitch and "Prime-1" by Moody's (or for
which Rating Agency Confirmation is
obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that
are rated in the highest long-term category
by Fitch, or if not rated by Fitch
then Fitch has issued a Rating Agency
Confirmation, and the highest long-term
category by Moody's, or if not rated by
Moody's, then Moody's has issued a
Rating Agency Confirmation;
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(vii) guaranteed reinvestment agreements maturing within 365 days
or
less issued by any bank, insurance company
or other corporation whose long-term
unsecured debt rating is not less than "AA"
(or its equivalent) by Fitch and
"Aa2" by Moody's (if rated by Fitch or, if
not rated by Fitch, by Moody's and
another nationally recognized statistical
rating organization), or for which
Rating Agency Confirmation is obtained with
respect to such ratings;
(viii) any money market funds (including those managed or advised
by
the Paying Agent or its affiliates) that
maintain a constant asset value and
that are rated "Aaa" (or its equivalent
rating) by Moody's and "AAA" (or its
equivalent) by Fitch (if so rated by
Fitch), and any other demand, money-market
or time deposit, or any other obligation,
security or investment, with respect
to which Rating Agency Confirmation has
been obtained; and
(ix) such other investments bearing interest or sold at a
discount,
earning a return "in the nature of
interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(1)(i) (as
evidenced by an Opinion of Counsel
delivered to the Trustee and the Paying
Agent by the Master Servicer at the
Master Servicer's expense), as are
acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation)
and treated as "permitted investments"
that are "cash flow investments" under
Section 860G(a)(5) of the Code;
provided (A) such investment is held for a
temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations,
(B) such investment is payable by
the obligor in U.S. dollars, and (C) that
no such instrument shall be an
Eligible Investment (1) if such instrument
evidences either (a) a right to
receive only interest payments or only
principal payments with respect to the
obligations underlying such instrument or
(b) a right to receive both principal
and interest payments derived from
obligations underlying such instrument and
the principal and interest payments with
respect to such instrument provide a
yield to maturity of greater than 120% of
the yield to maturity at par of such
underlying obligations, or (2) if it may be
redeemed at a price below the
purchase price or (3) if it is not treated
as a "permitted investment" that is a
"cash flow investment" under Section
860G(a)(5) of the Code; and provided,
further, that any such instrument shall
have a maturity date no later than the
date such instrument is required to be used
to satisfy the obligations under
this Agreement, and, in any event, shall
not have a maturity in excess of one
year; any such instrument must have a
predetermined fixed dollar of principal
due at maturity that cannot vary or change;
if rated, the obligation must not
have an "r" highlighter affixed to its
rating; interest on any variable rate
instrument shall be tied to a single
interest rate index plus a single fixed
spread (if any) and move proportionally
with that index; and provided, further,
that no amount beneficially owned by any
REMIC Pool (including any amounts
collected by the Master Servicer but not
yet deposited in the Certificate
Account) may be invested in investments
treated as equity interests for Federal
income tax purposes. No Eligible
Investments shall be purchased at a price in
excess of par. For the purpose of this
definition, units of investment funds
(including money market funds) shall be
deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to
any
Mortgage Loan or the related Mortgaged
Property or REO Property, any insurance
policy covering pollution conditions and/or
other environmental conditions that
is maintained from time to time in respect
of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may
be, for the benefit of, among others,
the Trustee on behalf of the
Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees,
permits, concessions, grants,
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franchises, licenses, agreements or other
governmental restrictions, now or
hereafter in effect, relating to health or
the environment or to emissions,
discharges or releases of chemical
substances, including, without limitation,
any and all pollutants, contaminants,
petroleum or petroleum products, asbestos
or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde
insulation, radon, industrial, toxic or
hazardous substances or wastes, into the
environment, including, without limitation,
ambient air, surface water, ground
water or land, or otherwise relating to the
manufacture, processing,
distribution, use, labeling, registration,
treatment, storage, disposal,
transport or handling of any of the
foregoing substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974,
as amended.
"Escrow Account" means an account established by or on behalf of
the
Master Servicer pursuant to Section
8.3(e).
"Escrow Amount" means any amount payable with respect to a
Mortgage
Loan (including an A/B Mortgage Loan) for
taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums,
ground lease payments, reserves for
capital improvements, deferred maintenance,
repairs, tenant improvements,
leasing commissions, rental achievements,
environmental matters and other
reserves or comparable items.
"Euroclear Bank" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear system.
"Event of Default" has the meaning set forth in Section
8.28(a).
"Excess Interest" means, with respect to an ARD Loan if an ARD
Loan
is not prepaid in full on or before its
Anticipated Repayment Date, the excess,
if any of (i) interest accrued at the rate
of interest applicable to such
Mortgage Loan after such Anticipated
Repayment Date (plus any interest on such
interest as may be provided for under the
related Mortgage Loan documents) over
(ii) interest accrued at the rate of
interest applicable to such Mortgage Loan
before such Anticipated Repayment Date.
Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an
asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account
deemed
to be a sub-account of the Distribution
Account. The Excess Interest Sub-account
shall not be an asset of any REMIC
Pool.
"Excess Liquidation Proceeds" means, with respect to any
Mortgage
Loan, the excess of (i) Liquidation
Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would
have been received if a Principal
Prepayment in full had been made with
respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B
Mortgage Loan, a Principal Prepayment
in full had been made with respect to both
the related A Note and B Note, or, in
the case of an REO Property related to a
Loan Pair, a Principal Prepayment in
full had been made with respect to both the
Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan)
on the date such proceeds were
received plus accrued and unpaid interest
with respect to such Mortgage Loan and
any and all expenses (including Additional
Trust Expenses and Unliquidated
Advances) with respect to such Mortgage
Loan.
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<PAGE>
"Excess Servicing Fee" means, with respect to the Mortgage Loans
or
the Serviced Companion Mortgage Loans for
which an "excess servicing fee rate"
is designated on the Mortgage Loan
Schedule, the monthly fee payable to Wells
Fargo Bank, National Association or its
successors and assigns as holder of
excess servicing rights, which fee shall
accrue on the Scheduled Principal
Balance of each such Mortgage Loan
immediately prior to the Due Date occurring
in each month at the per annum rate
(determined in the same manner as the
applicable Mortgage Rate for such Mortgage
Loan is determined for such month)
specified on the Mortgage Loan Schedule
(the "Excess Servicing Fee Rate"). The
holder of excess servicing rights is
entitled to Excess Servicing Fees only with
respect to the Mortgage Loans or Serviced
Companion Mortgage Loans as indicated
on Exhibit J hereto.
"Exchange Act" has the meaning set forth in Section 8.26(a).
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in
Exhibit H hereto executed by a holder of
an interest in a Regulation S Global
Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"Exemption" means each of the individual prohibited transaction
exemptions granted by the United States
Department of Labor to the Underwriters,
as amended.
"Expense Loss" means a loss realized upon payment by the Trust of
an
Additional Trust Expense.
"Extension" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any
successor thereto.
"FHLMC Audit Program" has the meaning set forth in Section
8.13.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Judicial Determination" has the meaning set forth in
Section
2.3(a).
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Recovery Determination" means a determination with respect
to
any Mortgage Loan, B Note, Specially
Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special
Servicer in consultation with the
Operating Adviser and the Master Servicer
(including a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that
became an REO Property), in each case,
in its good faith discretion, consistent
with the Servicing Standard, that all
Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase
Proceeds and other payments or recoveries
that the Special Servicer expects to
be finally recoverable on such Mortgage
Loan, Serviced Companion Mortgage Loan
or B Note, without regard to any obligation
of the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent,
as the
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<PAGE>
case may be, to make payments from its own
funds pursuant to Article IV hereof,
have been recovered. The Special Servicer
shall be required to provide the
Master Servicer with prompt written notice
of any Final Recovery Determination
with respect to any Specially Serviced
Mortgage Loan upon making such
determination. The Master Servicer shall
notify the Trustee and the Paying Agent
of such determination and the Paying Agent
shall deliver a copy of such notice
to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of
rated
Certificates, the Distribution Date on
which such Class would be paid in full if
payments were made on the Mortgage Loans in
accordance with their terms, except
that ARD Loans are assumed to be repaid on
their Anticipated Repayment Dates.
"Financial Market Publishers" means Trepp, LLC, Intex
Solutions,
Inc. and S&P's Conquest, or any
successor entities thereof.
"Finisar Portfolio Mortgage Loan" means the Mortgage Loan
designated
as Mortgage Loan Nos. 12-13 on the Mortgage
Loan Schedule.
"Fiscal Agent" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands
and its permitted successors and
assigns.
"Fiscal Agent Termination Event" has the meaning set forth in
Section 4.7.
"Fitch" means Fitch, Inc. or its successor in interest.
"Fixed Interest Distribution" means with respect to the Class
A-4FL
Regular Interest, the payments of interest
required to be made in respect of
each Distribution Date, commencing in May
2005, by the Master Servicer on behalf
of the Trustee to the Swap Counterparty
pursuant to the Swap Contract at a rate
equal to the Pass-Through Rate of the Class
A-4FL Regular Interest on the
Floating Rate Certificate Notional Amount
subject to reduction in accordance
with the Swap Contract.
"Floating Rate Account" means the Eligible Account or Accounts
established and maintained by the Paying
Agent and the Master Servicer on behalf
of the Trustee with respect to the Class
A-4FL Certificates, which shall be
entitled "Wells Fargo Bank, National
Association, as Paying Agent on behalf of
LaSalle Bank National Association, as
Trustee, in trust for Holders of Bear
Stearns Commercial Mortgage Securities
Trust 2005-TOP18, Floating Rate Account,
Class A-4FL" and "Wells Fargo Bank,
National Association, as Master Servicer for
LaSalle Bank National Association, as
Trustee for the Holders of Bear Stearns
Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP18, Floating
Rate Account, Class A-4FL",
respectively; provided, that the Floating
Rate Account may be a subaccount of
the Distribution Account or the Certificate
Account. The Floating Rate Account
shall be an asset of the Class A-4FL
Grantor Trust.
"Floating Rate Certificate Notional Amount" means a notional
amount
equal to the Certificate Balance of the
Class A-4FL Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
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<PAGE>
"Fox Hill Run A/B Mortgage Loan" means the Fox Hill Run
Mortgage
Loan and the Fox Hill Run B Note.
"Fox Hill Run B Note" means, with respect to the Fox Hill Run
A/B
Mortgage Loan, the related subordinated B
Note not included in the Trust, which
is subordinated in right of payment to the
Fox Hill Run Mortgage Loan to the
extent set forth in the related
Intercreditor Agreement.
"Fox Hill Run Mortgage" means the Mortgage securing the Fox Hill
Run
A/B Mortgage Loan and any other note
secured by the related Mortgaged Property.
"Fox Hill Run Mortgage Loan" means the Mortgage Loan designated
as
Mortgage Loan No. 20 on the Mortgage Loan
Schedule and which is senior to the
Fox Hill Run B Note and is secured by the
related Mortgaged Property pursuant to
the Fox Hill Run Mortgage. The Fox Hill Run
Mortgage Loan is a "Mortgage Loan."
"Global Certificate" means any Rule 144A-IAI Global
Certificate,
Regulation S Temporary Global Certificate
or Regulation S Permanent Global
Certificate.
"Grantor Trust Pool" means each of the segregated pools of
assets
designated as the "Class P Grantor Trust"
pursuant to Section 12.5 hereof and
the segregated pool of assets designated as
the "Class A-4FL Grantor Trust"
pursuant to Section 12.5 hereof.
"Holder" means the Person in whose name a Certificate is
registered
on the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class
of
Certificates sold to Institutional
Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in
definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants,
a
Person who is "independent" within the
meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X.
Independent means, when used with
respect to any other Person, a Person who
(A) is in fact independent of another
specified Person and any Affiliate of such
other Person, (B) does not have any
material direct or indirect financial
interest in such other Person or any
Affiliate of such other Person, (C) is not
connected with such other Person or
any Affiliate of such other Person as an
officer, employee, promoter,
underwriter, trustee, partner, director or
Person performing similar functions
and (D) is not a member of the immediate
family of a Person defined in clause
(B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially
Serviced Mortgage Loan, any Person
designated by the Master Servicer (other
than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or
(B) that is a Specially Serviced
Mortgage Loan, any Person designated by the
Special Servicer that would be an
"independent contractor" with respect to a
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 such Section shall be
considered to be met by any Person that
owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance
or Notional Amount, as the case may
be, of any Class of the Certificates (other
than the Residual
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<PAGE>
Certificates), a Percentage Interest of 35%
or more in the Residual Certificates
or such other interest in any Class of the
Certificates or of the applicable
REMIC Pool as is set forth in an Opinion of
Counsel, which shall be at no
expense to the Trustee or the Trust) so
long as such REMIC Pool does not receive
or derive any income from such Person and
provided that the relationship between
such Person and such REMIC is at arm's
length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5),
or (ii) any other Person (including
the Master Servicer or the Special
Servicer) upon receipt by the Trustee of an
Opinion of Counsel, which shall be at the
expense of the Person delivering such
opinion to the Trustee, to the effect that
the taking of any action in respect
of any REO Property by such Person, subject
to any conditions therein specified,
that is otherwise herein contemplated to be
taken by an Independent Contractor
will not cause such REO Property to cease
to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of
the Code (determined without regard
to the exception applicable for purposes of
Section 860D(a) of the Code), or
cause any income realized in respect of
such REO Property to fail to qualify as
Rents from Real Property.
"Initial Certification" has the meaning set forth in Section
2.2.
"Initial Deposit" means the amount of all collections made on
the
Mortgage Loans from the Cut-Off Date to and
excluding the Closing Date and, with
respect to Mortgage Loans Nos. 1 and 6,
which are being originated in April 2005
and have their first Due Dates in June
2005, an amount equal to $518,333.34,
which amount represents one month's
interest on the initial Principal Balance of
such Mortgage Loans.
"Initial Review Period" has the meaning set forth in Section
9.4(d).
"Inspection Report" means the report delivered by the Master
Servicer or the Special Servicer, as the
case may be, substantially in the form
of Exhibit L hereto.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to
Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"Insured Environmental Event" has the meaning set forth in
Section
9.1(f).
"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy,
title insurance policy, terrorism
insurance policy or Environmental Insurance
Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect
as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under
any
Insurance Policy, other than amounts
required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan,
the related Serviced Companion
Mortgage Loan, the related B Note or the
Servicing Standard. With respect to the
Mortgaged Property securing any
Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion
of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan
shall be included in Insurance
Proceeds, and with respect to the Mortgaged
Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such
amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan
or the related A Note, as applicable,
shall be included in Insurance
Proceeds.
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"Intercreditor Agreement" means, with respect to an A/B
Mortgage
Loan, the related intercreditor agreement
by and between the holder of the
related A Note(s) and the holder of the
related B Note relating to the relative
rights of such holders of the respective A
Note(s) and B Note, as the same may
be further amended from time to time in
accordance with the terms thereof.
"Interest" means a REMIC I Interest, a REMIC II Interest or the
Class A-4FL Regular Interest, as
applicable.
"Interest Accrual Period" means, for any Distribution Date,
with
respect to all Classes of Certificates
(other than the Class A-4FL Certificates)
and Interests (including the Class A-4FL
Regular Interest but other than the
Residual Certificates), the period
beginning on the first day of the month
preceding the month in which such
Distribution Date occurs and ending on the
last day of the month preceding the month
in which such Distribution Date occurs
and with respect to the Class A-4FL
Certificates, the period from (and
including) the prior Distribution Date (or
the Closing Date, in the case of the
first such period) and ending on (and
including) the day before the current
Distribution Date.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Master Servicer pursuant
to Section 5.1(a), which account
shall be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which
bear
interest other than on the basis of a
360-day year consisting of twelve (12)
30-day months.
"Interest Reset Date" means the day that is two Banking Days
prior
to the start of the related Interest
Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicer, the Special Servicer, the
Depositor, the holder of any related
Junior Indebtedness (with respect to any
particular Mortgage Loan), a holder of
50% or more of the Controlling Class, the
Operating Adviser, any Independent
Contractor engaged by the Master Servicer
or the Special Servicer pursuant to
this Agreement, or any Person actually
known to a Responsible Officer of the
Trustee to be an Affiliate of any of
them.
"Investor Based Exemption" means any of Prohibited Transaction
Class
Exemption ("PTCE") 84-14 (for transactions
by independent "qualified
professional asset managers"), PTCE 90-1
(for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for
transactions by bank collective
investment funds), PTCE 95-60 (for
transactions by insurance company general
accounts) or PTCE 96-23 (for transactions
effected by "in-house asset
managers"), or any comparable exemption
available under Similar Laws.
"Junior Indebtedness" means any indebtedness of any Mortgagor
that
is secured by a lien that is junior in
right of payment to the lien of the
Mortgage securing the related Mortgage
Note.
"Late Collections" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note,
all amounts received during any
Collection Period,
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whether as late payments or as Liquidation
Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or
otherwise, that represent payments
or collections of Scheduled Payments due
but delinquent for a previous
Collection Period and not previously
recovered.
"Late Fee" means a fee payable to the Master Servicer or the
Special
Servicer, as the case may be, to the extent
actually collected from the
Mortgagor as provided in the related
Mortgage Loan, Serviced Companion Mortgage
Loan or the related B Note in connection
with a late payment made by such
Mortgagor. References in this Agreement to
Late Fees and default interest in
respect of any Loan Pair or in respect of
any Non-Serviced Mortgage Loan and its
related Non-Serviced Companion Mortgage
Loan shall mean only the portion thereof
that is received by the Trust in accordance
with the applicable Loan Pair
Intercreditor Agreement or Non-Serviced
Mortgage Loan Intercreditor Agreement.
Notwithstanding anything to the contrary in
this Agreement, Late Fees relating,
and allocated, to the Fox Hill Run B Note
in accordance with the related
Intercreditor Agreement (after being first
applied to Advance Interest) shall be
payable to the Holder of the Fox Hill Run B
Note in accordance with the related
Intercreditor Agreement.
"LIBOR" means with respect to each Interest Accrual Period, the
per
annum rate for deposits in U.S. dollars for
a period of one month, which appears
on the Telerate page 3750 as the "London
Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset
Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the
arithmetic mean of the offered
quotations obtained by the Paying Agent
from the principal London office of four
major banks in the London interbank market
selected by the Swap Counterparty in
its sole discretion (each, a "Reference
Bank") for rates at which deposits in
U.S. dollars are offered to prime banks in
the London interbank market for a
period of one month in an amount that is
representative for a single transaction
in the relevant market at the relevant time
as of approximately 11:00 a.m.,
London time, on the Interest Reset Date. If
fewer than two Reference Banks
provide the Swap Counterparty with such
quotations, LIBOR shall be the rate per
annum which the Swap Counterparty
determines to be the arithmetic mean of the
rates quoted by major banks in New York
City, New York selected by the Swap
Counterparty at approximately 11:00 a.m.
New York City time on the first day of
the Interest Accrual Period for loans in
U.S. dollars to leading European banks
for a period of one month in an amount that
is representative for a single
transaction in the relevant market at the
relevant time. LIBOR for the initial
Interest Accrual Period is 3.03513%.
"Liquidation Expenses" means reasonable and direct expenses
incurred
by the Special Servicer on behalf of the
Trust in connection with the
liquidation of any Specially Serviced
Mortgage Loan or REO Property acquired in
respect thereof including, without
limitation, reasonable legal fees and
expenses in connection with a closing,
brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage
Loan. All Liquidation Expenses
relating to disposition of the Specially
Serviced Mortgage Loan shall be (i)
paid out of income from the related REO
Property, to the extent available, (ii)
paid out of related proceeds from
liquidation or (iii) advanced by the Master
Servicer or the Special Servicer, subject
to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.0%
and
(y) the Liquidation Proceeds received in
connection with a final disposition of
a Specially Serviced Mortgage Loan or REO
Property or portion thereof and any
Condemnation Proceeds and
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Insurance Proceeds received by the Trust
(net of any expenses incurred by the
Special Servicer on behalf of the Trust in
connection with the collection of
such Condemnation Proceeds and Insurance
Proceeds) other than Liquidation
Proceeds, Condemnation Proceeds or
Insurance Proceeds received in connection
with any Non-Serviced Mortgage Loan. For
the avoidance of doubt, a Liquidation
Fee will be payable in connection with a
repurchase of an A Note by the holder
of the related B Note only to the extent
set forth in the related Intercreditor
Agreement.
"Liquidation Proceeds" means proceeds from the sale or
liquidation
(provided that for the purposes of
calculating Liquidation Fees hereunder,
Liquidation Proceeds shall not include any
proceeds from a repurchase of a
Mortgage Loan by a Seller due to a Material
Breach of a representation or
warranty or Material Document Defect) of a
Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note or related REO
Property (net of Liquidation Expenses)
and with respect to the sale or liquidation
of any REO Property related to any
Non-Serviced Mortgage Loan and Non-Serviced
Companion Mortgage Loan, any portion
of such amounts allocable to the related
Non-Serviced Mortgage Loan.
"Liquidation Realized Loss" means, with respect to each
Mortgage
Loan or REO Property, as the case may be,
as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal
to the sum, without duplication, of
(A) the Principal Balance (as increased by
any Unliquidated Advance with respect
to such Mortgage Loan) of the Mortgage Loan
(or such deemed Principal Balance,
in the case of an REO Mortgage Loan) as of
the date of the Cash Liquidation or
REO Disposition (adjusted in accordance
with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at
the applicable Mortgage Rate (including
interest accrued and unpaid on the portion
of the Principal Balance added in
accordance with Section 6.6(c)(i), which
interest shall accrue from the date of
the reduction in the Principal Balance
resulting from the allocation of a
Realized Loss incurred pursuant to Section
6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses,
unpaid Servicing Advances and unpaid
Advance Interest) incurred in connection
with such Mortgage Loan that have been
paid or are payable or reimbursable to any
Person, other than amounts included
in the definition of Liquidation Expenses
and amounts previously treated as
Expense Losses attributable to principal
(and interest thereon) minus the sum of
(i) REO Income applied as recoveries of
principal or interest on the related
Mortgage Loan or REO Property, and (ii)
Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, Late
Collections and all other amounts recovered
from the related Mortgagor and received
during the Collection Period in which
such Cash Liquidation or REO Disposition
occurred and which are not required
under any Intercreditor Agreement, any Loan
Pair Intercreditor Agreement or
Non-Serviced Mortgage Loan Intercreditor
Agreement to be payable or reimbursable
to any holder of a B Note, a Serviced
Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income and
Liquidation Proceeds shall be applied
first to reimburse the Master Servicer, the
Special Servicer, the Trustee and
the Fiscal Agent, as applicable, to the
extent that Section 5.2(a)(I) otherwise
entitles such party to reimbursement, for
any Nonrecoverable Advance with
respect to the related Mortgage Loan, and
then for all Workout-Delayed
Reimbursement Amounts with respect to such
related Mortgage Loan (but not any
such amount that has become Unliquidated
Advances), and any remaining REO Income
and Liquidation Proceeds and any
Condemnation Proceeds and Insurance Proceeds
shall be applied first against any
Additional Trust Expenses (to the extent not
included in the definition of Liquidation
Expenses) for such Mortgage Loan, next
as a recovery of any Nonrecoverable Advance
(and interest thereon) with respect
to such Mortgage Loan previously paid from
principal collections pursuant to
Section 5.2(a)(II), next to
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any Unliquidated Advances with respect to
such Mortgage Loan, next to the unpaid
interest on the Mortgage Loan, calculated
as described in clause (B) above, and
then against the Principal Balance of such
Mortgage Loan, calculated as
described in clause (A) above.
"Loan Pair" means a Serviced Pari Passu Mortgage Loan and the
related Serviced Companion Mortgage Loan,
collectively. There are no Serviced
Pari Passu Mortgage Loans in the Trust and
therefore no Loan Pairs related to
the Trust.
"Loan Pair Intercreditor Agreement" means, with respect to a
Loan
Pair, the related intercreditor agreement
by and between the holders of the
related Serviced Pari Passu Mortgage Loan
and the related Serviced Companion
Mortgage Loan relating to the relative
rights of such holders, as the same may
be further amended from time to time in
accordance with the terms thereof.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which
is the Principal Balance of such Mortgage
Loan at the date of determination and
the denominator of which is the value of
the Mortgaged Property as shown on the
most recent Appraisal or valuation of the
Mortgaged Property which is available
as of such date or, in the case of any
Non-Serviced Mortgage Loan or Loan Pair,
the allocable portion thereof.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan,
any
lock-box agreement relating to such
Mortgage Loan among the related Mortgagor, a
depositary institution and the Master
Servicer (or the Primary Servicer or
Sub-Servicer on its behalf) pursuant to
which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"Luxembourg Paying Agent" has the meaning set forth in Section
7.18.
"Luxembourg Transfer Agent" has the meaning set forth in
Section
7.18.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means Wells Fargo Bank, National Association
and
its permitted successors or assigns.
"Master Servicer Consent Matters" has the meaning set forth in
Section 8.3(a).
"Master Servicer Indemnified Parties" has the meaning set forth
in
Section 8.25(a).
"Master Servicer Losses" has the meaning set forth in Section
8.25(a).
"Master Servicer Remittance Date" means, for each Distribution
Date,
the Business Day immediately preceding such
Distribution Date.
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"Master Servicer Remittance Report" means a report prepared by
the
Master Servicer and in such media as may be
agreed upon by the Master Servicer
and the Paying Agent containing such
information regarding the Mortgage Loans as
will permit the Paying Agent to calculate
the amounts to be distributed to the
Certificateholders pursuant to this
Agreement and to furnish the Monthly
Certificateholders Report to
Certificateholders required to be delivered
hereunder and containing such additional
information as the Master Servicer, the
Paying Agent and the Depositor may from
time to time mutually agree.
"Master Servicer's Floating Rate Account" has the meaning set
forth
in Section 5.3(c).
"Master Servicing Fee" means for each calendar month, as to
each
Mortgage Loan, Serviced Companion Mortgage
Loan and B Note (including REO
Mortgage Loans and Defeasance Loans) but
not as to any Non-Serviced Mortgage
Loan (as to which there is no Master
Servicing Fee payable to the Master
Servicer under this Trust), an amount equal
to the Master Servicing Fee Rate
applicable to such month (determined in the
same manner (other than the rate of
accrual) as the applicable Mortgage Rate is
determined for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note
for such month) multiplied by the
Scheduled Principal Balance of such
Mortgage Loan, Serviced Companion Mortgage
Loan or B Note immediately before the Due
Date occurring in such month, subject
to reduction in respect of Compensating
Interest, as set forth in Section
8.10(c). Notwithstanding the foregoing, no
Master Servicing Fee shall be payable
with respect to the Fox Hill Run B Note or
otherwise be allocable to such B Note
or the Trust.
"Master Servicing Fee Rate" means, with respect to each
Mortgage
Loan (including the Waikele Center Pari
Passu Loan), Serviced Companion Mortgage
Loan and B Note (including any Mortgage
Loan relating to an REO Property), the
rate per annum specified as such on the
Mortgage Loan Schedule. With respect to
a Non-Serviced Mortgage Loan (other than
the Waikele Center Pari Passu Loan), no
Master Servicing Fee Rate is charged by the
Master Servicer, but the Pari Passu
Loan Servicing Fee Rate is charged by the
applicable Non-Serviced Mortgage Loan
Master Servicer pursuant to the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement. Notwithstanding the
foregoing, no Master Servicing Fee
shall be payable with respect to the Fox
Hill Run B Note or otherwise be
allocable to such B Note or the Trust.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan,
Serviced
Companion Mortgage Loan or B Note as of any
date of determination, the date on
which the last payment of principal is due
and payable thereunder, after taking
into account all Principal Prepayments
received and any Deficient Valuation,
Debt Service Reduction Amount or
modification of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note occurring
prior to such date of determination,
but without giving effect to (i) any
acceleration of the principal of such
Mortgage Loan, Serviced Companion Mortgage
Loan or B Note or (ii) any grace
period permitted by such Mortgage Loan, B
Note or Serviced Companion Mortgage
Loan.
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"MERS" means Mortgage Electronic Registration Systems, Inc.
"Modification Fee" means a fee, if any, collected from a
Mortgagor
by the Master Servicer in connection with a
modification of any Mortgage Loan
(other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B
Note other than a Specially Serviced
Mortgage Loan or collected in connection
with a modification by the Special Servicer
of a Specially Serviced Mortgage
Loan.
"Modification Loss" means, with respect to each Mortgage Loan, (i)
a
decrease in the Principal Balance of such
Mortgage Loan as a result of a
modification thereof in accordance with the
terms hereof, (ii) any expenses
connected with such modification, to the
extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer
and (y) not recovered from the
Mortgagor or (iii) in the case of a
modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the
excess, on each Due Date, of the amount
of interest that would have accrued at a
rate equal to the original Mortgage
Rate, over interest that actually accrued
on such Mortgage Loan during the
preceding Collection Period.
"Money Term" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the
Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment
frequency thereof or any provision thereof
requiring the payment of a prepayment
premium, yield maintenance charge or
percentage premium in connection with a
principal prepayment (and shall not
include late fees or default interest
provisions).
"Monthly Certificateholders Report" means a report provided
pursuant
to Section 5.4 by the Paying Agent monthly
as of the related Determination Date
generally in the form and substance of
Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any,
of such distributions to the holders
of each Class of Principal Balance
Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the
amount of such distribution to holders of
each Class of Certificates allocable to (A)
interest accrued (including Excess
Interest) at the respective Pass-Through
Rates, less any Net Aggregate
Prepayment Interest Shortfalls and (B)
Prepayment Premiums (including Prepayment
Premiums distributed in respect of the
Class A-4FL Regular Interest and paid to
the Swap Counterparty); (iii) the number of
outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled
Principal Balance of the Mortgage
Loans at the close of business on such
Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of
Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C)
delinquent 90 or more days, (D) as to which
foreclosure proceedings have been
commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with
respect to any REO Property included
in the Trust, the Principal Balance of the
related Mortgage Loan as of the date
of acquisition of the REO Property and the
Scheduled Principal Balance thereof;
(vi) as of the related Determination Date
(A) as to any REO Property sold during
the related Collection Period, the date of
the related determination by the
Special Servicer that it has recovered all
payments which it expects to be
finally recoverable and the amount of the
proceeds of such sale deposited into
the Certificate Account, and (B) the
aggregate amount of other revenues
collected by the Special Servicer with
respect to each REO Property during the
related Collection Period and credited to
the Certificate Account, in each case
identifying such REO Property by the loan
number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or
Notional Amount, as the case may be,
of each Class of Certificates before and
after giving effect to the distribution
made on such Distribution Date; (viii) the
aggregate amount of
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Principal Prepayments made during the
related Collection Period; (ix) the
Pass-Through Rate applicable to each Class
of Certificates for such Distribution
Date; (x) the aggregate amount of the
Master Servicing Fee, the Primary
Servicing Fee, the Special Servicing Fee,
the Excess Servicing Fees and the fees
paid to the applicable Non-Serviced
Mortgage Loan Master Servicer and the
Non-Serviced Mortgage Loan Special Servicer
solely as such fees relate to the
Non-Serviced Mortgage Loans; (xi) the
amount of Unpaid Interest and Realized
Losses, if any, incurred with respect to
the Mortgage Loans, including a
breakout by type of such Realized Losses;
(xii) the aggregate amount of
Servicing Advances and P&I Advances
outstanding separately stated that have been
made by the Master Servicer, the Special
Servicer, the Trustee and the Fiscal
Agent and the aggregate amount of Servicing
Advances and P&I Advances made by
the applicable Non-Serviced Mortgage Loan
Master Servicer and Non-Serviced
Mortgage Loan Special Servicer in respect
of the Non-Serviced Mortgage Loans;
(xiii) the amount of any Appraisal
Reductions effected during the related
Collection Period on a loan-by-loan basis
and the total Appraisal Reductions in
effect as of such Distribution Date (and in
the case of the Non-Serviced
Mortgage Loans, the amount of any appraisal
reductions effected under the
related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement); (xiv) the
amounts received in respect of the Swap
Contract or the amounts paid in respect
of the Swap Contract and, if any of such
amounts are less than the full amount
required to be paid under the Swap
Contract, the amount of the shortfall; (xv)
the identification of any Rating Agency
Trigger Event or Swap Default as of the
close of business on the last day of the
immediately preceding calendar month
with respect to the Swap Contract
(including, if applicable, the notice required
by Section 6.12); (xvi) the amount of any
(x) payment by the Swap Counterparty
as a termination payment, (y) payment to
any successor interest rate swap
counterparty to acquire a replacement
interest rate swap agreement, and (z)
collateral posted in connection with any
Rating Agency Trigger Event; and (xvii)
the amount of and identification of any
payments on the Class A-4FL Certificates
in addition to the amount of principal and
interest due thereon, such as any
payment received in connection with the
Swap Contract or any payment of a
Prepayment Premium after the termination of
the Swap Contract that is required
to be distributed on the Class A-4FL
Certificates pursuant to the terms of this
Agreement. In the case of information
furnished pursuant to subclauses (i), (ii)
and (xi) above, the amounts shall be
expressed in the aggregate and as a dollar
amount per $1,000 of original principal
amount of the Certificates for all
Certificates of each applicable Class.
"Moody's" means
Moody's Investors
Service Inc. or its
successor
in interest.
"Mortgage" means the mortgage, deed of trust or other
instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the
order of LaSalle Bank National
Association, as Trustee for Bear Stearns
Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP18, without
recourse, representation or warranty" or if
the original Mortgage Note is not
included therein, then a lost note
affidavit with a copy of the Mortgage Note
attached thereto;
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(ii) the original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a
power of attorney, a certified true
copy of the power of attorney certified by
the public recorder's office, with
evidence of recording thereon (if recording
is customary in the jurisdiction in
which such power of attorney was executed)
or certified by a title insurance
company or escrow company to be a true copy
thereof; provided that if such
original Mortgage cannot be delivered with
evidence of recording thereon on or
prior to the 45th 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, the Depositor shall
deliver or cause to be delivered to the
Trustee 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 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;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation
and extension agreements, if any,
with evidence of recording thereon (which
are reflected in the Mortgage Loan
Schedule), or if such original
modification, consolidation and extension
agreements have been delivered to the
appropriate recording office for
recordation and either have not yet been
returned on or prior to the 45th day
following the Closing Date with evidence of
recordation thereon or have been
lost after recordation, true copies of such
modifications, consolidations and
extensions certified by the applicable
Seller together with (A) in the case of a
delay caused by the public recording
office, an Officer's Certificate of the
applicable Seller stating that such
original modification, consolidation or
extension agreement has been dispatched or
sent to the appropriate public
recording official for recordation or (B)
in the case of an original
modification, consolidation or extension
agreement that has been lost after
recordation, a certification by the
appropriate county recording office where
such document is recorded that such copy is
a true and complete copy of the
original recorded modification,
consolidation or extension agreement, and the
originals of all assumption agreements, if
any;
(iv) an original Assignment of Mortgage for each Mortgage Loan,
in
form and substance acceptable for
recording, signed by the holder of record in
blank or in favor of "LaSalle Bank National
Association, as Trustee for Bear
Stearns Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP18"; provided,
if the related Mortgage has been
recorded in the name of MERS or its
designee, no Assignment of Mortgage in favor
of the Trustee will be required to be
recorded or delivered and instead, the
applicable 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 that
it is shown as, the owner of the related
Mortgage on the record of MERS for
purposes of the system of recording
transfers of beneficial ownership of
mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage
(except
with respect to any Mortgage that has been
recorded in the name of MERS or its
designees), if any, with evidence of
recording thereon or, if such original
assignments of Mortgage have been delivered
to the appropriate recorder's office
for recordation, certified true copies of
such assignments of Mortgage certified
by the applicable Seller, or in the case of
an original blanket intervening
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assignment of Mortgage retained by the
applicable Seller, a copy thereof
certified by the applicable Seller or, if
any original intervening assignment of
Mortgage has not yet been returned on or
prior to the 45th day following the
Closing Date from the applicable recording
office or has been lost, a true and
correct copy thereof, together with (A) in
the case of a delay caused by the
public recording office, an Officer's
Certificate of the applicable Seller
stating that such original intervening
assignment of Mortgage has been sent to
the appropriate public recording official
for recordation or (B) in the case of
an original intervening assignment of
Mortgage that has been lost after
recordation, a certification by the
appropriate county recording office where
such assignment is recorded that such copy
is a true and complete copy of the
original recorded intervening assignment of
Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment
of Leases with evidence of recording
thereon or, if such Assignment of Leases
has not been returned on or prior to
the 45th day following the Closing Date
from the applicable public recording
office, a copy of such Assignment of Leases
certified by the applicable Seller
to be a true and complete copy of the
original Assignment of Leases submitted
for recording, together with (A) an
original of each assignment of such
Assignment of Leases with evidence of
recording thereon and showing a complete
recorded chain of assignment from the named
assignee to the holder of record,
and if any such assignment of such
Assignment of Leases has not been returned
from the applicable public recording
office, a copy of such assignment certified
by the applicable Seller to be a true and
complete copy of the original
assignment submitted for recording, and (B)
an original assignment of such
Assignment of Leases, in recordable form,
signed by the holder of record in
favor of "LaSalle Bank National
Association, as Trustee for Bear Stearns
Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP18," which
assignment may be effected in the
related Assignment of Mortgage; provided,
if the related Assignment of Leases
has been recorded in the name of MERS or
its designee, no assignment of
Assignment of Leases in favor of the
Trustee will be required to be recorded or
delivered and instead, the applicable
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 that it is
shown as, the owner of the related
Assignment of Leases on the record of MERS
for purposes of the system of
recording transfers of beneficial ownership
of mortgages maintained by MERS;
(vii) the original of each guaranty, if any, constituting
additional
security for the repayment of such Mortgage
Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not
been issued, an original binder or
actual title commitment or a copy thereof
certified by the title company with
the original Title Insurance Policy to
follow within 180 days of the Closing
Date or a preliminary title report with an
original Title Insurance Policy to
follow within 180 days of the Closing
Date;
(ix) (A) UCC financing statements (together with all
assignments
thereof) and (B) UCC-2 or UCC-3 financing
statements to the Trustee duly
authorized and executed and delivered in
connection with the Mortgage Loan;
provided, if the related Mortgage has been
recorded in the name of MERS or its
designee, no such UCC-2 or UCC-3 financing
statements will be required to be
recorded or delivered and instead, the
applicable Seller shall take all actions
as are necessary to cause the Trustee to be
shown as, and the Trustee shall take
all actions
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necessary to confirm that it is shown as,
the owner of the related UCC financing
statements on the record of MERS for
purposes of the system of recording
transfers of beneficial ownership of
mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to
any
Mortgage Loan where the Mortgagor is the
lessee under such ground lease and
there is a lien in favor of the mortgagee
in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including,
without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan
Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy
(that is, not the original) of the
mortgage note evidencing the related
Serviced Companion Mortgage Loan and B
Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such
Mortgage Loan, which shall be
assigned and delivered to the Trustee on
behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master
Servicer), and applied, drawn,
reduced or released in accordance with
documents evidencing or securing the
applicable Mortgage Loan, this Agreement
and the Primary Servicing Agreement or
(B) the original of each letter of credit,
if any, constituting additional
collateral for such Mortgage Loan, which
shall be held by the Primary Servicer
(or the Master Servicer) on behalf of the
Trustee, with a copy to be held by the
Trustee, and applied, drawn, reduced or
released in accordance with documents
evidencing or securing the applicable
Mortgage Loan, this Agreement and the
Primary Servicing Agreement (it being
understood that each Seller has agreed (a)
that the proceeds of such letter of credit
belong to the Trust, (b) to notify,
on or before the Closing Date, the bank
issuing the letter of credit that the
letter of credit and the proceeds thereof
belong to the Trust, and to use
reasonable efforts to obtain within 30 days
(but in any event to obtain within
90 days) following the Closing Date, an
acknowledgement thereof by the bank
(with a copy of such acknowledgement to be
sent to the Trustee) or a reissued
letter of credit and (c) to indemnify the
Trust for any liabilities, charges,
costs, fees or other expenses accruing from
the failure of the Seller to assign
all rights in and to the letter of credit
hereunder including the right and
power to draw on the letter of credit). In
the case of clause (B) above, the
Primary Servicer (and the Master Servicer)
acknowledges that any letter of
credit held by it shall be held in its
capacity as agent of the Trust, and if
the Primary Servicer (or Master Servicer)
sells its rights to service the
applicable Mortgage Loan, the Primary
Servicer (or Master Servicer) will assign
the applicable letter of credit to the
Trust or at the direction of the Special
Servicer (with respect to any Specially
Serviced Mortgage Loan) to such party as
the Special Servicer may instruct, in each
case, at the expense of the Primary
Servicer (or Master Servicer). The Primary
Servicer (or Master Servicer) shall
indemnify the Trust for any loss caused by
the ineffectiveness of such
assignment;
(xiii) the original environmental indemnity agreement, if any,
related to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged
Properties
operated as hotels and for all Mortgaged
Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to
or greater than $20,000,000;
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(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of
the
related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan, the preceding
document delivery requirements will be met
by the delivery by the Depositor of
copies of the documents specified above
(other than the Mortgage Notes (and all
intervening endorsements) respectively
evidencing such Non-Serviced Mortgage
Loan with respect to which the originals
shall be required), including a copy of
such Non-Serviced Mortgage Loan
Mortgage.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and
all
amendments and modifications thereof,
identified on the Mortgage Loan Schedule,
as amended from time to time, provided that
the term "Mortgage Loan" shall
include any Defeasance Loan and any
Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage
Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note
(but shall not include the related B
Note) and (ii) any Loan Pair, shall include
the Serviced Pari Passu Mortgage
Loan (but shall not include the related
Serviced Companion Mortgage Loan).
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase
Agreement II, Mortgage Loan Purchase
Agreement III or Mortgage Loan Purchase
Agreement IV, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain
Mortgage
Loan Purchase Agreement between BSCMI and
the Depositor dated as of April 19,
2005 with respect to the BSCMI Loans, a
form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain
Mortgage
Loan Purchase Agreement between Wells Fargo
and the Depositor dated as of April
19, 2005 with respect to the Wells Fargo
Loans, a form of which is attached
hereto as Exhibit K-2.
"Mortgage Loan Purchase Agreement III" means that certain
Mortgage
Loan Purchase Agreement between Principal
and the Depositor dated as of April
19, 2005 with respect to the Principal
Loans, a form of which is attached hereto
as Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain
Mortgage
Loan Purchase Agreement between MSMC and
the Depositor dated as of April 19,
2005 with respect to the MSMC Loans, a form
of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively
the
schedule attached hereto as Schedule I,
which identifies each BSCMI Loan, the
schedule attached hereto as Schedule II,
which identifies each Wells Fargo Loan,
the schedule attached hereto as Schedule
III, which identifies each Principal
Loan and the schedule attached hereto as
Schedule IV, which identifies each MSMC
Loan, as such schedules may be amended from
time to time pursuant to Section
2.3.
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<PAGE>
"Mortgage Note" means the note or other evidence of
indebtedness
evidencing the indebtedness of a Mortgagor
under a Mortgage Loan.
"Mortgage Rate" means, for a given Mortgage Loan, Serviced
Companion
Mortgage Loan or B Note, the per annum rate
at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage
Loan or B Note.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the
indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of
an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the
related Serviced Companion Mortgage
Loan.
"Mortgagee" means, with respect to any Mortgage as of any date
of
determination, the mortgagee named therein
as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSCI 2005-TOP17 Certificate Registrar" means the "certificate
registrar" under the MSCI 2005-TOP18
Pooling and Servicing Agreement, which as
of the date hereof is Wells Fargo Bank,
National Association.
"MSCI 2005-TOP17 Depositor" means the "depositor" under the
MSCI
2005-TOP17 Pooling and Servicing Agreement,
which as of the date hereof is
Morgan Stanley Capital I Inc.
"MSCI 2005-TOP17 Fiscal Agent" means the "fiscal agent" under
the
MSCI 2005-TOP17 Pooling and Servicing
Agreement, which as of the date hereof is
ABN AMRO Bank N.V.
"MSCI 2005-TOP17 Master Servicer" means the "master servicer"
under
the MSCI 2005-TOP17 Pooling and Servicing
Agreement, which as of the date hereof
is Wells Fargo Bank, National
Association.
"MSCI 2005-TOP17 Paying Agent" means the "paying agent" under
the
MSCI 2005-TOP18 Pooling and Servicing
Agreement, which as of the date hereof is
Wells Fargo Bank, National Association.
"MSCI 2005-TOP17 Pooling and Servicing Agreement" means the
pooling
and servicing agreement dated as of January
1, 2005 by and between the MSCI
2005-TOP17 Depositor, the MSCI 2005-TOP17
Master Servicer, the MSCI 2005-TOP17
Special Servicer, the MSCI 2005-TOP17
Trustee, the MSCI 2005-TOP17 Paying Agent,
the MSCI 2005-TOP17 Certificate Registrar
and the MSCI 2005-TOP17 Fiscal Agent,
pursuant to which the MSCI 2005-TOP17 Trust
issued its Series 2005-TOP17
Mortgage Pass-Through Certificates.
"MSCI 2005-TOP17 Special Servicer" means the "special servicer"
under the MSCI 2005-TOP17 Pooling and
Servicing Agreement, which as of the date
hereof is ARCap Servicing, Inc.
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<PAGE>
"MSCI 2005-TOP17 Trust" means the trust established pursuant to
the
MSCI 2005-TOP17 Pooling and Servicing
Agreement.
"MSCI 2005-TOP17 Trustee" means the "trustee" under the MSCI
2005-TOP17 Pooling and Servicing Agreement,
which as of the date hereof is
LaSalle Bank National Association.
"MSMC" has the meaning set forth in the Preliminary Statement
hereto.
"MSMC Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan
Purchase Agreement IV and shown on
Schedule IV hereto.
"Net Aggregate Prepayment Interest Shortfall" means for any
Distribution Date, with respect to all
Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if
any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the
sum of (A) the Compensating Interest
to be paid by the Master Servicer on such
Distribution Date and (B) the
aggregate Prepayment Interest Excesses for
such Collection Period for all
Mortgage Loans which are not Specially
Serviced Mortgage Loans.
"Net Swap Payment" has the meaning set forth in Section
8.32(e).
"New Lease" means any lease of any REO Property entered into on
behalf of the Trust, including any lease
renewed or extended on behalf of the
Trust if the Trust has the right to
renegotiate the terms of such lease.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"Nondisqualification Opinion" means a written Opinion of Counsel
to
the effect that a contemplated action (i)
will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that
any Certificates are outstanding nor
cause a "prohibited transaction,"
"prohibited contribution" or any other tax
(other than a tax on "net income from
foreclosure property" permitted to be
incurred under this Agreement) to be
imposed on any REMIC Pool or the Trust and
(ii) will not cause the Class A-4FL Grantor
Trust or the Class P Grantor Trust
to fail to qualify as a grantor trust.
"Noneconomic Residual Interest" means a residual interest that is
a
"noneconomic residual interest" within the
meaning of Treasury Regulation
Section 1.860E-1(c).
"Non-Investment Grade Certificates" means each Class of
Certificates
that, at the time of transfer, is not rated
in one of the four highest generic
rating categories by at least one of Fitch
or Moody's.
"Nonrecoverable Advance" means any of the following: (i) any
Pari
Passu Loan Nonrecoverable Advance
(including interest accrued thereon at the
Advance Rate) and (ii) the portion of any
Advance (including interest accrued
thereon at the Advance Rate) or
Unliquidated Advance (not including interest
thereon) previously made (and, in the case
of an Unliquidated Advance, not
previously reimbursed to the Trust) or
proposed to be made by the Master
Servicer,
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the Special Servicer, the Trustee or the
Fiscal Agent, that, in its respective
sole discretion, exercised in good faith
and, with respect to the Master
Servicer and the Special Servicer, taking
into account the Servicing Standard,
will not be or, in the case of a current
delinquency, would not be, ultimately
recoverable, from Insurance Proceeds,
Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any
other collections) with respect to
the related Mortgage Loan or Serviced
Companion Mortgage Loan (and taking into
consideration any Crossed Mortgage Loans)
(in the case of Servicing Advances) or
B Note (in the case of Servicing Advances)
or REO Property (in the case of P&I
Advances and Servicing Advances), as
evidenced by an Officer's Certificate
delivered pursuant to Section 4.4. Such
Officer's Certificate shall be delivered
to the Trustee (upon which the Trustee may
conclusively rely) or to the
Depositor (if the Trustee or the Fiscal
Agent is delivering such Officer's
Certificate) and (in either case) to the
Special Servicer and the Paying Agent
in the time periods as specified in Section
4.4 and shall include the
information and reports set forth in
Section 4.4. Absent bad faith, the Master
Servicer's determination as to the
recoverability of any Advance shall be
conclusive and binding on the
Certificateholders and, in the case of any B Note
or Serviced Companion Mortgage Loan, the
holder of such B Note or Serviced
Companion Mortgage Loan, as applicable, and
may, in all cases, be relied on by
the Trustee and the Fiscal Agent; provided,
however, that the Special Servicer
may, at its option, make a determination in
accordance with the Servicing
Standard that any P&I Advance or
Servicing Advance, if made, would be a
Nonrecoverable Advance and shall deliver to
the Master Servicer and the Trustee
notice of such determination. Absent bad
faith, any such determination shall be
conclusive and binding on the
Certificateholders, the Master Servicer, the
Trustee and the Fiscal Agent. Absent bad
faith, and pursuant to Section 4.1A of
this Agreement, any determination as to the
recoverability of any advance made
with respect to any Non-Serviced Mortgage
Loan by the Master Servicer or any
Other Master Servicer shall be conclusive
and binding on the Certificateholders
and may, in all cases, be relied on by the
Trustee, the Fiscal Agent and the
Master Servicer. In making any
nonrecoverability determination as described
above, the relevant party shall be entitled
(i) to consider (among other things)
the obligations of the Mortgagor under the
terms of the Mortgage Loan as it may
have been modified, (ii) to consider (among
other things) the related Mortgaged
Properties in their "as is" then-current
conditions and occupancies and such
party's assumptions (consistent with the
Servicing Standard in the case of the
Master Servicer or the Special Servicer)
regarding the possibility and effects
of future adverse change with respect to
such Mortgaged Properties, (iii) to
estimate and consider, consistent with the
Servicing Standard in the case of the
Master Servicer or the Special Servicer
(among other things), future expenses
and (iv) to estimate and consider,
consistent with the Servicing Standard (among
other things), the timing of recovery to
such party. In addition, the relevant
party may, consistent with the Servicing
Standard in the case of the Master
Servicer or the Special Servicer, update or
change its nonrecoverability
determinations at any time in accordance
with the terms hereof and may,
consistent with the Servicing Standard in
the case of the Master Servicer or the
Special Servicer, obtain from the Special
Servicer any analysis, appraisals or
other information in the possession of the
Special Servicer for such purposes.
"Non-Registered Certificate" means unless and until registered
under
the Securities Act, any Class X, Class E,
Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class
O, Class P or Residual Certificate.
"Non-Serviced
Companion Mortgage
Loan" means the
Waikele Center
Companion Loan.
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"Non-Serviced Mortgage
Loan" means the
Waikele Center Pari Passu
Loan.
"Non-Serviced Mortgage Loan Fiscal Agent" means the applicable
"fiscal agent" under the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage Loan Intercreditor Agreement" means,
with
respect to Mortgage Loan No. 4, that
certain co-lender agreement, dated as of
November 30, 2004, by and between the
holders of the Waikele Center Pari Passu
Loan and the Waikele Center Companion Loan,
as the same may be amended from time
to time in accordance with the terms
thereof.
"Non-Serviced Mortgage Loan Master Servicer" means the
applicable
"master servicer" under the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage
Loan Mortgage"
means the Waikele
Center
Mortgage.
"Non-Serviced Mortgage Loan Pooling and Servicing Agreement"
means
the MSCI 2005-TOP17 Pooling and Servicing
Agreement.
"Non-Serviced Mortgage Loan Special Servicer" means the
applicable
"special servicer" under the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage Loan Trustee" means the applicable
"trustee"
under the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement.
"Notional Amount" means, as of any date of determination: (i)
with
respect to all of the Class X Certificates
as a Class, the Class X Notional
Amount as of such date of determination and
(ii) with respect to any Class X
Certificate, the product of the Percentage
Interest evidenced by such
Certificate and the Class X Notional Amount
as of such date of determination.
"Officer's Certificate" means (v) in the case of the Depositor,
a
certificate signed by one or more of the
Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice
President, Vice President or
Assistant Vice President, and by one or
more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant
Secretary of the Depositor, or (w) in
the case of the Master Servicer and the
Special Servicer, any of the officers
referred to above or an employee thereof
designated as a Servicing Officer or
Special Servicing Officer pursuant to this
Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate
signed by a Responsible Officer, (y)
in the case of a Seller, a certificate
signed by one or more of the Chairman of
the Board, any Vice Chairman, any Managing
Director or Director, the President,
or any Executive Vice President, any Senior
Vice President, Vice President,
Second Vice President or Assistant Vice
President and (z) in the case of the
Paying Agent, a certificate signed by a
Responsible Officer, each with specific
responsibilities for the matters
contemplated by this Agreement.
"Operating Adviser" shall mean the Person elected to serve as
the
Operating Adviser pursuant to Section
9.37(a).
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"Opinion of Counsel" means a written opinion of counsel addressed
to
the Trustee and the Paying Agent,
reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who
is not in-house counsel to the party
required to deliver such opinion but who,
in the good faith judgment of the
Trustee and the Paying Agent, is
Independent outside counsel knowledgeable of
the issues occurring in the practice of
securitization with respect to any such
opinion of counsel concerning the taxation,
or status as a REMIC for tax
purposes, of any REMIC Pool or status as a
"grantor trust" under the Code of the
Class A-4FL Grantor Trust or of the Class P
Grantor Trust.
"Option Purchase Price" has the meaning set forth in Section
9.36(b)
hereof.
"Other Advance Report Date" means with respect to a
Non-Serviced
Companion Mortgage Loan or a Serviced
Companion Mortgage Loan, as applicable,
which has been deposited into a commercial
mortgage securitization trust, the
date under the related Other Companion Loan
Pooling and Servicing Agreement that
the related Other Master Servicer is
required (pursuant to the terms thereof) to
make a determination as to whether it will
make a P&I Advance as required under
such Other Companion Loan Pooling and
Servicing Agreement.
"Other Companion Loan Pooling and Servicing Agreement" means
the
MSCI 2005-TOP17 Pooling and Servicing
Agreement or any other pooling and
servicing agreement relating to a
Non-Serviced Companion Mortgage Loan or a
Serviced Companion Mortgage Loan that
creates a commercial mortgage
securitization trust, as applicable.
"Other Master Servicer" means the MSCI 2005-TOP17 Master Servicer
or
any other master servicer under an Other
Companion Loan Pooling and Servicing
Agreement relating to a Non-Serviced
Companion Mortgage Loan or a Serviced
Companion Mortgage Loan, as applicable.
"Other Operating Adviser" has the meaning set forth in Section
9.4(d) hereof.
"Other Pooling and Servicing Agreement" has the meaning set forth
in
Section 9.4(d) hereof.
"Other Securitization" has the meaning set forth in Section
9.4(d)
hereof.
"Other Special Servicer" has the meaning set forth in Section
9.4(d)
hereof.
"Ownership Interest" means, as to any Certificate, any ownership
or
security interest in such Certificate as
the Holder thereof and any other
interest therein, whether direct or
indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean (other than with respect to a
Serviced
Companion Mortgage Loan or a B Note) (i)
with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to
which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due
during the related Collection Period
was not received by the Master Servicer as
of the related Determination Date
(subject to Section 5.1(h)), the portion of
such Scheduled Payment not received;
(ii) with respect to any Mortgage Loan that
is a Balloon Mortgage Loan
(including any REO Property as to which the
related Mortgage Loan provided for a
Balloon Payment) as to which a Balloon
Payment was due during or prior to the
related Collection Period
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but was delinquent, in whole or in part, as
of the related Determination Date,
an amount equal to the excess, if any, of
the Assumed Scheduled Payment for such
Balloon Mortgage Loan for the related
Collection Period, over any Late
Collections received in respect of such
Balloon Payment during such Collection
Period; and (iii) with respect to each REO
Property, an amount equal to the
excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan related
to such REO Property during the related
Collection Period, over remittances of
REO Income to the Master Servicer by the
Special Servicer, reduced by any
amounts required to be paid as taxes on
such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code);
provided, however, that the interest
portion of any Scheduled Payment or Assumed
Scheduled Payment shall be advanced
at a per annum rate equal to the sum of the
REMIC I Net Mortgage Rate relating
to such Mortgage Loan or such REO Mortgage
Loan and the Trustee Fee Rate, such
that the Scheduled Payment or Assumed
Scheduled Payment to be advanced as a P&I
Advance shall be net of the Master
Servicing Fee, the Excess Servicing Fee and
the Primary Servicing Fee; and provided,
further, that the Scheduled Payment or
Assumed Scheduled Payment for any Mortgage
Loan which has been modified shall be
calculated based on its terms as modified
and provided, further, that the
interest component of any P&I Advance
with respect to a Mortgage Loan as to
which there has been an Appraisal Reduction
shall be an amount equal to the
product of (i) the amount of interest
required to be advanced without giving
effect to this proviso and (ii) a fraction,
the numerator of which is the
Principal Balance of such Mortgage Loan as
of the immediately preceding
Determination Date less any Appraisal
Reduction applicable to such Mortgage Loan
(or, in the case of a Non-Serviced Mortgage
Loan or a Serviced Pari Passu
Mortgage Loan, the portion of such
Appraisal Reduction allocable (based upon
their respective Principal Balances) to
such Non-Serviced Mortgage Loan or
Serviced Pari Passu Mortgage Loan under the
related Intercreditor Agreement or
the related Loan Pair Intercreditor
Agreement, or in the case of an A/B Mortgage
Loan, the portion of such Appraisal
Reduction allocable to the A Note pursuant
to the definition of "Appraisal Reduction")
and the denominator of which is the
Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I
Advances for any Mortgage Loans that have
been modified shall be calculated on
the basis of their terms as modified.
"P&I Advance Amount" means, with respect to any Mortgage Loan
or any
REO Property, the amount of the P&I
Advance for each Mortgage Loan computed for
any Distribution Date.
"Pari Passu Loan Nonrecoverable Advance" means any
"Nonrecoverable
Servicing Advance" (as defined in the
related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect
to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the
related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided
that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have
made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the
related Mortgaged Property
generally, the portion thereof attributable
to any Non-Serviced Mortgage Loan
shall be determined based on the
outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari
passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu
basis on the date such advance was made.
"Pari Passu Loan Servicing Fee Rate" means the "Master Servicing
Fee
Rate" (as defined in the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and
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any other servicing fee rate (other than
those payable to the applicable
Non-Serviced Mortgage Loan Special
Servicer) applicable to any Non-Serviced
Mortgage Loan; provided, however, that the
Pari Passu Loan Servicing Fee Rate
for purposes of any Non-Serviced Mortgage
Loan set forth on Schedule XIX as to
which such fee is calculated on a 30/360
basis shall be (a) the related "Master
Servicing Fee Rate" set forth in the
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, multiplied by (b) 30
divided by the actual number of days
in the loan accrual period with respect to
such loan.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the
Clearing Agency effects book-entry
transfers and pledges of securities
deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect
to
any Class of REMIC I Regular Interests,
REMIC II Regular Interests, REMIC
Regular Certificates or Class A-4FL
Certificates, other than the Class A-4FL
Regular Interest, the Class X, Class A-4,
Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates, for the
first Distribution Date, the rate set
forth in the Preliminary Statement hereto,
other than with respect to the Class
A-4FL Certificates, which shall be 3.23513%
(subject to the calculations set
forth in the following sentence). For any
Distribution Date occurring thereafter
(and with respect to the Class A-4FL
Regular Interest, the Class X, Class A-4,
Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates, for
each Distribution Date), the Pass-Through
Rates for (i) the REMIC I Regular
Interests shall equal the REMIC I Net
Mortgage Rate on the related Mortgage Loan
for such Distribution Date, (ii) the REMIC
II Regular Interests shall equal the
Weighted Average REMIC I Net Mortgage Rate
for such Distribution Date, (iii) the
Class A-1, Class A-2, Class A-3 and Class
A-AB Certificates, the fixed rate
corresponding to such Class set forth in
the Preliminary Statement hereto, (iv)
the Class A-4 Certificates shall equal the
lesser of (A) 4.933% per annum and
(B) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date,
(v) the Class A-4FL Certificates, the per
annum rate equal to LIBOR plus 0.20%,
provided, however, that under the
circumstances set forth in Section 6.12
regarding defaults or terminations under
the Swap Contract, the Pass-Through
Rate of the Class A-4FL Certificates shall
equal the Pass-Through Rate of the
Class A-4FL Regular Interest subject to
reduction in accordance with the Swap
Contract, (vi) the Class A-J Certificates
shall equal the lesser of (A) 5.005%
per annum and (B) the Weighted Average
REMIC I Net Mortgage Rate for such
Distribution Date, (vii) the Class B
Certificates shall equal the lesser of (A)
5.035% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such
Distribution Date, (viii) the Class C
Certificates shall equal the lesser of (A)
5.074% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such
Distribution Date, (ix) the Class D
Certificates shall equal the lesser of (A)
5.134% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such
Distribution Date, (x) the Class E
Certificates shall equal the lesser of (A)
5.258% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such
Distribution Date, (xi) the Class F, Class
G and Class H Certificates shall
equal the Weighted Average REMIC I Net
Mortgage Rate corresponding to such Class
for such Distribution Date, (xii) the Class
J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates shall
equal the lesser of (A) 4.706% per
annum and (B) the Weighted Average REMIC I
Net Mortgage Rate for such
Distribution Date, (xiii) the Class X
Certificates shall equal the per annum
rate equal to the quotient of the Accrued
Certificate Interest thereon for such
Distribution Date and the Class X Notional
Amount
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times twelve and (xv) the Class A-4FL
Regular Interest shall equal the lesser of
(A) 4.933% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for
such Distribution Date.
"Paying Agent" means Wells Fargo Bank, National Association and
any
successor or assign, as provided herein.
The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the
Luxembourg Paying Agent shall be
distinct from the duties of the Paying
Agent.
"Paying Agent Fee" means the portion of the Trustee Fee payable
to
the Paying Agent in an amount agreed to
between the Trustee and the Paying
Agent.
"Percentage
Interest" means with respect to each Class of
Certificates other than the Residual
Certificates, the fraction of such Class
evidenced by such Certificate, expressed as
a percentage (carried to four
decimal places and rounded, if necessary),
the numerator of which is the
Certificate Balance or Notional Amount, as
applicable, represented by such
Certificate determined as of the Closing
Date (as stated on the face of such
Certificate) and the denominator of which
is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all
of the Certificates of such Class
determined as of the Closing Date. With
respect to each Residual Certificate,
the percentage interest in distributions
(if any) to be made with respect to the
relevant Class, as stated on the face of
such Certificate.
"Performing Party" has the meaning set forth in Section
8.26(b).
"Permitted Transferee" means any Transferee other than a
Disqualified Organization.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture,
association, joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person who regularly conducts environmental
site assessments in accordance with
then current standards imposed by
institutional commercial mortgage lenders and
who has a reasonable amount of experience
conducting such assessments.
"Placement Agent"
means Bear, Stearns & Co. Inc. and Morgan
Stanley & Co. Incorporated or its
respective successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Planned Principal Balance" means for any Distribution Date,
the
balance shown for such Distribution Date on
Schedule XIII.
"Plan Asset Regulations" means the Department of Labor
regulations
set forth in 29 C.F.R. ss. 2510.3-101.
"Preliminary Prospectus Supplement" has the meaning set forth in
the
Preliminary Statement hereto.
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"Prepayment Interest Excess" means for any Distribution Date and
the
related Collection Period, during which a
full or partial Principal Prepayment
(including payment of a Balloon Payment
other than in connection with the
foreclosure or liquidation of a Mortgage
Loan) is made after the Due Date for
such Mortgage Loan through and including
the last day of the Collection Period,
the amount of interest that accrues on the
amount of such Principal Prepayment
from such Due Date to the date such payment
was made, plus (if made) any payment
by the Mortgagor of interest that would
have accrued to the next succeeding Due
Date (net of the Master Servicing Fee, the
Primary Servicing Fee, the Excess
Servicing Fees, the Special Servicing Fee,
the Trustee Fee and the servicing fee
and trustee fee payable in connection with
any Non-Serviced Mortgage Loan (in
the case of any Non-Serviced Mortgage
Loan), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution Date, a shortfall in the
collection of a full month's interest on
any Mortgage Loan, by reason of a full or
partial Principal Prepayment
(including payment of a Balloon Payment
other than in connection with the
foreclosure or liquidation of a Mortgage
Loan) made during any Collection Period
prior to the Due Date for such Mortgage
Loan in such Collection Period
(including any shortfall resulting from
such a payment during the grace period
relating to such Due Date). The amount of
any Prepayment Interest Shortfall
shall equal the excess of (A) the aggregate
amount of interest which would have
accrued on the Scheduled Principal Balance
of such Mortgage Loan if the Mortgage
Loan had paid on its Due Date and such
Principal Prepayment or Balloon Payment
had not been made (net of the Master
Servicing Fee, the Primary Servicing Fee,
the Excess Servicing Fees, the Special
Servicing Fee, the Trustee Fee and the
servicing fee payable in connection with
any Non-Serviced Mortgage Loan (in the
case of any Non-Serviced Mortgage Loan))
over (B) the aggregate interest that
did so accrue through the date such payment
was made (net of such fees).
"Prepayment Premium" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note
for any Distribution Date, the
prepayment premiums, yield maintenance
charges or percentage premiums, if any,
received during the related Collection
Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note.
"Primary Collateral" means the portion of the Mortgaged
Property
securing the Repurchased Loan or Crossed
Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"Primary Servicer" means Principal Global Investors, LLC and
its
permitted successors and assigns.
"Primary Servicing Agreement" means the agreement between the
Primary Servicer and the Master Servicer,
dated as of April 1, 2005, a form of
which is attached hereto as Exhibit G,
under which the Primary Servicer services
the Mortgage Loans set forth on the
schedule attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to
each
Mortgage Loan, the applicable Primary
Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such
Mortgage Loan immediately before the Due
Date occurring in such month, but
prorated
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for the number of days during the calendar
month for such Mortgage Loan for
which interest actually accrues on such
Mortgage Loan and payable only from
collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the monthly fee payable to
the
Primary Servicer (or the Master Servicer,
as applicable) based on the per annum
rate specified on the Mortgage Loan
Schedule, as more specifically described, in
the case of the Primary Servicer, in the
Primary Servicing Agreement (determined
in the same manner (other than the rate of
accrual) as the applicable Mortgage
Rate is determined for such Mortgage Loan
for such month).
"Principal" has the meaning set forth in the Preliminary
Statement
hereto.
"Principal
Balance" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan, B Note or
REO Mortgage Loan, for purposes of
performing calculations with respect to any
Distribution Date, the principal
balance of such Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or the
related REO Mortgage Loan outstanding as of
the Cut-Off Date after taking into
account all principal and interest payments
made or due on or prior to the
Cut-Off Date (assuming, for any Mortgage
Loan, Serviced Companion Mortgage Loan
or B Note with a Due Date in April 2005
that is not April 1, 2005, that
principal and interest payments for such
month were paid on April 1, 2005),
reduced (to not less than zero) by (i) any
payments or other collections of
amounts allocable to principal with respect
to such Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or any
related REO Mortgage Loan that have been
collected or received during any preceding
Collection Period, other than any
Scheduled Payments due in any subsequent
Collection Period, and (ii) any
Realized Principal Loss incurred in respect
of such Mortgage Loan or related REO
Mortgage Loan during any related Collection
Period.
"Principal Balance Certificates" means, collectively, the Class
A-1,
Class A-2, Class A-3, Class A-AB, Class
A-4, Class A-4FL, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P
Certificates.
"Principal Distribution Amount" means, on any Distribution Date,
the
amount equal to the excess, if any, of
(I) the sum of:
(A) the aggregate (without duplication) of the following:
(i) the principal portion of all Scheduled Payments (other than
the
principal portion of Balloon Payments) and
any Assumed Scheduled Payments, in
each case, to the extent received or
advanced, as the case may be, in respect of
the Mortgage Loans and any REO Mortgage
Loans (but not in respect of any
Serviced Companion Mortgage Loan or B Note
or its successor REO Mortgage Loan)
for their respective Due Dates occurring
during the related Collection Period;
and
(ii) all payments (including Principal Prepayments and the
principal
portion of Balloon Payments but not in
respect of any Serviced Companion
Mortgage Loan or B Note or its respective
successor REO Mortgage Loan) and any
other collections (including
Liquidation
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Proceeds (other than the portion thereof,
if any, constituting Excess
Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase
Proceeds and REO Income) received on or in
respect of the Mortgage Loans during
the related Collection Period and that were
identified and applied by the Master
Servicer as recoveries of principal thereof
in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in
respect of the 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 (or interest thereon) 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)(A) below with respect to
such Distribution Date; and
(C) the aggregate amount of any collections received on or in
respect of the Mortgage Loans during the
related Collection Period that, in each
case, represents a recovery of an amount
previously determined (in a Collection
Period for a prior Distribution Date) to
have been a Nonrecoverable Advance (or
interest thereon) and for which a deduction
was made under clause (II)(B) below
with respect to a prior Distribution Date,
and which are applied pursuant to
Section 6.6(c)(i); over
(II) the sum of:
(A) the aggregate amount of Workout-Delayed Reimbursement
Amounts
(and Advance Interest thereon) that was
reimbursed or paid during the related
Collection Period to one or more of the
Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent from
amounts in the Collection Account
allocable to principal received or advanced
with respect to the Mortgage Loans
pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and
Advance
Interest thereon) that was reimbursed or
paid during the related Collection
Period to one or more of the Master
Servicer, the Special Servicer, the Trustee
and the Fiscal Agent during the related
Collection Period from amounts in the
Collection Account allocable to principal
received or advanced with respect to
the Mortgage Loans pursuant to subsection
(iv) of Section 5.2(a)(II).
"Principal Loans" means, collectively those Mortgage Loans sold
to
the Depositor pursuant to Mortgage Loan
Purchase Agreement III and shown on
Schedule III hereto.
"Principal Prepayment" means any voluntary or involuntary payment
or
collection of principal on a Mortgage Loan,
a Serviced Companion Mortgage Loan
or a B Note which is received or recovered
in advance of its scheduled Due Date
and applied to reduce the Principal Balance
of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note in
advance of its scheduled Due Date,
including, without limitation, all
proceeds, to the extent allocable to
principal, received from the payment of
cash in connection with a substitution
shortfall pursuant to Section 2.3;
provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a
Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"Private Placement Memorandum" means the Private Placement
Memorandum dated April 19, 2005, pursuant
to which the Class X, Class E, Class
F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and
Class P Certificates will be offered for
sale.
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"Prospectus" has the meaning set forth in the Preliminary
Statement
hereto.
"Purchase Price" means, with respect to the purchase by the
Seller
or liquidation by the Special Servicer of
(i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this
Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a
Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a
price equal to the sum (without
duplication) of (A) 100% of the unpaid
Principal Balance of such Mortgage Loan
(or deemed Principal Balance, in the case
of an REO Mortgage Loan), plus (B)
accrued but unpaid interest thereon
calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection
Period in which such purchase or
liquidation occurs, plus (C) the amount of
any expenses related to such Mortgage
Loan and any related Serviced Companion
Mortgage Loan, B Note or REO Property
(including any Servicing Advances and
Advance Interest thereon (which have not
been paid by the Mortgagor or out of Late
Fees or default interest paid by the
related Mortgagor on the related Mortgage
Loan and any related Serviced
Companion Mortgage Loan or B Note) related
to such Mortgage Loan and any related
Serviced Companion Mortgage Loan or B Note,
the amount of any Servicing Advances
(and Advance Interest thereon) that were
reimbursed from principal collections
on the Mortgage Pool pursuant to Section
5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and
all Special Servicing Fees and
Liquidation Fees paid with respect to the
Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are
reimbursable or payable to the
Master Servicer, the Special Servicer, the
Paying Agent, the Trustee, the Fiscal
Agent, any Non-Serviced Mortgage Loan
Master Servicer or any Non-Serviced
Mortgage Loan Special Servicer, plus (D) if
such Mortgage Loan or REO Mortgage
Loan is being repurchased or substituted
for by a Seller pursuant to the related
Mortgage Loan Purchase Agreement, all
expenses reasonably incurred or to be
incurred by the Primary Servicer, the
Master Servicer, the Special Servicer, the
Depositor, the Paying Agent or the Trustee
in respect of the Material Breach or
Material Document Defect giving rise to the
repurchase or substitution
obligation (and that are not otherwise
included in (C) above).
"Purchase Proceeds" means any cash amounts received by the
Master
Servicer in connection with: (i) the
repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to
Section 2.3 or (ii) the purchase of the
Mortgage Loans and REO Properties by the
Depositor, the Master Servicer, the
Special Servicer or the holders of the
Class R-I Certificates pursuant to
Section 10.1(b).
"Qualified Bidder" means (A) as used in section 8.29(c), a
Person
qualified to act as successor Master
Servicer hereunder pursuant to Section
8.22(b) (including the requirement set
forth in Section 8.22(b) that Rating
Agency Confirmation shall have been
obtained from each Rating Agency with
respect to such Person) and (B) as used in
Section 9.31(c), any Person qualified
to act as successor Special Servicer
hereunder pursuant to Section 9.21(b)
(including the requirement set forth in
Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form
each Rating Agency with respect to
such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage
Loan,
Serviced Companion Mortgage Loan or B Note,
an insurance company duly qualified
as such under the
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laws of the state in which the related
Mortgaged Property is located, duly
authorized and licensed in such state to
transact the applicable insurance
business and to write the insurance, but in
no event rated lower than "A" by
Fitch or if not so rated, then Fitch has
issued a Rating Agency Confirmation and
"A2" by Moody's if rated by Moody's or if
not rated by Moody's, then Moody's has
issued a Rating Agency Confirmation, and
(ii) with respect to the Servicer
Errors and Omissions Insurance Policy or
Servicer Fidelity Bond an insurance
company that has a claim paying ability no
lower than "A" by Fitch if rated by
Fitch, or if not rated by Fitch, then rated
A:IX by A.M. Best or as to which
Fitch has issued a Rating Agency
Confirmation, and "A2" by Moody's if rated by
Moody's or if not rated by Moody's, then
Moody's has issued a Rating Agency
Confirmation, or (iii) in either case, a
company not satisfying clause (i) or
(ii) but with respect to which a Rating
Agency Confirmation is obtained.
"Qualified Insurer" shall also mean any
entity that satisfies all of the
criteria, other than the ratings criteria,
set forth in one of the foregoing
clauses and whose obligations under the
related insurance policy are guaranteed
or backed by an entity that satisfies the
ratings criteria set forth in such
clause (construed as if such entity were an
insurance company referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage Loan substituted for a Deleted
Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an
outstanding principal balance, after
deduction of the principal portion of the
Scheduled Payment due in the month of
substitution, not in excess of the
Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the
extent that the principal balance of such
Mortgage Loan is less than the Principal
Balance of the Deleted Mortgage Loan,
then such differential in principal amount,
together with interest thereon at
the Mortgage Rate on the related Mortgage
Loan from the date as to which
interest was last paid through the last day
of the month in which such
substitution occurs, shall be paid by the
party effecting such substitution to
the Master Servicer for deposit into the
Certificate Account, and shall be
treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the
Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not
greater than, and not more than two years
less than, that of the Deleted Mortgage
Loan; (iv) has an original Loan-to-Value
Ratio not higher than that of the Deleted
Mortgage Loan and a current
Loan-to-Value Ratio (equal to the
outstanding principal balance on the date of
substitution divided by its current
Appraised Value) not higher than the current
Loan-to-Value Ratio of the Deleted Mortgage
Loan and has a current Debt Service
Coverage Ratio equal to or greater than the
current Debt Service Coverage Ratio
of the Deleted Mortgage Loan; (v) will
comply with all of the representations
and warranties relating to Mortgage Loans
set forth herein, as of the date of
substitution; (vi) has a Phase I
Environmental Report relating to the related
Mortgaged Property in its Mortgage Files
and such Phase I Environmental Report
does not, in the good faith reasonable
judgment of the Special Servicer,
consistent with the Servicing Standard,
raise material issues that have not been
adequately addressed; (vii) has an
engineering report relating to the related
Mortgaged Property in its Mortgage Files
and such engineering report does not,
in the good faith reasonable judgment of
the Special Servicer, consistent with
the Servicing Standard raise material
issues that have not been adequately
addressed; and (viii) as to which the
Trustee and the Paying Agent have received
an Opinion of Counsel, at the related
Seller's expense, that such Mortgage Loan
is a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4)
of the Code; provided that no Mortgage Loan
may have a Maturity Date after the
date three years prior to the Rated Final
Distribution Date, and provided,
further, that no such Mortgage Loan shall
be substituted for a Deleted Mortgage
Loan unless Rating Agency Confirmation is
obtained, and provided, further that
no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan
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unless the Operating Adviser shall have
approved of such substitution (provided,
however, that such approval of the
Operating Adviser may not be unreasonably
withheld). In the event that either one
mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than
one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then
(A) the Principal Balance referred to
in clause (i) above shall be determined on
the basis of aggregate Principal
Balances and (B) the rates referred to in
clause (ii) above and the remaining
term to stated maturity referred to in
clause (iii) above shall be determined on
a weighted average basis (provided, that
the REMIC I Net Mortgage Rate for any
Qualifying Substitute Mortgage Loan may not
be less than the highest
Pass-Through Rate of any outstanding Class
of Certificates (other than the Class
A-4FL Certificates) or the Class A-4FL
Regular Interest that is not based on, or
subject to a cap equal to, the Weighted
Average REMIC I Net Mortgage Rate).
Whenever a Qualifying Substitute Mortgage
Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement,
the party effecting such substitution
shall certify that such Mortgage Loan meets
all of the requirements of this
definition and shall send such
certification to the Paying Agent, which shall
deliver a copy of such certification to the
Special Servicer, the Trustee and
the Operating Adviser promptly, and in any
event within five Business Days
following the Paying Agent's receipt of
such certification.
"Rated Final Distribution Date" means with respect to each
rated
Class of Certificates, the Distribution
Date in February 2042.
"Rating Agencies" means Fitch and Moody's.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating
Agency (or such Rating Agency as is
specified herein) that a proposed action,
failure to act, or other event
specified herein will not in and of itself
result in the withdrawal, downgrade,
or qualification, as applicable, of the
then-current rating assigned by such
Rating Agency to any Class of Certificates
then rated by such Rating Agency,
provided that with respect to any matter
affecting any Serviced Companion
Mortgage Loan, such confirmation shall also
refer to the nationally recognized
statistical rating organizations then
rating the securities representing an
interest in such loan and such rating
organizations' respective ratings of such
securities.
"Rating Agency Trigger Event" means if the Swap Counterparty
Guarantor's long-term rating is not at
least "A-" by Fitch or "A3" by Moody's.
"Realized Interest Loss" means, with respect to each Mortgage
Loan,
(i) in the case of a Liquidation Realized
Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized
Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy
Loss, the portion of such Realized Loss
attributable to accrued interest on the
related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss
resulting in any period from the payment of
the Special Servicing Fee and any Expense
Losses treated as Realized Interest
Losses pursuant to clause (iv) of the
definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a
Modification Loss described in clause
(iii) of the definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a
Modification
Loss, a Bankruptcy Loss or an Expense Loss
with respect to a Mortgage Loan.
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"Realized Principal Loss" means, with respect to each Mortgage
Loan,
(i) in the case of a Liquidation Realized
Loss, the amount of such Liquidation
Realized Loss, to the extent that it does
not exceed the Principal Balance (plus
the amount of any Unliquidated Advance with
respect to such Mortgage Loan) of
the Mortgage Loan (or deemed Principal
Balance, in the case of REO Property),
(ii) in the case of a Modification Loss,
the amount of such Modification Loss
described in clause (i) of the definition
thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such
Bankruptcy Loss attributable to the
reduction in the Principal Balance of the
related Mortgage Loan, (iv) in the
case of an Expense Loss, the amount of such
Expense Loss (other than Expense
Losses resulting from the payment of
Special Servicing Fees) to the extent that
such Expense Loss does not exceed amounts
collected in respect of the Mortgage
Loans that were identified as allocable to
principal in the Collection Period in
which such Expense Losses were incurred,
and any such excess shall be treated as
a Realized Interest Loss, (v) the amounts
in respect thereof that are withdrawn
from the Certificate Account pursuant to
Section 6.6(b)(i) and (vi) any
Unliquidated Advance that is determined by
the Master Servicer to be a
Nonrecoverable Advance.
"Record Date" means, (i) with respect to each Class of
Certificates,
other than the Class A-4FL Certificates,
for each Distribution Date, the close
of business on the last Business Day of the
month immediately preceding the
month in which such Distribution Date
occurs and (ii) with respect to the Class
A-4FL Certificates, the Business Day
immediately preceding the related
Distribution Date.
"Recoveries" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan,
a Serviced Companion Mortgage Loan, a
B Note or REO Property following the period
in which a Final Recovery
Determination occurs plus other amounts
defined as "Recoveries" herein.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially in the form set forth in
Exhibit F hereto certifying that a
beneficial owner of an interest in a
Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in
Regulation S).
"Regulation S Global Certificates" means the Regulation S
Permanent
Global Certificates together with the
Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent global Certificate, in
definitive, fully registered form without
interest coupons received in exchange for a
Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect
to
any Class of Certificates offered and sold
outside of the United States in
reliance on Regulation S, a single
temporary global Certificate, in definitive,
fully registered form without interest
coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced
Mortgage
Loan with respect to which (i) three
consecutive Scheduled Payments have been
made (in the case of any such Mortgage
Loan, Serviced Companion Mortgage Loan or
B Note that was modified, based on the
modified terms), or a complete defeasance
shall have occurred, (ii) no other
Servicing Transfer Event has occurred and is
continuing (or with respect to determining
whether
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a Required Appraisal Loan is a
Rehabilitated Mortgage Loan for applying
Appraisal Reductions, no other Appraisal
Event has occurred and is continuing)
and (iii) the Trust has been reimbursed for
all costs incurred as a result of
the occurrence of a Servicing Transfer
Event, such amounts constitute a
Workout-Delayed Reimbursement Amount, or
such amounts have been forgiven. An A
Note shall not constitute a Rehabilitated
Mortgage Loan unless its related B
Note would constitute a Rehabilitated
Mortgage Loan. A B Note shall not
constitute a Rehabilitated Mortgage Loan
unless its related A Note also would
constitute a Rehabilitated Mortgage Loan. A
Serviced Pari Passu Mortgage Loan
shall not constitute a Rehabilitated
Mortgage Loan unless its related Serviced
Companion Mortgage Loan would constitute a
Rehabilitated Mortgage Loan. A
Serviced Companion Mortgage Loan shall not
constitute a Rehabilitated Mortgage
Loan unless its related Serviced Pari Passu
Mortgage Loan also would constitute
a Rehabilitated Mortgage Loan.
"Release Date" means the date 40 days after the later of (i)
the
commencement of the offering of the
Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within
the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess
Interest payable thereon), such amounts
with respect thereto as shall from time to
time be held in the Certificate
Account, the Reserve Account, the
Distribution Account (other than the portion
thereof constituting the Floating Rate
Account or the Excess Interest
Sub-account) and the Interest Reserve
Account, the Insurance Policies (other
than the interests of the holder of any
Serviced Companion Mortgage Loan or B
Note therein) and any REO Properties or
beneficial interests therein (other than
the interests of the holder of any
Non-Serviced Companion Mortgage Loan or any
Serviced Companion Mortgage Loan or B Note
therein), for which a REMIC election
has been made pursuant to Section 12.1(a)
hereof. The Class A-4FL Regular
Interest, the Swap Contract and the
Floating Rate Account shall constitute
assets of the Trust but shall not be a part
of any REMIC Pool formed hereunder.
Excess Interest on the Mortgage Loans and
the Excess Interest Sub-account shall
constitute assets of the Trust but shall
not be a part of any REMIC Pool formed
hereunder. The Non-Serviced Companion
Mortgage Loans and any amounts payable
thereon shall not constitute assets of the
Trust or any REMIC Pool formed
hereunder. No B Note or any amounts payable
thereon shall constitute an asset of
the Trust or any REMIC Pool formed
hereunder. No Serviced Companion Mortgage
Loan or any amounts payable thereon shall
constitute an asset of the Trust or
any REMIC Pool formed hereunder.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests and the Class R-I
Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any
Distribution
Date, as to any REMIC I Regular Interest, a
rate per annum equal to (a) with
respect to any Mortgage Loan that accrues
interest on the basis of a 360-day
year consisting of twelve (12) 30-day
months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account
any increase therein after the
Anticipated Repayment Date in respect of an
ARD Loan or any default interest
rate) as of the Cut-Off Date and without
regard to any modification, waiver or
amendment of the terms thereof following
the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with
respect
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to any Mortgage Loan that accrues interest
on a basis other than a 30/360 basis,
the annualized rate that, when applied to
the Principal Balance of the related
Mortgage Loan (on the day prior to the Due
Date preceding such Distribution
Date) on a 30/360 basis for the related
loan accrual period, yields the amount
of net interest that would have accrued
during the related loan accrual period
assuming a net interest rate equal to the
rate described in clause (a) above,
and assuming an interest accrual basis that
is the same as the actual interest
accrual basis of such Mortgage Loan,
provided that for purposes of this clause
(b), (i) the REMIC I Net Mortgage Rate for
the loan accrual period relating to
the Due Dates in both January (commencing
in 2006) and February (commencing in
2006) in any year that is not a leap year
and in February in any year that is a
leap year, shall be determined net of any
amounts transferred to the Interest
Reserve Account and (ii) the REMIC I Net
Mortgage Rate for the loan accrual
period relating to the Due Date in March
(commencing in 2006) shall be
determined taking into account the addition
of any amounts withdrawn from the
Interest Reserve Account.
"REMIC I Regular Interests" means, collectively, the
uncertificated
interests designated as "regular interests"
in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an
interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled
Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate
equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the
REMIC I Regular Interests and related
amounts in the Distribution Account for
which a REMIC election has been made
pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II
Certificates.
"REMIC II Regular Interest A-1" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-1
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to Aggregate Certificate
Balance of the Class A-2 Certificates, and
which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net
Mortgage Rate.
"REMIC II Regular Interest A-3" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-3
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest A-AB" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-AB
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
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"REMIC II Regular Interest A-4" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-4
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest A-4FL" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-4FL
Certificates, and which has a
Pass-Through Rate equal to the Weighted
Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated
interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class A-J
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest B" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class B
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest C" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class C
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest D" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class D Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class E
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class F Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest G" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class G
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest H" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance
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equal to the Aggregate Certificate Balance
of the Class H Certificates, and
which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class J Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having an initial Certificate
Balance equal to the Aggregate
Certificate Balance of the Class K
Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I
Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class L Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class M Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class N Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class O Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC
II, which shall consist of an
interest having a Certificate Balance equal
to the Aggregate Certificate Balance
of the Class P Certificates, and which has
a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest
A-3, REMIC II Regular Interest A-AB, REMIC
II Regular Interest A-4, REMIC II
Regular Interest A-4FL, REMIC II Regular
Interest A-J, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular
Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular
Interest N, REMIC II Regular Interest O and
REMIC II Regular Interest P.
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"REMIC III" means the segregated pool of assets consisting of
the
REMIC II Regular Interests and related
amounts in the Distribution Account for
which a REMIC election has been made
pursuant to Section 12.1(a) hereof.
"REMIC III
Certificates" has the meaning set forth in the
penultimate paragraph of the Preliminary
Statement hereto.
"REMIC III Regular Interests" means, collectively, the Class
A-1
Certificates, Class A-2 Certificates, Class
A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class
A-4FL Regular Interest, Class A-J
Certificates, Class X Certificates, Class B
Certificates, Class C Certificates,
Class D Certificates, Class E Certificates,
Class F Certificates, Class G
Certificates, Class H Certificates, Class J
Certificates, Class K Certificates,
Class L Certificates, Class M Certificates,
Class N Certificates, Class O
Certificates and the portion of the Class P
Certificates representing the Class
P REMIC Interest that is a "regular
interest" in REMIC III.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section
12.1(a) hereof.
"REMIC Provisions" means 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 final, temporary and
proposed regulations and rulings
promulgated thereunder, as the foregoing
may be in effect from time to time and
taking account, as appropriate, of any
proposed legislation or regulations
which, as proposed, would have an effective
date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class
A-1,
Class A-2, Class A-3, Class A-AB, Class
A-4, Class A-J, Class X, Class B, Class
C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P
Certificates.
"Rent Loss Policy" or "Rent Loss Insurance" means a policy of
insurance generally insuring against loss
of income or rent resulting from
hazards or acts of God.
"Rents from Real Property" means, with respect to any REO
Property,
income of the character described in
Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section
9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or
the
Special Servicer of Liquidation Proceeds
and other payments and recoveries
(including proceeds of a final sale) from
the sale or other disposition of REO
Property.
"REO Income" means, with respect to any REO Property that had
not
been security for an A/B Mortgage Loan or
Loan Pair for any Collection Period,
all income received in connection with such
REO Property during such period less
any operating expenses, utilities, real
estate taxes, management fees, insurance
premiums, expenses for maintenance and
repairs and any other capital expenses
directly related to such REO Property paid
during such period or, with respect
to an REO Property that had been security
for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts described above
received with respect to such REO
Property and
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allocable to the related A Note or Serviced
Pari Passu Mortgage Loan, as
applicable, pursuant to the related
Intercreditor Agreement or Loan Pair
Intercreditor Agreement, as applicable.
With respect to any Non-Serviced
Mortgage Loan (if the applicable
Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property
secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall
comprise only such portion of the foregoing
that is allocable to the holder of such
Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing
any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable
to the holder of the related Serviced
Pari Passu Mortgage or the related A Note,
as applicable, shall be included in
REO Income.
"REO Mortgage Loan" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the
related Mortgaged Property is an REO
Property.
"REO Property" means a Mortgaged Property (or an interest
therein,
if the Mortgaged Property securing any Loan
Pair or the Mortgaged Property
securing an A/B Mortgage Loan has been
acquired by the Trust) acquired by the
Trust through foreclosure, deed-in-lieu of
foreclosure, abandonment or
reclamation from bankruptcy in connection
with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property
under the REMIC Provisions; provided
that a Mortgaged Property that secures a
Non-Serviced Mortgage Loan shall
constitute an REO Property if and when it
is acquired under the related
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement for the benefit of
the Trustee as the holder of such
Non-Serviced Mortgage Loan and of the holder
of the related Non-Serviced Companion
Loan(s) through foreclosure, acceptance of
a deed-in-lieu of foreclosure, abandonment
or reclamation from bankruptcy in
connection with a default or otherwise
treated as foreclosure property under the
REMIC provisions. The Special Servicer
shall not have any obligations with
respect to an REO Property that relates to
a Mortgaged Property that secures a
Non-Serviced Mortgage Loan and all
references to the Special Servicer's
obligations in this Agreement with respect
to "REO Property" shall exclude any
such Mortgaged Property that secures a
Non-Serviced Mortgage Loan.
"Report Date" means the third Business Day before the related
Distribution Date.
"Repurchased Loan" has the meaning set forth in Section 2.3(a).
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a
form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan, Loan Pair or
B
Note as to which an Appraisal Event has
occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal
Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan
shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair
or B Note will cease to be a Required
Appraisal Loan at such time as it is a
Rehabilitated Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by
the
Paying Agent in accordance with the
provisions of Section 5.3, which shall be an
Eligible Account.
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"Residual Certificates" means, with respect to REMIC I, the
Class
R-I Certificates, with respect to REMIC II,
the Class R-II Certificates and with
respect to REMIC III, the Class R-III
Certificates.
"Responsible Officer" means, when used with respect to the
initial
Trustee or the Fiscal Agent, any officer
assigned to the Asset-Backed Securities
Trust Services Group, or with respect to
the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each
with specific responsibilities for
the matters contemplated by this Agreement
and when used with respect to any
successor Trustee, Fiscal Agent or Paying
Agent, any Vice President, Assistant
Vice President, corporate trust officer or
any assistant corporate trust officer
or persons performing similar roles on
behalf of the Trustee, Fiscal Agent or
Paying Agent.
"Restricted Servicer Reports" means the following reports in
CMSA
format (as in effect on the date hereof or
as such formats may be changed from
time to time by the CMSA) in, and
containing substantially the information
contemplated by, the forms attached hereto
as part of Exhibit W prepared by the
Master Servicer (combining reports in such
forms prepared by the Master Servicer
and the Special Servicer (with respect to
Specially Serviced Mortgage Loans and
REO Properties)): (i) a Comparative
Financial Status Report; (ii) without
duplication with Section 8.14, an NOI
Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA
Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch
List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial
File, (vii) a CMSA Special Servicer
Loan File and (vii) a realized loss report
substantially in the form included in
Exhibit W.
"Reverse Sequential Order" means sequentially to the Class P,
Class
O, Class N, Class M, Class L, Class K,
Class J, Class H, Class G, Class F, Class
E, Class D, Class C, Class B, Class A-J and
finally to the Class X and Class A
Senior Certificates (including the Class
A-4FL Certificates or the Class A-4FL
Regular Interest, as applicable), on a pro
rata basis, as described herein.
"Rule 144A"
means Rule 144A under the 1933 Act.
"Rule 144A-IAI Global Certificate" means, with respect to any
Class
of Certificates offered and sold in
reliance on Rule 144A or to certain
Institutional Accredited Investors, a
single, permanent global Certificate, in
definitive, fully registered form without
interest coupons.
"S&P" means Standard & Poor's Rating Services, a division
of The
McGraw-Hill Companies, Inc., or its
successor in interest.
"Sarbanes-Oxley Certification" has the meaning set forth in
Section
8.26(b).
"Scheduled Payment" means each scheduled payment of principal
of,
and/or interest on, a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by
the Mortgagor in accordance with the
terms of the related Mortgage Note,
Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and
interest which were due on or before the
Cut-Off Date, whenever received, and taking
account of any modifications thereof
and the effects of any Debt Service
Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing,
the amount of the Scheduled Payment for
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any Serviced Pari Passu Mortgage Loan or
Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated
without regard to the related Loan Pair
Intercreditor Agreement or the related
Intercreditor Agreement, as applicable.
"Scheduled Principal Balance" means, with respect to any
Mortgage
Loan, Serviced Companion Mortgage Loan,
Loan Pair, B Note or REO Mortgage Loan,
for purposes of performing calculations
with respect to any Distribution Date,
the Principal Balance thereof minus the
aggregate amount of any P&I Advances of
principal previously made with respect to
such Mortgage Loan, Serviced Companion
Mortgage Loan, Loan Pair, B Note or REO
Mortgage Loan.
"Seller" means Principal, Wells Fargo, BSCMI or MSMC as the case
may
be.
"Senior
Certificates" means the Class A Senior and Class X
Certificates.
"Serviced Companion Mortgage Loan" means any and all mortgage
loans
that are serviced under this Agreement, are
not "Mortgage Loans" included in the
Trust, but are paid on a pari passu basis
with a Mortgage Loan included in the
Trust. There are no Serviced Pari Passu
Loans included in the Trust, and
therefore there are no Serviced Companion
Mortgage Loans related to the Trust.
"Serviced Companion Mortgage Loan Custodial Account" means each
of
the custodial sub-account(s) of the
Certificate Account (but which are not
included in the Trust) created and
maintained by the Master Servicer pursuant to
Section 5.1(c) on behalf of the holder of
the related Serviced Companion
Mortgage Loan. Any such sub-account(s)
shall be maintained as a sub-account of
an Eligible Account.
"Serviced Pari Passu Mortgage" means the Mortgage securing a
Serviced Pari Passu Mortgage Loan and its
related Serviced Companion Mortgage
Loan secured by the related Mortgaged
Property.
"Serviced Pari Passu Mortgage Loan" means a Mortgage Loan, that
is
serviced under this Agreement, is a
"Mortgage Loan" included in the Trust and is
paid on a pari passu basis with a Serviced
Companion Mortgage Loan. There are no
Serviced Pari Passu Mortgage Loans in the
Trust.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors
and omissions insurance policy
maintained by the Master Servicer, the
Special Servicer, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may
be, in accordance with Section 8.2,
Section 9.2 and Section 7.17,
respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer
agrees to indemnify the Master
Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, (subject to
standard exclusions) for all losses (less
any deductible) sustained as a result of
any theft, embezzlement, fraud or other
dishonest act on the part of the Master
Servicer's, the Special Servicer's, the
Trustee's, the Fiscal Agent's or the Paying
Agent's, as the case may be,
directors, officers or employees and is
maintained in accordance with Section
8.2, Section 9.2 and Section 7.17,
respectively.
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"Servicer Mortgage File" means copies of the mortgage documents
listed in the definition of "Mortgage File"
relating to a Mortgage Loan and
shall also include, to the extent required
to be (and actually) delivered to the
applicable Seller pursuant to the
applicable Mortgage Loan documents, copies of
the following items: the Mortgage Note, any
Mortgage, the Assignment of Leases
and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan
agreement, any insurance policies or
certificates (as applicable), any property
inspection reports, any financial
statements on the property, any escrow
analysis, any tax bills, any Appraisal, any
environmental report, any
engineering report, any asset summary,
financial information on the
Mortgagor/sponsor and any guarantors, any
letters of credit, any intercreditor
agreement and any Environmental Insurance
Policies.
"Servicing Advance" means any cost or expense of the Master
Servicer, the Special Servicer, the Trustee
or the Fiscal Agent, as the case may
be, designated as a Servicing Advance
pursuant to this Agreement and any other
costs and expenses incurred by the Master
Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as the case
may be, to protect and preserve the
security for such Mortgage Loan and/or (if
applicable) the related Serviced
Companion Mortgage Loan or B Note.
"Servicing
Officer" means, any officer or employee of the Master
Servicer involved in, or responsible for,
the administration and servicing of
the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note whose
name and specimen signature appear on a
list of servicing officers or employees
furnished to the Trustee by the Master
Servicer and signed by an officer of the
Master Servicer, as such list may from time
to time be amended.
"Servicing Standard" means, with respect to the Master Servicer
or
the Special Servicer, as the case may be,
to service and administer the Mortgage
Loans (and any Serviced Companion Mortgage
Loan and B Note but not any
Non-Serviced Mortgage Loan) that it is
obligated to service and administer
pursuant to this Agreement on behalf of the
Trustee and in the best interests of
and for the benefit of the
Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the
related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as
a collective whole (as determined by
the Master Servicer or the Special
Servicer, as the case may be, in its good
faith and reasonable judgment), in
accordance with applicable law, the terms of
this Agreement and the terms of the
respective Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note
(and, in the case of any Loan Pair or any
A Note and B Note, the related Loan Pair
Intercreditor Agreement or the related
Intercreditor Agreement, as applicable)
and, to the extent consistent with the
foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and
usual
in its general mortgage servicing and REO
property management activities on
behalf of third parties or on behalf of
itself, whichever is higher, with
respect to mortgage loans and REO
properties that are comparable to those for
which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled
payments
of principal and interest under the
Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note or, if a
Mortgage Loan, any Serviced Companion
Mortgage Loan or any B Note comes into and
continues in default and if, in the
good faith and reasonable judgment of the
Special
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Servicer, no satisfactory arrangements can
be made for the collection of the
delinquent payments, the maximization of
the recovery of principal and interest
on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in
the case of any A/B Mortgage Loan and its
related B Note or any Loan Pair, the
maximization of the recovery of principal
and interest on such A/B Mortgage Loan
or Loan Pair, as applicable, to the
Certificateholders and the holder of the
related B Note or Serviced Companion
Mortgage Loan, as applicable, all taken as
a collective whole) on a net present value
basis (the relevant discounting of
anticipated collections that will be
distributable to Certificateholders to be
performed at the rate determined by the
Special Servicer but in any event not
less than (i) the related REMIC I Net
Mortgage Rate, in the case of the Mortgage
Loans (other than any A Note or Serviced
Pari Passu Mortgage Loan) or (ii) the
weighted average of the mortgage rates on
the related A Note and B Note, in the
case of any A/B Mortgage Loan, and on the
related Serviced Pari Passu Mortgage
Loan and Serviced Companion Mortgage Loan
in the case of any Loan Pair); and
without regard to: (I) any other
relationship that the Master Servicer or the
Special Servicer, as the case may be, or
any Affiliate thereof may have with the
related Mortgagor; (II) the ownership of
any Certificate or any interest in any
Non-Serviced Companion Mortgage Loan,
Serviced Companion Mortgage Loan, B Note
or any mezzanine loan related to a Mortgage
Loan by the Master Servicer or the
Special Servicer, as the case may be, or
any Affiliate thereof; (III) the Master
Servicer's obligation to make Advances;
(IV) the right of the Master Servicer
(or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof),
as the case may be, to receive
reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or
with respect to any particular
transaction and (V) any obligation of the
Master Servicer (or any Affiliate
thereof) to repurchase any Mortgage Loan
from the Trust.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) any Mortgage Loan
(other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or
B Note as to which a Balloon Payment
is past due, and the Master Servicer has
determined, in its good faith
reasonable judgment in accordance with the
Servicing Standard, that payment is
unlikely to be made on or before the 60th
day succeeding the date the Balloon
Payment was due, or any other payment is
more than 60 days past due or has not
been made on or before the second Due Date
following the Due Date such payment
was due; (ii) any Mortgage Loan (other than
a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note
as to which, to the Master Servicer's
knowledge, the Mortgagor has consented to
the appointment of a receiver or
conservator in any insolvency or similar
proceeding of, or relating to, such
Mortgagor or to all or substantially all of
its property, or the Mortgagor has
become the subject of a decree or order
issued under a bankruptcy, insolvency or
similar law and such decree or order shall
have remained undischarged or
unstayed for a period of 30 days; (iii) any
Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note as to
which the Master Servicer shall have
received notice of the foreclosure or
proposed foreclosure of any other lien on
the Mortgaged Property; (iv) any
Mortgage Loan (other than a Non-Serviced
Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the
Master Servicer has knowledge of a
default (other than a failure by the
related Mortgagor to pay principal or
interest) which in the good faith
reasonable judgment of the Master Servicer
materially and adversely affects the
interests of the Certificateholders or the
holder of any related Serviced Companion
Mortgage Loan or B Note and which has
occurred and remains unremedied for the
applicable grace period specified in
such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any
Mortgage Loan (other than a Non-Serviced
Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the
Mortgagor
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admits in writing its inability to pay its
debts generally as they become due,
files a petition to take advantage of any
applicable insolvency or
reorganization statute, makes an assignment
for the benefit of its creditors or
voluntarily suspends payment of its
obligations; and (vi) any Mortgage Loan
(other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B
Note as to which, in the good faith
reasonable judgment of the Master Servicer,
(a) (other than with respect to any A/B
Mortgage Loan) a payment default is
imminent or is likely to occur within 60
days, or (b) any other default is
imminent or is likely to occur within 60
days and such default, in the judgment
of the Master Servicer, is reasonably
likely to materially and adversely affect
the interests of the Certificateholders or
the holder of any related Serviced
Companion Mortgage Loan or B Note (as the
case may be); provided, however, that
(1) if the holder of the B Note exercised
its right to cure a monetary default
and a monetary default occurs in the
following month due to the holder of the B
Note's failure to cure, then servicing of
such Mortgage Loan shall be
transferred to the Special Servicer on the
Business Day following the expiration
of the Cure Period (as defined in the
related Intercreditor Agreement) of the
holder of the B Note if the holder of the B
Note does not cure the current
monetary default or (2) if the holder of
the B Note has exercised its right to
cure the number of consecutive monetary
defaults it is permitted to cure under
the related Intercreditor Agreement and a
monetary default occurs in the
following month, then servicing of such
Mortgage Loan shall be transferred to
the Special Servicer at the expiration of
the Mortgagor's grace period for the
current monetary default. If a Servicing
Transfer Event occurs with respect to
an A Note, it shall be deemed to have
occurred also with respect to its related
B Note; provided, however, that if a
Servicing Transfer Event would otherwise
have occurred with respect to an A Note,
but has not so occurred solely because
the holder of the related B Note has
exercised its cure rights under the related
Intercreditor Agreement, then a Servicing
Transfer Event will not occur with
respect to such A/B Mortgage Loan. If a
Servicing Transfer Event occurs with
respect to a B Note, it shall be deemed to
have occurred also with respect to
its related A Note. If a Servicing Transfer
Event occurs with respect to any
Serviced Pari Passu Mortgage Loan, it shall
be deemed to have occurred also with
respect to the related Serviced Companion
Mortgage Loan. If a Servicing Transfer
Event occurs with respect to any Serviced
Companion Mortgage Loan, it shall be
deemed to have occurred also with respect
to the related Serviced Pari Passu
Mortgage Loan. Under the applicable
Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if a Servicing
Transfer Event occurs with respect to any
Non-Serviced Companion Mortgage Loan, it
shall be deemed to have occurred also
with respect to the related Non-Serviced
Mortgage Loan.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an
individual,
whose organizational documents provide
substantially to the effect that it is
formed or organized solely for the purpose
of owning and collecting payments
from Defeasance Collateral for the benefit
of the Trust and which (i) does not
engage in any business unrelated thereto
and the financing thereof; (ii) does
not have any assets other than those
related to its interest in Defeasance
Collateral; (iii) maintains its own books,
records and accounts, in each case
which are separate and apart from the
books, records and accounts of any other
Person; (iv) conducts business in its own
name and uses separate stationery,
invoices and checks; (v) does not guarantee
or assume the debts or obligations
of any other Person; (vi) does not
commingle its assets or funds with those of
any other Person; (vii) transacts business
with affiliates on an arm's length
basis pursuant to written agreements; and
(viii) holds itself out as being a
legal entity, separate and apart from any
other Person, and otherwise complies
with the single-purpose requirements
