EXECUTION COPY
================================================================================
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer and as Lock Up Storage Centers Special
Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as General Special Servicer,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
---------------------------------
$1,765,243,294
Aggregate Initial Certificate Principal Balance
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2005-PWR8
================================================================================
<TABLE>
TABLE OF CONTENTS
---------------
SECTION
PAGE
-------
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01.
Defined
Terms...................................................................................8
SECTION 1.02.
General Interpretive
Principles................................................................77
SECTION 1.03.
Certain Calculations in Respect of the Mortgage
Pool...........................................78
SECTION 1.04.
Cross-Collateralized Mortgage
Loans............................................................80
SECTION 1.05.
Incorporation of Preliminary
Statement.........................................................80
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES;
ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR
INTERESTS,
REMIC III COMPONENTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL
INTEREST,
REMIC III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01.
Conveyance of Pooled Mortgage
Loans............................................................81
SECTION 2.02.
Acceptance of Mortgage Assets by
Trustee.......................................................85
SECTION 2.03.
Certain Repurchases and Substitutions of Pooled
Mortgage Loans by the Pooled Mortgage Loan
Sellers.............................................88
SECTION 2.04.
Representations and Warranties of the
Depositor................................................92
SECTION 2.05.
Representations and Warranties of PAR as a Master
Servicer.....................................93
SECTION 2.06.
Representations and Warranties of WFB as a Master
Servicer.....................................95
SECTION 2.07.
Representations and Warranties of the General Special
Servicer.................................96
SECTION 2.08.
Representations and Warranties of the Lock Up Storage Centers
Special Servicer.................97
SECTION 2.09.
Representations and Warranties of the Certificate
Administrator................................98
SECTION 2.10.
Representations and Warranties of the Tax
Administrator.......................................100
SECTION 2.11.
Representations, Warranties and Covenants of the
Trustee......................................101
SECTION 2.12.
Representations and Warranties of the Fiscal
Agent............................................102
SECTION 2.13.
Creation of REMIC I; Issuance of the REMIC I Regular Interests
and the REMIC I Residual Interest; Certain Matters Involving REMIC
I..........................103
SECTION 2.14.
Conveyance of the REMIC I Regular Interests; Acceptance of the
REMIC I Regular Interests by
Trustee..........................................................105
SECTION 2.15.
Creation of REMIC II; Issuance of the REMIC II Regular Interests
and the REMIC II Residual Interest; Certain Matters Involving REMIC
II........................105
SECTION 2.16.
Conveyance of the REMIC II Regular Interests; Acceptance of
the REMIC II Regular Interests by
Trustee.....................................................107
SECTION 2.17.
Creation of REMIC III; Issuance of the REMIC III Regular Interests,
the
REMIC III Components and the REMIC III Residual Interest; Certain
Matters Involving REMIC
III...................................................................107
SECTION 2.18.
Acceptance of Grantor Trusts; Issuance of the Class V and Class R
Certificates................110
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
General
Provisions............................................................................112
SECTION 3.02.
Collection of Mortgage Loan
Payments..........................................................116
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts......118
SECTION 3.04.
Collection Accounts, Distribution Account, Interest Reserve
Account,
Excess Liquidation Proceeds Account, Companion Note Custodial
Accounts and Subordinate Note Custodial
Accounts..............................................121
SECTION 3.05.
Permitted Withdrawals From the Collection Accounts, the
Distribution
Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account,
the Companion Note Custodial Accounts and the Subordinate Note
Custodial Accounts.............128
SECTION 3.06.
Investment of Funds in the
Accounts...........................................................141
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.................143
SECTION 3.08.
Enforcement of Alienation
Clauses.............................................................147
SECTION 3.09.
Realization Upon Defaulted Serviced Mortgage
Loans............................................150
SECTION 3.10.
Trustee to Cooperate; Release of Mortgage
Files...............................................153
SECTION 3.11.
Master Servicing and Special Servicing Compensation; Interest on
and
Reimbursement of Servicing Advances; Payment of Certain Expenses;
Obligations of the Trustee and the Fiscal Agent Regarding Back-up
Servicing Advances..........155
SECTION 3.12.
Property Inspections; Collection of Financial
Statements......................................163
SECTION 3.13.
Annual Statement as to
Compliance.............................................................164
SECTION 3.14.
Reports by Independent Public
Accountants.....................................................164
SECTION 3.15.
Access to
Information.........................................................................165
SECTION 3.16.
Title to Administered REO Property; REO
Account...............................................166
SECTION 3.17.
Management of Administered REO
Property.......................................................167
SECTION 3.18.
Fair Value Option; Sale of Administered REO Properties;
Sale of the Non-Trust- Serviced Pooled Mortgage
Loan..........................................170
SECTION 3.19.
Additional Obligations of Master Servicers and Special
Servicer...............................176
SECTION 3.20.
Modifications, Waivers, Amendments and
Consents...............................................179
SECTION 3.21.
Transfer of Servicing Between Applicable Master Servicer and
Applicable Special Servicer; Record
Keeping...................................................184
SECTION 3.22.
Sub-Servicing Agreements and the Primary Servicing
Agreements.................................185
SECTION 3.23.
Controlling Class
Representative..............................................................190
SECTION 3.24.
Certain Rights and Powers of the Controlling Class
Representative.............................191
SECTION 3.25.
Replacement of Special
Servicers..............................................................195
SECTION 3.26.
Application of Default
Charges................................................................197
SECTION 3.27.
Certain Rights and Powers of the Lock Up Storage Centers Non-Pooled
Subordinate Noteholder and the Lock Up Storage Centers Controlling
Party......................197
SECTION 3.28.
Certain Rights and Powers of the JL Holdings Portfolio Non-Pooled
Subordinate Noteholder and the JL Holdings Portfolio Controlling
Party........................202
SECTION 3.29.
Certain Matters Regarding the Serviced Mortgage Loans Groups
that include PCF Pooled Mortgage
Loans........................................................202
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions.................................................................................208
SECTION 4.02.
Certificate Administrator Reports; Servicer
Reporting.........................................219
SECTION 4.03.
P&I
Advances..................................................................................228
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses..............................231
SECTION 4.05.
Calculations..................................................................................233
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates..............................................................................234
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates.........................................234
SECTION 5.03.
Book-Entry
Certificates.......................................................................240
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen
Certificates.............................................242
SECTION 5.05.
Persons Deemed
Owners.........................................................................242
SECTION 5.06.
Certification by Certificate
Owners...........................................................242
SECTION 5.07.
Appointment of Authenticating
Agents..........................................................242
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICERS
SECTION 6.01.
Liability of the Depositor, the Master Servicers and the Special
Servicers....................244
SECTION 6.02.
Merger, Consolidation or Conversion of the Depositor,
a Master Servicer or the Special
Servicer.....................................................244
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicers, the
Primary Servicers
and the Special
Servicers.....................................................................244
SECTION 6.04.
Resignation of the Master Servicers and the Special
Servicers.................................246
SECTION 6.05.
Rights of the Depositor and the Trustee in Respect of the
Master Servicers and the Special
Servicers....................................................247
SECTION 6.06.
Master Servicers and Special Servicers May Own
Certificates...................................247
SECTION 6.07.
Certain Matters Relating to the Marquis Apartments Pooled Mortgage
Loan.......................248
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default.............................................................................249
SECTION 7.02.
Trustee to Act; Appointment of
Successor......................................................253
SECTION 7.03.
Notification to
Certificateholders............................................................254
SECTION 7.04.
Waiver of Events of
Default...................................................................254
SECTION 7.05.
Additional Remedies of Trustee Upon Event of
Default..........................................255
ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR AND THE
TAX ADMINISTRATOR
SECTION 8.01.
Duties of the Trustee, the Custodian, the Certificate Administrator
and the Tax
Administrator.....................................................................256
SECTION 8.02.
Certain Matters Affecting the Trustee, the Certificate
Administrator
and the Tax
Administrator.....................................................................257
SECTION 8.03.
The Trustee, the Fiscal Agent, the Certificate Administrator and
the Tax
Administrator not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans........259
SECTION 8.04.
The Trustee, the Fiscal Agent, the Certificate Administrator and
the Tax
Administrator May Own
Certificates............................................................259
SECTION 8.05.
Fees and Expenses of the Trustee, the Certificate Administrator and
the Tax
Administrator; Indemnification of and by the Trustee, the
Certificate Administrator,
the Tax Administrator and the Fiscal
Agent....................................................260
SECTION 8.06.
Eligibility Requirements for the Trustee, the Certificate
Administrator
and the Tax
Administrator.....................................................................261
SECTION 8.07.
Resignation and Removal of the Trustee, the Certificate
Administrator
and the Tax
Administrator.....................................................................262
SECTION 8.08.
Successor Trustee, Certificate Administrator and Tax
Administrator............................263
SECTION 8.09.
Merger or Consolidation of the Trustee, the Certificate
Administrator
or the Tax
Administrator......................................................................264
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee.................................................264
SECTION 8.11.
Appointment of
Custodians.....................................................................265
SECTION 8.12.
Access to Certain
Information.................................................................265
SECTION 8.13.
Appointment of Fiscal
Agent...................................................................267
SECTION 8.14.
Advance Security
Arrangement..................................................................268
SECTION 8.15.
Exchange Act
Reporting........................................................................268
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Pooled Mortgage
Loans.......................271
SECTION 9.02.
Additional Termination
Requirements...........................................................273
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
Tax
Administration............................................................................275
SECTION 10.02.
The Depositor, the Master Servicers, the Special Servicers and the
Fiscal Agent to Cooperate with the Tax
Administrator..........................................278
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment.....................................................................................279
SECTION 11.02.
Recordation of Agreement;
Counterparts........................................................281
SECTION 11.03.
Limitation on Rights of
Certificateholders....................................................281
SECTION 11.04.
Governing
Law.................................................................................282
SECTION 11.05.
Notices.......................................................................................282
SECTION 11.06.
Severability of
Provisions....................................................................282
SECTION 11.07.
Successors and Assigns;
Beneficiaries.........................................................283
SECTION 11.08.
Article and Section
Headings..................................................................283
SECTION 11.09.
Notices to and from the Rating Agencies and the
Depositor.....................................283
SECTION 11.10.
Notices to Controlling Class
Representative...................................................284
SECTION 11.11.
Complete
Agreement............................................................................284
</TABLE>
EXHIBITS
<TABLE>
EXHIBIT A-1
Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2
Form of Class R Certificate
EXHIBIT A-3
Form of Class V Certificate
EXHIBIT B
Letters of Representations Among Depositor, Trustee and Initial
Depositary
EXHIBIT C-1
Form of Master Servicer Request for Release
EXHIBIT C-2
Form of Special Servicer Request for Release
EXHIBIT D
Form of Certificate Administrator Report
EXHIBIT E-1
Form of ARCap Interest on Advance Reconciliation Report
EXHIBIT E-2
Form of ARCap Mortgage Loans Delinquent Report
EXHIBIT E-3
Form of ARCap P&I Advances as of Remittance Date Report
EXHIBIT E-4
Form of Realized Loss Report
EXHIBIT E-5
ARCap Naming Convention for Electronic File Delivery
EXHIBIT E-6
Controlling Class Certificateholder's Reports Checklist
EXHIBIT F-1
Form of Transferor Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2A
Form I of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2B
Form II of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2C
Form of Transferee Certificate for Certain Transfers of Interests
in Rule 144A Global Certificates
EXHIBIT F-2D
Form of Transferee Certificate for Certain Transfers of Interests
in Regulation S Global Certificates
EXHIBIT F-3A
Form of Transferor Certificate for Transfer of the Excess Servicing
Fee Rights
EXHIBIT F-3B
Form of Transferee Certificate for Transfer of the Excess Servicing
Fee Rights
EXHIBIT G-1
Form of Transferee
Certificate in Connection with ERISA
(Non-Registered
Certificates
and
Non-Investment
Grade Certificates Held in Physical Form)
EXHIBIT G-2
Form of Transferee
Certificate in Connection
with ERISA
(Non-Registered
Certificates
Held in Book-Entry
Form)
EXHIBIT H-1
Form of Transfer Affidavit and Agreement for Transfers of Class R
Certificates
EXHIBIT H-2
Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT I-1
Form of Notice and Acknowledgment Concerning Replacement of the
Special Servicer
EXHIBIT I-2
Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J
Form of UCC-1 Financing Statement
EXHIBIT K-1
Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2
Information Request from Prospective Investor
EXHIBIT L
Form of Power of Attorney by Trustee
EXHIBIT M
[Reserved]
EXHIBIT N
Form of Final Certification of Trustee
EXHIBIT O
Form of Defeasance Certification
EXHIBIT P
Copy of Nationwide Primary Servicer Undertaking to Indemnify
-v-
SCHEDULES
SCHEDULE I-A
Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B
Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C
Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D
Schedule of PCF Pooled Mortgage Loans
SCHEDULE I-E
Schedule of Nationwide Pooled Mortgage Loans
SCHEDULE II
Schedule of Exceptions to Mortgage File Delivery (under Section
2.02(a))
SCHEDULE III
Schedule of Designated Sub-Servicers
SCHEDULE IV
Reference Rates
SCHEDULE V
Borrower Third-Party Beneficiaries (under Section 2.03)
SCHEDULE VI
Class A-AB Planned Principal Balances
SCHEDULE VII
Closing Date Deposit Mortgage Loans and Related Closing Date
Deposit Amounts
</TABLE>
-vi-
This Pooling and Servicing Agreement (this "Agreement"), is dated
and
effective as of June 1, 2005, among BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES
INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a Master
Servicer and
as Lock Up Storage Centers Special Servicer, WELLS FARGO BANK,
NATIONAL
ASSOCIATION, as a Master Servicer, ARCAP SERVICING, INC., as
General Special
Servicer, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate
Administrator
and as Tax Administrator, LASALLE BANK NATIONAL ASSOCIATION, as
Trustee, and ABN
AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in
multiple Classes, which in the aggregate will evidence the entire
beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool
of assets consisting of the Pooled Mortgage Loans (exclusive of
certain amounts
payable thereon) and certain other assets as a REMIC for federal
income tax
purposes, and such segregated pool of assets will be designated as
"REMIC I".
The Class R Certificates will represent ownership of (among other
things) the
sole class of "residual interests" in REMIC I for purposes of the
REMIC
Provisions under federal income tax law. The Latest Possible
Maturity Date for
each REMIC I Regular Interest is the Rated Final Distribution Date.
None of the
REMIC I Regular Interests will be certificated.
REMIC II
As provided herein, the Trustee will elect to treat the segregated
pool
of assets consisting of the REMIC I Regular Interests as a REMIC
for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC II". The Class R Certificates will represent ownership of
(among other
things) the sole class of "residual interests" in REMIC II for
purposes of the
REMIC Provisions under federal income tax law. The following table
sets forth
the designation, the REMIC II Remittance Rate and the initial
Uncertificated
Principal Balance for each of the REMIC II Regular Interests. The
Latest
Possible Maturity Date for each REMIC II Regular Interest is the
Rated Final
Distribution Date. None of the REMIC II Regular Interests will be
certificated.
REMIC II
Initial Uncertificated
Designation
Remittance Rate
Principal Balance
-----------
---------------
-----------------
A-1-1
Variable (1)
$
12,406,000
A-1-2
Variable (1)
$
77,093,000
A-1-3
Variable (1)
$
14,801,000
A-2
Variable (1)
$
46,500,000
A-3-1
Variable (1)
$
22,140,000
A-3-2
Variable (1)
$
40,860,000
A-AB-1
Variable (1)
$
39,623,000
A-AB-2
Variable (1)
$
88,377,000
A-4-1
Variable (1)
$
12,345,000
A-4-2
Variable (1)
$
70,740,000
A-4-3
Variable (1)
$ 100,757,000
A-4-4
Variable (1)
$
58,278,000
A-4-5
Variable (1)
$ 778,274,000
A-4FL-1
Variable (1)
$
605,000
A-4FL-2
Variable (1)
$
3,467,000
A-4FL-3
Variable (1)
$
4,937,000
A-4FL-4
Variable (1)
$
2,856,000
A-4FL-5
Variable (1)
$
38,135,000
A-J-1
Variable (1)
$
2,003,000
A-J-2
Variable (1)
$ 148,043,000
B-1
Variable (1)
$
17,245,000
B-2
Variable (1)
$
20,266,000
C-1
Variable (1)
$
9,944,000
C-2
Variable (1)
$
7,709,000
D-1
Variable (1)
$
9,317,000
D-2
Variable (1)
$
17,161,000
E
Variable (1)
$
17,653,000
F-1
Variable (1)
$
16,993,000
F-2
Variable (1)
$
2,866,000
G-1
Variable (1)
$
209,000
G-2
Variable (1)
$
15,237,000
H
Variable (1)
$
17,652,000
J
Variable (1)
$
8,826,000
K
Variable (1)
$
4,413,000
L-1
Variable (1)
$
3,071,000
L-2
Variable (1)
$
3,549,000
M
Variable (1)
$
6,620,000
N
Variable (1)
$
2,206,000
P
Variable (1)
$
4,413,000
Q
Variable (1)
$
17,653,294
--------------------
(1)
The REMIC II Remittance Rate for each REMIC II Regular Interest
shall be a
variable rate per annum calculated in accordance with the
definition of
"REMIC II Remittance Rate".
REMIC III
As provided herein, the Trustee will elect to treat the segregated
pool
of assets consisting of the REMIC II Regular Interests as a REMIC
for federal
income tax purposes, and such segregated pool of assets will be
designated as
-2-
"REMIC III". The Class R Certificates will evidence ownership of
(among other
things) the sole class of "residual interests" in REMIC III for
purposes of the
REMIC Provisions under federal income tax law.
Class Designations of the REMIC III Regular Interests
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each
Class of the
REMIC III Regular Interests.
Class
Initial Class
Designation
Pass-Through Rate
Principal Balance
-----------
-----------------
-----------------
Class A-1
4.212% per annum
$
104,300,000
Class A-2
4.484% per annum
$
46,500,000
Class A-3
4.550% per annum
$
63,000,000
Class A-AB
4.581% per annum
$
128,000,000
Class A-4
4.674% per annum
$
1,020,394,000
Class A-4FL (1)
4.674% per annum (1)
$ 50,000,000 (1)
Class A-J
4.750% per annum
$
150,046,000
Class B
4.819% per annum
$
37,511,000
Class C
4.858% per annum
$
17,653,000
Class D
4.898% per annum
$
26,478,000
Class E
Variable (2)
$
17,653,000
Class F
Variable (2)
$
19,859,000
Class G
Variable (3)
$
15,446,000
Class H
Variable (3)
$
17,652,000
Class J
Variable (2)
$
8,826,000
Class K
Variable (2)
$
4,413,000
Class L
Variable (2)
$
6,620,000
Class M
Variable (2)
$
6,620,000
Class N
Variable (2)
$
2,206,000
Class P
Variable (2)
$
4,413,000
Class Q
Variable (2)
$
17,653,294
Class X-1
Variable (3)
(4)
Class X-2
Variable (3)
(5)
----------------------
(1)
The Class A-4FL Certificates are not regular interests in a REMIC
but
represent ownership of the beneficial interests in Grantor Trust
A-4FL,
which grantor trust comprises (i)(a) an uncertificated regular
interest in
REMIC III hereby designated as the "Class A-4FL REMIC III Regular
Interest", (b) the Class A-4FL Swap Contract and the Class A-4FL
Swap
Guarantee and (c) all net payments under the Class A-4FL REMIC III
Regular
Interest and the Class A-4FL Swap Contract and the Class A-4FL Swap
Guarantee, (ii) all funds and assets on deposit from time to time
in the
Master Servicer Floating Rate Sub-Account and/or the Certificate
Administrator Floating Rate Sub-Account and (iii) the proceeds of
all of
the foregoing. The Pass-Through Rate set forth in the table
opposite Class
A-4FL is the Pass-Through Rate of the Class A-4FL REMIC III Regular
Interest. The initial Class Principal Balance set forth in the
table
opposite the Class A-4FL is the initial Class Principal Balance of
the
Class A-4FL Certificates and of the initial Class Principal Balance
of the
Class A-4FL REMIC III Regular Interest. The parties intend that the
portion
of the Trust representing Grantor Trust A-4FL 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.
(2)
The respective Pass-Through Rates for the Class E, Class F, Class
J, Class
K, Class L, Class M, Class N, Class P and Class Q Certificates
will, in the
case of each of those Classes, be a rate per annum equal to the
lesser of a
fixed rate per annum (equal to 4.997%, 5.312%, 4.431%, 4.431%,
4.431%,
4.431%, 4.431%, 4.431% and 4.431%, respectively) and a variable
rate, all
as calculated in accordance with the definition of "Pass-Through
Rate".
-3-
(3)
The respective Pass-Through Rates for the Class X-1, Class X-2,
Class G and
Class H Certificates will, in the case of each of those Classes, be
a
variable rate per annum calculated in accordance with the
definition of
"Pass-Through Rate".
(4)
The Class X-1 Certificates will not have a Class Principal Balance
and will
not entitle their Holders to receive distributions of principal.
The Class
X-1 Certificates will have a Class Notional Amount which will be
equal to
the aggregate of the Component Notional Amounts of such Class'
REMIC III
Components from time to time. As more specifically provided herein,
interest in respect of such Class of Certificates will consist of
the
aggregate amount of interest accrued on the respective Component
Notional
Amounts of such Class' REMIC III Components from time to time.
(5)
The Class X-2 Certificates will not have a Class Principal Balance
and will
not entitle their Holders to receive distributions of principal. As
more
specifically provided herein, the Class X-2 Certificates will have
a Class
Notional Amount that from time to time will be equal to the
aggregate of
the Component Notional Amounts of one or more of such Class' REMIC
III
Components from time to time. As more specifically provided herein,
interest in respect of such Class of Certificates will consist of
the
aggregate amount of interest accrued from time to time on the
respective
Component Notional Amounts of one or more of such Class' REMIC III
Components.
Designations of the REMIC III Components
The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably assigned the alphanumeric designation set forth under
the column
heading "REMIC III Component of Class X-1 Certificates" in the
table that
appears under "Corresponding REMIC II Regular Interests". The REMIC
III
Components of the Class X-2 Certificates are hereby irrevocably
assigned the
alphanumeric designation set forth under the column heading "REMIC
III Component
of Class X-2 Certificates" in the table that appears under
"Corresponding REMIC
II Regular Interests".
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each
REMIC
II Regular Interest, the Class of Certificates, REMIC III Component
of the Class
X-1 Certificates and the REMIC III Component of the Class X-2
Certificates for
which such REMIC II Regular Interest constitutes a Corresponding
REMIC II
Regular Interest:
-4-
<TABLE>
Class X-2
Termination Date
REMIC III
REMIC III
for REMIC III
REMIC II
Class of
Component of Class
Component of Class
Component of Class
Regular Interest
Certificates
X-1 Certificates
X-2 Certificates
X-2 Certificates
----------------
------------
----------------
----------------
------------
A-1-1
A-1
X1-A-1-1
Not Applicable
Not Applicable
A-1-2
A-1
X1-A-1-2
X2-A-1-2
June 2006
A-1-3
A-1
X1-A-1-3
X2-A-1-3
June 2007
A-2
A-2
X1-A-2
X2-A-2
June 2007
A-3-1
A-3
X1-A-3-1
X2-A-3-1
June 2007
A-3-2
A-3
X1-A-3-2
X2-A-3-2
June 2008
A-AB-1
A-AB
X1-A-AB-1
X2-A-AB-1
June 2008
A-AB-2
A-AB
X1-A-AB-2
X2-A-AB-2
June 2009
A-4-1
A-4
X1-A-4-1
X2-A-4-1
June 2009
A-4-2
A-4
X1-A-4-2
X2-A-4-2
June 2010
A-4-3
A-4
X1-A-4-3
X2-A-4-3
June 2011
A-4-4
A-4
X1-A-4-4
X2-A-4-4
June 2012
A-4-5
A-4
X1-A-4-5
X2-A-4-5
June 2013
A-4FL-1
A-4FL (1)
X1-A-4FL-1
X2-A-4FL-1
June 2009
A-4FL-2
A-4FL (1)
X1-A-4FL-2
X2-A-4FL-2
June 2010
A-4FL-3
A-4FL (1)
X1-A-4FL-3
X2-A-4FL-3
June 2011
A-4FL-4
A-4FL (1)
X1-A-4FL-4
X2-A-4FL-4
June 2012
A-4FL-5
A-4FL (1)
X1-A-4FL-5
X2-A-4FL-5
June 2013
A-J-1
A-J
X1-A-J-1
X2-A-J-1
June 2012
A-J-2
A-J
X1-A-J-2
X2-A-J-2
June 2013
B-1
B
X1-B-1
X2-B-1
June 2011
B-2
B
X1-B-2
X2-B-2
June 2012
C-1
C
X1-C-1
X2-C-1
June 2010
C-2
C
X1-C-2
X2-C-2
June 2011
D-1
D
X1-D-1
X2-D-1
June 2009
D-2
D
X1-D-2
X2-D-2
June 2010
E
E
X1-E
X2-E
June 2009
F-1
F
X1-F-1
X2-F-1
June 2008
F-2
F
X1-F-2
X2-F-2
June 2009
G-1
G
X1-G-1
X2-G-1
June 2007
G-2
G
X1-G-2
X2-G-2
June 2008
H
H
X1-H
X2-H
June 2007
J
J
X1-J
X2-J
June 2007
K
K
X1-K
X2-K
June 2007
L-1
L
X1-L-1
X2-L-1
June 2006
L-2
L
X1-L-2
X2-L-2
June 2007
M
M
X1-M
Not Applicable
Not Applicable
N
N
X1-N
Not Applicable
Not Applicable
P
P
X1-P
Not Applicable
Not Applicable
Q
Q
X1-Q
Not Applicable
Not Applicable
</TABLE>
----------------------
(1)
The applicable REMIC II Regular Interest corresponds not to the
Class A-4FL
Certificates but to the Class A-4FL REMIC III Regular Interest.
-5-
For federal income tax purposes, each Class of the REMIC III
Regular
Interests will be designated as a separate "regular interest" in
REMIC III. The
Latest Possible Maturity Date for each Class of REMIC III Regular
Interests is
the Rated Final Distribution Date.
The Initial Pool Balance will be $1,765,243,294, and the initial
aggregate Uncertificated Principal Balance of the REMIC I Regular
Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II
Regular
Interests and the initial aggregate Class Principal Balance of the
respective
Classes of REMIC III Regular Interests (other than the Class X-1
and Class X-2
Certificates) will, in each case, be $1,765,243,294.
As described below, there exist one or more Pooled Mortgage Loans
that
are part of split loan structures comprising such Pooled Mortgage
Loan and one
or more other loans that, together with the respective Pooled
Mortgage Loan, are
secured by the same Mortgage encumbering the related Mortgaged
Properties, which
other loans are, in each case, pari passu in right of payment to
the related
Pooled Mortgage Loan or subordinate in right of payment to the
related Pooled
Mortgage Loan.
The Lock Up Storage Centers Pooled Mortgage Loan is part of a split
loan structure comprising the Lock Up Storage Centers Pooled
Mortgage Loan and
the Lock Up Storage Centers Non-Pooled Subordinate Loan. The
relative rights of
the holder of the Lock Up Storage Centers Pooled Mortgage Loan and
the holder of
the Lock Up Storage Centers Non-Pooled Subordinate Loan are set
forth in the
Lock Up Storage Centers Intercreditor Agreement, which provides
that the Lock Up
Storage Centers Loan Group is to be serviced and administered in
accordance with
this Agreement, by the Trustee, the Fiscal Agent, the Certificate
Administrator,
the applicable Master Servicer and the Lock Up Storage Centers
Special Servicer.
The Park Place Pooled Mortgage Loan is part of a split loan
structure
comprising the Park Place Pooled Mortgage Loan and the Park Place
Non-Pooled
Subordinate Loan. The relative rights of the holder of the Park
Place Pooled
Mortgage Loan and the holder of the Park Place Non-Pooled
Subordinate Loan are
set forth in the Park Place Intercreditor Agreement, which provides
that the
Park Place Loan Group is to be serviced and administered in
accordance with this
Agreement, by the Trustee, the Fiscal Agent, the Certificate
Administrator, the
applicable Master Servicer and the General Special Servicer.
The JL Holdings Portfolio Pooled Mortgage Loan is part of a split
loan
structure comprising the JL Holdings Portfolio Pooled Mortgage Loan
and the JL
Holdings Portfolio Non-Pooled Mortgage Loans. The relative rights
of the holder
of the JL Holdings Portfolio Pooled Mortgage Loan and the holders
of the JL
Holdings Portfolio Non-Pooled Mortgage Loans are set forth in the
JL Holdings
Portfolio Intercreditor Agreement, which provides that the JL
Holdings Portfolio
Loan Group is to be serviced and administered in accordance with
this Agreement,
by the Trustee, the Fiscal Agent, the Certificate Administrator,
the applicable
Master Servicer and the General Special Servicer.
The The Landings at Cypress Meadows Pooled Mortgage Loan is part of
a
split loan structure comprising the The Landings at Cypress Meadows
Pooled
Mortgage Loan and the The Landings at Cypress Meadows Non-Pooled
Subordinate
Loan. The relative rights of the holder of the The Landings at
Cypress Meadows
Pooled Mortgage Loan and the holder of the The Landings at Cypress
Meadows
Non-Pooled Subordinate Loan are set forth in the The Landings at
Cypress Meadows
Intercreditor Agreement, which provides that the The Landings at
Cypress Meadows
Loan Group is to be serviced and administered in accordance with
this Agreement,
by the Trustee, the Fiscal Agent, the Certificate Administrator,
the applicable
Master Servicer and the General Special Servicer.
The Aspen Highlands Pooled Mortgage Loan is part of a split loan
structure comprising the Aspen Highlands Pooled Mortgage Loan and
the Aspen
Highlands Non-Pooled Subordinate Loan. The relative rights of the
holder of the
Aspen Highlands Pooled Mortgage Loan and the holder of the Aspen
Highlands
Non-Pooled Subordinate Loan are set forth in the Aspen Highlands
Intercreditor
Agreement, which provides that the Aspen Highlands Loan Group is to
be serviced
and administered in accordance with this Agreement, by the Trustee,
the Fiscal
Agent, the Certificate Administrator, the applicable Master
Servicer and the
General Special Servicer.
-6-
The Marquis Apartments Pooled Mortgage Loan is part of a split loan
structure comprising the Marquis Apartments Pooled Mortgage Loan
and the Marquis
Apartments Non-Pooled Pari Passu Companion Loan. The relative
rights of the
holder of the Marquis Apartments Pooled Mortgage Loan and the
holder of the
Marquis Apartments Non-Pooled Pari Passu Companion Loan are set
forth in the
Series 2005-PWR7 PSA and/or the Marquis Apartments Intercreditor
Agreement,
which provide that the entire Marquis Apartments Loan Group is to
be serviced
and administered in accordance with the Series 2005-PWR7 PSA.
The Ramapo Centre Pooled Mortgage Loan is part of a split loan
structure comprising the Ramapo Centre Pooled Mortgage Loan and the
Ramapo
Centre Non-Pooled Subordinate Loan. The relative rights of the
holder of the
Ramapo Centre Pooled Mortgage Loan and the holder of the Ramapo
Centre
Non-Pooled Subordinate Loan are set forth in the Ramapo Centre
Intercreditor
Agreement, which provides that the Ramapo Centre Loan Group is to
be serviced
and administered in accordance with this Agreement, by the Trustee,
the Fiscal
Agent, the Certificate Administrator, the applicable Master
Servicer and the
General Special Servicer.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, each Special Servicer, the
Certificate
Administrator, the Tax Administrator, the Trustee and the Fiscal
Agent hereby
agree, in each case, as follows:
-7-
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings
specified in this
Section 1.01, subject to modification in accordance with Section
1.04.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"ABN AMRO": ABN AMRO Bank N.V. or its successor in interest.
"Accrued Certificate Interest": The interest accrued from time to
time
with respect to any Class of REMIC III Regular Interests, the
amount of which
interest shall equal: (a) in the case of any Class of Principal
Balance REMIC
III Regular Interests for any Interest Accrual Period, one-twelfth
of the
product of (i) the Pass-Through Rate applicable to such Class of
REMIC III
Regular Interests for such Interest Accrual Period, multiplied by
(ii) the Class
Principal Balance of such Class of REMIC III Regular Interests
outstanding
immediately prior to the related Distribution Date; and (b) in the
case of
either Class of Interest Only Certificates for any Interest Accrual
Period, the
aggregate amount of Accrued Component Interest for all of such
Class' REMIC III
Components for such Interest Accrual Period.
"Accrued Component Interest": The interest accrued from time to
time
with respect to any REMIC III Component of either Class of Interest
Only
Certificates, the amount of which interest shall equal, for any
Interest Accrual
Period, one-twelfth of the product of (i) either (A) in the case of
a REMIC III
Component of the Class X-1 Certificates, the Class X-1 Strip Rate
applicable to
such REMIC III Component for such Interest Accrual Period, or (B)
in the case of
a REMIC III Component of the Class X-2 Certificates, the Class X-2
Strip Rate
applicable to such REMIC III Component for such Interest Accrual
Period,
multiplied by (ii) the Component Notional Amount of such REMIC III
Component
outstanding immediately prior to the related Distribution Date.
"Actual/360 Basis": The accrual of interest calculated on the basis
of
the actual number of days elapsed during any calendar month (or
other applicable
recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest
on an
Actual/360 Basis.
"Additional Collateral": Any non-real property collateral
(including
any Letter of Credit and Reserve Funds) pledged and/or delivered by
or on behalf
of the related Borrower and held by the related Mortgagee to secure
payment on
any Mortgage Loan.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise
included in the
calculation of a Realized Loss, that would result in the Holders of
the
Certificates (other than the Class R and Class V Certificates)
receiving less
than the full amount of principal and/or Distributable Certificate
Interest to
which they are entitled on any Distribution Date.
-8-
"Additional Yield Amount": As defined in Section 4.01(c).
"Administered REO Property": Any REO Property other than any REO
Property related to a Non-Trust-Serviced Pooled Mortgage Loan.
"Administrative Fee Rate": With respect to each Pooled Mortgage
Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), a
rate per
annum equal to the sum of (i) the Servicer Report Administrator Fee
Rate; (ii)
the Trustee Fee Rate, (iii) the related Master Servicing Fee Rate
and (iv) if
(and only if) such Pooled Mortgage Loan constitutes a
Non-Trust-Serviced Pooled
Mortgage Loan, the rate per annum equal to the rate per annum at
which
comparable administrative fees payable under the applicable
Non-Trust Servicing
Agreement accrue.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": The interest accrued on any Advance (other than
any
Unliquidated Advance) at the Reimbursement Rate, which is payable
to the party
hereto that made that Advance, all in accordance with Section
3.11(g) or Section
4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status
of any Grantor Trust Pool as a Grantor Trust; or (ii) the
imposition of a tax
upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates
and each Rating Agency that has assigned a rating thereto, as of
any date of
determination, the qualification, downgrade or withdrawal of the
rating then
assigned to such Class of Rated Certificates by such Rating Agency
(or the
placing of such Class of Rated Certificates on "negative credit
watch" status in
contemplation of any such action with respect thereto) and, solely
with respect
to matters affecting any Mortgage Loan Group that includes one or
more Serviced
Non-Pooled Pari Passu Companion Loans, with respect to such
Mortgage Loan Group
and any related class of Non-Pooled Pari Passu Companion Loan
Securities and
each Rating Agency that has assigned a rating thereto, as of any
date of
determination, the qualification, downgrade or withdrawal of the
rating then
assigned to such class of Non-Pooled Pari Passu Companion Loan
Securities by
such Rating Agency (or, in each case, the placing of such class on
"negative
credit watch" status in contemplation of any such action with
respect thereto).
"Adverse REMIC Event": Either: (i) any impairment of the status of
any
REMIC Pool as a REMIC; or (ii) except as permitted by Section
3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or
transactions
(including the tax on prohibited transactions as defined in Section
860F(a)(2)
of the Code, the tax on contributions under Section 860G(d) of the
Code and the
tax on income from foreclosure property under Section 860G(c) of
the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing
Date.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
-9-
"Anticipated Repayment Date": With respect to any ARD Mortgage
Loan,
the date specified in the related Mortgage Note, as of which
Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is
prior to the
Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State
Law shall be (1) the laws of the State of New York; (2) to the
extent brought to
the attention of the Tax Administrator (by either (i) an Opinion of
Counsel
delivered to it or (ii) written notice from the appropriate taxing
authority as
to the applicability of such state law), (a) the laws of the states
in which the
Corporate Trust Offices of the Certificate Administrator and the
Trustee and the
Primary Servicing Offices of the Master Servicers and the Special
Servicers are
located and (b) the laws of the states in which any Mortgage Loan
Documents are
held and/or any REO Properties are located; and (3) such other
state or local
law as to which the Tax Administrator has actual knowledge of
applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as
to which an appraisal is required to be performed pursuant to the
terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the
case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated
Principal
Balance as of the date of such appraisal of $2,000,000 or less, at
the
applicable Special Servicer's option, either a limited appraisal
and a summary
report or an internal valuation prepared by such Special Servicer)
that (i)
indicates the "market value" of the subject property (within the
meaning of 12
CFR ss. 225.62(g)) and (ii) is conducted by a Qualified Appraiser
(except that,
in the case of a Pooled Mortgage Loan or an REO Pooled Mortgage
Loan with a
Stated Principal Balance as of the date of such appraisal of
$2,000,000 or less,
the appraiser may be an employee of the applicable Special
Servicer, which
employee need not be a Qualified Appraiser but shall have
experience in
commercial and/or multifamily properties, as the case may be, and
possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount": With respect to any Serviced Mortgage
Loan that is a Required Appraisal Loan, an amount (calculated
initially as of
the Determination Date immediately following the later of the date
on which the
subject Pooled Mortgage Loan became a Required Appraisal Loan and
the date on
which the applicable Appraisal was obtained) equal to the excess,
if any, of:
(a) the sum of, without duplication, (i) the Stated Principal
Balance
of such Required Appraisal Loan, (ii) to the extent not previously
advanced
by or on behalf of the applicable Master Servicer, the Trustee or
the
Fiscal Agent, all unpaid interest on such Required Appraisal Loan
through
the most recent Due Date prior to the date of calculation
(exclusive of any
portion thereof that represents Post-ARD Additional Interest and/or
Default
Interest), (iii) all accrued and unpaid Special Servicing Fees in
respect
of such Required Appraisal Loan, (iv) all related unreimbursed
Advances
(together with Unliquidated Advances) made by or on behalf of (plus
all
accrued and unpaid interest on such Advances (other than
Unliquidated
Advances)) payable to) the applicable Master Servicer, the
applicable
Special Servicer, the Trustee and/or the Fiscal Agent with respect
to such
Required Appraisal Loan, (v) any other outstanding Additional Trust
Fund
Expenses with respect to such Required Appraisal Loan, and (vi) all
currently due and unpaid real estate taxes and assessments,
insurance
premiums and, if applicable, ground rents, and any unfunded
improvement or
other applicable reserves, in respect of the related Mortgaged
Property or
REO Property, as the case may be (in each case, net of any amounts
escrowed
with the applicable Master Servicer or the Special Servicer for
such
items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i)
90%
of the Appraised Value of the related Mortgaged Property (or REO
Property)
as determined by the most recent Appraisal or any letter update of
such
Appraisal, over (ii) the amount of any obligations secured by liens
on such
Mortgaged Property (or REO Property) that are prior to the lien of
the
related Required Appraisal Loan; plus (b) the amount of any Escrow
Payments
and/or Reserve Funds held by the applicable Master Servicer or the
applicable Special Servicer with respect to such Required Appraisal
Loan,
the related Mortgaged Property or any related REO Property that (i)
are not
being held in respect of any real estate taxes and assessments,
insurance
premiums or, if applicable, ground rents, (ii) are not otherwise
scheduled
to be applied or utilized (except to pay debt service on such
Required
Appraisal Loan) within the twelve-month period following the date
of
determination and (iii) may be applied towards the reduction of the
principal balance of such Required Appraisal Loan; plus (c) the
amount of
-10-
any Letter of Credit constituting additional security for such
Required
Appraisal Loan and that may be applied towards the reduction of the
principal balance of such Required Appraisal Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Appraisal or update
thereof has been
obtained or conducted, as applicable, in accordance with Section
3.19(a), with
respect to the related Mortgaged Property or REO Property, as the
case may be,
during the 12-month period prior to the date such Mortgage Loan
became a
Required Appraisal Loan or (B) there shall have occurred since the
date of the
most recent Appraisal or update thereof a material change in the
circumstances
surrounding the related Mortgaged Property or REO Property, as the
case may be,
that would, in the applicable Special Servicer's reasonable
judgment, materially
affect the value of the related Mortgaged Property or REO Property,
as the case
may be, and (iii) no new Appraisal is obtained or conducted, as
applicable, in
accordance with Section 3.19(a), within 60 days after such Mortgage
Loan became
a Required Appraisal Loan, then (x) until such new Appraisal is
obtained or
conducted, as applicable, in accordance with Section 3.19(a), the
Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of
such
Required Appraisal Loan, and (y) upon receipt or performance, as
applicable, in
accordance with Section 3.19(a), of such Appraisal or update
thereof by the
applicable Special Servicer, the Appraisal Reduction Amount for
such Required
Appraisal Loan shall be recalculated in accordance with the
preceding sentence
of this definition.
In connection with the foregoing, each Cross-Collateralized
Mortgage
Loan that is part of a single Cross-Collateralized Group shall be
treated
separately (in each case as a single Mortgage Loan without regard
to the
cross-collateralization and cross-default provisions) for purposes
of
calculating an Appraisal Reduction Amount.
Notwithstanding the foregoing, as of any date of determination, all
of
the following provisions shall apply in connection with each
Serviced Mortgage
Loan Group: (i) if such Mortgage Loan Group then includes one or
more Serviced
Non-Pooled Subordinate Loans, then, for purposes of the definition
of "Lock Up
Storage Centers Change of Control Event" or "PCF Split Loan
Standard Change of
Control Event", as applicable, an Appraisal Reduction Amount shall
be calculated
with respect to the entirety of the applicable Mortgage Loan Group
as if it were
a single "Serviced Pooled Mortgage Loan" and allocated first to the
related
Non-Pooled Subordinate Loan up to the full principal balance
thereof; (ii) if
such Mortgage Loan Group then includes one or more Serviced
Non-Pooled Pari
Passu Companion Loans (whether or not such Mortgage Loan Group also
then
includes one or more Non-Pooled Subordinate Loans), then, for
purposes of the
proviso to Section 4.03(b) and any other applicable purpose
relating to the
Pooled Mortgage Loans and the Non-Pooled Pari Passu Companion
Loans, an
Appraisal Reduction Amount shall be calculated with respect to the
entire
indebtedness evidenced by the Pooled Mortgage Loan included in such
Mortgage
Loan Group and such Non-Pooled Pari Passu Companion Loans (but not
any related
Serviced Non-Pooled Subordinate Loan included in such Mortgage Loan
Group) as if
they were a single "Serviced Pooled Mortgage Loan" and allocated to
such Pooled
Mortgage Loan and Non-Pooled Pari Passu Companion Loans up to the
aggregate of,
and on a pro rata basis in accordance with, the respective
outstanding principal
balances of such Mortgage Loans; and (iii) for all purposes (if
any) other than
as set forth in the immediately preceding clauses (i) and (ii), an
Appraisal
Reduction Amount shall be calculated solely with respect to the
Pooled Mortgage
Loan included in such Mortgage Loan Group.
An Appraisal Reduction Amount with respect to any Pooled Mortgage
Loan
will be reduced to zero as of the date on which all Servicing
Transfer Events
have ceased to exist with respect to such Mortgage Loan and at
least 90 days
have passed following the occurrence of the most recent Appraisal
Trigger Event.
No Appraisal Reduction Amount will exist as to any Pooled Mortgage
Loan after it
has been paid in full or it (or the REO Property) has been
liquidated or
otherwise disposed of.
Notwithstanding the foregoing, with respect to each
Non-Trust-Serviced
Pooled Mortgage Loan, the Appraisal Reduction Amount shall be the
"appraisal
reduction amount" calculated by the applicable Non-Trust Master
Servicer
pursuant to the applicable Non-Trust Servicing Agreement and the
parties hereto
shall be entitled to rely on such calculations as reported to them
by the
applicable Non-Trust Master Servicer.
"Appraisal Trigger Event": As defined in Section 3.19(a).
-11-
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent
Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARCap Interest on Advance Reconciliation Report": The report in
the
form of and containing the information provided for on Exhibit E-1
hereto. The
ARCap Interest on Advance Reconciliation Report shall be in Excel
format or such
other format as is reasonably acceptable to the Master Servicers,
the
Certificate Administrator and the Controlling Class Representative.
"ARCap Mortgage Loans Delinquent Report": The report in the form of
and
containing the information provided for on Exhibit E-2 hereto. The
ARCap
Mortgage Loans Delinquent Report shall be in Excel format or such
other format
as is reasonably acceptable to the Master Servicers, the
Certificate
Administrator and the Controlling Class Representative.
"ARCap Naming Convention for Electronic File Delivery": The naming
convention for electronic file delivery set forth on Exhibit E-5
hereto.
"ARCap P&I Advances as of Remittance Date Report": The report
in the
form of and containing the information provided for on Exhibit E-3
hereto. The
ARCap P&I Advances as of Remittance Date Report shall be in
Excel format or such
other format as is reasonably acceptable to the Master Servicers,
the
Certificate Administrator and the Controlling Class Representative.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual
of
Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full
on or prior to its Anticipated Repayment Date.
"Aspen Highlands Controlling Party": The Aspen Highlands Non-Pooled
Subordinate Noteholder at any time when a PCF Change of Control
Event does not
exist with respect to the Aspen Highlands Loan Group or the
Controlling Class
Representative at any time when a PCF Change of Control Event
exists with
respect to the Aspen Highlands Loan Group.
"Aspen Highlands Intercreditor Agreement": That certain Co-Lender
Agreement, dated as of April 11, 2005, by and between Principal
Commercial
Funding, LLC, as initial note A lender, and Principal Life
Insurance Company, as
initial note B lender.
"Aspen Highlands Loan Group": Collectively, the Aspen Highlands
Pooled
Mortgage Loan and the Aspen Highlands Non-Pooled Subordinate Loan
(including any
successor REO Mortgage Loans with respect to such loans).
"Aspen Highlands Mortgaged Property": The Mortgaged Property
identified
on the Pooled Mortgage Loan Schedule as "Aspen Highlands".
"Aspen Highlands Non-Pooled Subordinate Loan": The mortgage loan,
with
an original principal balance in the original principal amount of
$500,000 that
is secured by the same Mortgage encumbering the Aspen Highlands
Mortgaged
Property as the Aspen Highlands Pooled Mortgage Loan and is
subordinate in right
of payment to the Aspen Highlands Pooled Mortgage Loan and is held
as of the
Closing Date by Principal Life Insurance Company. The Aspen
Highlands Non-Pooled
Subordinate Loan is not a "Pooled Mortgage Loan" or part of the
Trust Fund, any
REMIC Pool or any Grantor Trust Pool.
"Aspen Highlands Non-Pooled Subordinate Noteholder": The holder or
holders of the related Mortgage Note evidencing the Aspen Highlands
Non-Pooled
Subordinate Loan.
"Aspen Highlands Pooled Mortgage Loan": The Pooled Mortgage Loan in
the
original principal amount of $9,200,000 that is secured by the
Mortgage
encumbering the Aspen Highlands Mortgaged Property.
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"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the related Borrower in connection with the origination
of the
related Mortgage Loan(s), as such assignment may be amended,
modified, renewed
or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage
Loan
that is a Balloon Mortgage Loan delinquent in respect of its
Balloon Payment
beyond the Determination Date immediately following its scheduled
maturity date
(as such date may be extended in connection with a bankruptcy,
insolvency or
similar proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the
applicable Master
Servicer or the applicable Special Servicer), for that scheduled
maturity date
and for each subsequent Due Date as of which such Pooled Mortgage
Loan remains
outstanding and part of the Trust Fund, the scheduled monthly
payment of
principal and/or interest deemed to be due with respect to such
Pooled Mortgage
Loan on such Due Date equal to the amount (exclusive of Default
Interest) that
would have been due in respect thereof on such Due Date if such
Pooled Mortgage
Loan had been required to continue to accrue interest in accordance
with its
terms, and to pay principal in accordance with the amortization
schedule (if
any), in effect immediately prior to, and without regard to the
occurrence of,
such maturity date; and (b) any REO Pooled Mortgage Loan, for any
Due Date as of
which the related REO Property (or, in the case of any REO Pooled
Mortgage Loan
that is a successor to any Pooled Mortgage Loan in a Mortgage Loan
Group, any
interest in the related REO Property) remains part of the Trust
Fund, the
scheduled monthly payment of principal and/or interest deemed to be
due in
respect thereof on such Due Date equal to the Monthly Payment (or,
in the case
of a Balloon Mortgage Loan described in clause (b) of this
definition, the
Assumed Monthly Payment) that was due (or deemed due) with respect
to the
related Pooled Mortgage Loan on the last Due Date prior to its
becoming an REO
Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 5.07 (or, in the absence of any such appointment, the
Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution
Date,
an amount equal to (a) the sum of (i) all amounts on deposit in the
Distribution
Account as of 11:00 a.m., New York City time, on such Distribution
Date, (ii) to
the extent not included in the amount described in clause (a)(i) of
this
definition, any P&I Advances and/or Compensating Interest
Payments that were
made hereunder in respect of such Distribution Date, (iii) to the
extent not
included in the amount described in clause (a)(i) of this
definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the
Excess
Liquidation Proceeds Account to the Distribution Account in respect
of such
Distribution Date, and (iv) to the extent not included in the
amount described
in clause (a)(i) of this definition, if such Distribution Date
occurs during the
month of March of 2006 or any year thereafter, the aggregate of the
Interest
Reserve Amounts with respect to the Interest Reserve Loans
transferred from the
Interest Reserve Account to the Distribution Account during such
month of March
for distribution on such Distribution Date, net of (b) any portion
of the
amounts described in clause (a) of this definition that represents
one or more
of the following: (i) collected Monthly Payments that are due on a
Due Date
following the end of the related Collection Period (other than, in
the case of
any Pooled Mortgage Loan for which the Due Date is on the 3rd, 4th
or 5th day of
each month and such day in the current month happens to be later
than the end of
such related Collection Period, in which case such collected
Monthly Payment
shall not be withheld until the following month as otherwise
contemplated by
this clause (i)), (ii) any payments of principal (including
Principal
Prepayments) and interest, Insurance Proceeds, Condemnation
Proceeds and
Liquidation Proceeds Received by the Trust after the end of the
related
Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges
and/or Post-ARD Additional Interest, (iv) any amounts payable or
reimbursable to
any Person from the Distribution Account pursuant to clauses (iii)
through
(viii) of Section 3.05(b), (v) if such Distribution Date occurs
during the month
of February of 2006 or any year thereafter or during the month of
January of
2006 or any year thereafter that is not a leap year, the aggregate
of the
Interest Reserve Amounts with respect to the Interest Reserve Loans
to be
withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii))
from the
Distribution Account and deposited into the Interest Reserve
Account during such
month
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of February or such month of January, as the case may be, and held
for future
distribution, and (vi) any amounts deposited in the Distribution
Account in
error; provided that the Available Distribution Amount for the
Final
Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii)
and (b)(v) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms
or by virtue of any modification entered into as of the Closing
Date (or, in the
case of a Replacement Pooled Mortgage Loan, as of the related date
of
substitution) provides for an amortization schedule extending
beyond its Stated
Maturity Date and as to which, in accordance with such terms, the
Monthly
Payment due on its Stated Maturity Date is at least 5% of the
original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any
date of determination, the Monthly Payment payable on the Stated
Maturity Date
of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated June 8, 2005
relating
to trust funds established by the Depositor and publicly offered
mortgage
pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the
Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate
that constitutes a Book-Entry Certificate.
"Borrower": Individually and collectively, as the context may
require,
the obligor or obligors under a Mortgage Loan, including any Person
that has not
signed the related Mortgage Note but owns an interest in the
related Mortgaged
Property, which interest has been encumbered to secure such
Mortgage Loan.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear Stearns Commercial Mortgage, Inc., or its successor
in
interest.
"BSCMI Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either
an Original BSCMI Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan
that was delivered under the BSCMI Pooled Mortgage Loan Purchase
Agreement in
substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage
Loan Purchase and Sale Agreement dated as of June 8, 2005, between
BSCMI as
seller and the Depositor as purchaser.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or
any of the
jurisdictions in which the respective Primary Servicing Offices of
the Master
Servicers, the Primary Servicers and the Special Servicers and the
Corporate
Trust Offices of the Certificate Administrator and the Trustee are
located, are
authorized or obligated by law or executive order to remain closed.
"Category 1 Request": In connection with the PCF Pooled Mortgage
Loans,
a "Category 1 Request" and a "Deemed Category 1 Request" as such
terms are
defined in the PCF Primary Servicing Agreement.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2005-PWR8 Commercial
Mortgage
Pass-Through Certificates, as executed by the Certificate
Administrator and
authenticated and delivered hereunder by the Certificate Registrar.
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"Certificate Administrator": WFB, in its capacity as certificate
administrator hereunder, or any successor certificate administrator
appointed as
herein provided.
"Certificate Administrator Fee": That portion of the Trustee Fee
payable to the Certificate Administrator in an amount agreed to by
the Trustee
and the Certificate Administrator.
"Certificate Administrator Floating Rate Sub-Account": As defined
in
Section 3.30(d).
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Interest Only
Certificates or Principal Balance Certificates, as of any date of
determination,
a fraction, expressed as a decimal carried to eight places, the
numerator of
which is the related Class Principal Balance or Class Notional
Amount, as the
case may be, then outstanding, and the denominator of which is the
related Class
Principal Balance or Class Notional Amount, as the case may be,
outstanding as
of the Closing Date.
"Certificateholder" or "Holder": The Person in whose name a
Certificate
is registered in the Certificate Register, provided, however, that:
(i) neither
a Disqualified Organization nor a Non-United States Tax Person
shall be a
"Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for
any purpose hereof; and (ii) solely for purposes of giving any
consent,
approval, direction or waiver pursuant to this Agreement that
specifically
relates to the rights, duties and/or obligations hereunder of any
of the
Depositor, a Master Servicer, a Special Servicer, the Tax
Administrator, the
Certificate Administrator, the Trustee or the Fiscal Agent in its
respective
capacity as such (other than any consent, approval or waiver
contemplated by
Sections 3.24, 3.25, 3.27, 3.28, 3.29), any Certificate registered
in the name
of such party or in the name of any Affiliate thereof shall be
deemed not to be
outstanding, and the Voting Rights to which it is entitled shall
not be taken
into account in determining whether the requisite percentage of
Voting Rights
necessary to effect any such consent, approval or waiver that
specifically
relates to such party has been obtained. The Certificate Registrar
shall be
entitled to request and conclusively rely upon a certificate of the
Depositor, a
Master Servicer or a Special Servicer in determining whether a
Certificate is
registered in the name of an Affiliate of such Person. All
references herein to
"Certificateholders" or "Holders" shall reflect the rights of
Certificate Owners
only insofar as they may indirectly exercise such rights through
the Depository
and the Depository Participants (except as otherwise specified
herein), it being
herein acknowledged and agreed that the parties hereto shall be
required to
recognize as a "Certificateholder" or "Holder" only the Person in
whose name a
Certificate is registered in the Certificate Register.
Notwithstanding any
contrary provision of this definition, in connection with the Class
A-4FL REMIC
III Regular Interest, the term "Holder" shall mean the Trustee as
the holder of
the Class A-4FL REMIC III Regular Interest.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional
principal amount
on which such Certificate accrues interest, equal to the product of
(a) the then
Certificate Factor for the Class of Interest Only Certificates to
which such
Certificate belongs, multiplied by (b) the amount specified on the
face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate,
the
Person who is the beneficial owner of such Certificate as reflected
on the books
of the Depository or on the books of a Depository Participant or on
the books of
an indirect participating brokerage firm for which a Depository
Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal
Balance
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the then
Certificate
Factor for the Class of Principal Balance Certificates to which
such Certificate
belongs, multiplied by (b) the amount specified on the face of such
Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
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"Certification Parties": As defined in Section 8.15(b).
"Certifying Person": As defined in Section 8.15(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same
payment terms
or the REMIC III Regular Interest that bears the designation
"A-4FL".
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of business on which (i)
two or more
Classes of the Class A Senior REMIC III Regular Interests remain
outstanding and
(ii) the aggregate of the Class Principal Balances of the 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 P and Class Q Certificates have previously
been reduced
to zero as a result of the allocation of Realized Losses and
Additional Trust
Fund Expenses pursuant to Section 4.04(a).
"Class A Senior REMIC III Regular Interests": The Class A-1, Class
A-2,
Class A-3, Class A-AB and Class A-4 Certificates and the Class
A-4FL REMIC III
Regular Interest.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-4FL Available Funds": With respect to any Distribution
Date,
the excess of (A) (i) the sum of all payments or other receipts on
account of
principal and interest and other sums on or in respect of the Class
A-4FL REMIC
III Regular Interest received by the Trustee as the holder of the
Class A-4FL
REMIC III Regular Interest after the Cut off Date and on or prior
to such
Distribution Date, to the extent not previously paid or distributed
to the
Holders of the Class A-4FL Certificates, to the Class A-4FL Swap
Counterparty,
to the Class A-4FL Swap Guarantor and/or to one or more third
parties in respect
of the enforcement of the Class A-4FL Swap Contract and/or the
Class A-4FL Swap
Guarantee, and (ii) the sum of all previously undistributed amounts
received by
the Certificate Administrator (on behalf of the Trustee) from the
Class A-4FL
Swap Counterparty and/or the Class A-4FL Swap Guarantor in respect
of the Class
A-4FL REMIC III Regular Interest pursuant to the Class A-4FL Swap
Contract or
the Class A-4FL Swap Guarantee, including, but not limited to, any
termination
payment, over (B) the sum of (i) for as long as the Swap Contract
is in effect,
any and all Additional Yield Amounts paid on the Class A-4FL REMIC
III Regular
Interest pursuant to Section 4.01(c), (ii) without duplication of
the amount
described in clause(B)(i), all amounts required to be paid to the
Class A-4FL
Swap Counterparty in respect of the Class A-4FL REMIC III Regular
Interest
pursuant to the Class A-4FL Swap Contract and (iii) all amounts
incurred by the
Trustee in connection with enforcing the rights of the Trust under
the Class
A-4FL Swap Contract or the Class A-4FL Swap Guarantee.
"Class A-4FL Certificate": Any one of the Certificates with a
"Class
A-4FL" designation on the face thereof, substantially in the form
of Exhibit A-1
attached hereto, and evidencing ownership of Grantor Trust A-4FL.
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"Class A-4FL Fixed Interest Distribution Amount": With respect to
the
Class A-4FL REMIC III Regular Interest, the payments of interest
required to be
made in respect of each Distribution Date, commencing in July 2005,
by one or
both of the Master Servicers (as specified in Section 3.30) on
behalf of the
Trustee to the Class A-4FL Swap Counterparty pursuant to the Class
A-4FL Swap
Contract at a rate equal to the Pass-Through Rate of the Class
A-4FL REMIC III
Regular Interest on the Class Principal Balance of the Class A-4FL
REMIC III
Regular Interest, subject to reduction in accordance with the Class
A-4FL Swap
Contract.
"Class A-4FL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (i) for so long as the Class A-4FL
Swap Contract
is in effect, the aggregate amount of interest (giving effect to
the relevant
netting provisions) received by the Certificate Administrator on
behalf of the
Trustee from the Class A-4FL Swap Counterparty in respect of the
Class A-4FL
REMIC III Regular Interest pursuant to the terms of the Class A-4FL
Swap
Contract for the related Interest Accrual Period and (ii) amounts
in respect of
interest (including distributions in respect of Distributable
Certificate
Interest remaining unpaid from prior Distribution Dates) received
on the Class
A-4FL REMIC III Regular Interest not required to be paid to the
Swap
Counterparty pursuant to the terms of the Class A-4FL Swap Contract
for the
related Interest Accrual Period (giving effect to the relevant
netting
provisions). If the Swap Counterparty defaults on its obligation to
pay such
interest to the Certificate Administrator, or if a Class A-4FL Swap
Default
occurs, the Class A-4FL Interest Distribution Amount for each
Distribution Date
thereafter will equal the Distributable Certificate Interest for
the Class A-4FL
REMIC III Regular Interest, until such time as the Class A-4FL 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": With respect to any
Distribution Date, an amount equal to the aggregate amount of the
principal
distributed on the Class A-4FL REMIC III Regular Interest on such
Distribution
Date pursuant to Section 4.01(a).
"Class A-4FL Rating Agency Trigger Event": The event that occurs if
the
Class A-4FL Swap Counterparty Guarantor's long-term rating is not
at least "A-"
by Fitch or "A3" by Moody's.
"Class A-4FL REMIC III Regular Interest": The uncertificated
regular
interest in REMIC III designated as the "Class A-4FL REMIC III
Regular Interest"
in Note 1 to the table set forth under "Class Designations of the
REMIC III
Regular Interests" in the preamble to this Agreement.
"Class A-4FL Swap Contract": Collectively, the master interest rate
exchange agreement dated as of June 21, 2005, between the Swap
Counterparty and
the Trustee, for and on behalf of the Trust, as supplemented by the
Schedule
thereto (including the Credit Support Annex to such Schedule) and
the
Confirmation thereunder dated June 21, 2005.
"Class A-4FL Swap Counterparty": Morgan Stanley Capital Services
Inc.,
or its successor in interest, in its capacity as "Party A" under
the Class A-4FL
Swap Contract, or any substitute party for "Party A" under the
Class A-4FL Swap
Contract.
"Class A-4FL Swap Counterparty Collateral Account": As defined in
Section 3.30(h).
"Class A-4FL Swap Default": Any failure on the part of the Class
A-4FL
Swap Counterparty to (i) make a required payment under the Class
A-4FL Swap
Contract or (ii) post acceptable collateral, find an acceptable
replacement swap
counterparty or find an acceptable guarantor or otherwise take
action required
by the Rating Agencies after a Class A-4FL Rating Agency Trigger
Event, as
required by the Schedule to the related ISDA Master Agreement.
"Class A-4FL Swap Guarantee": That certain guarantee dated June 21,
2005 in favor of the Trust issued by Morgan Stanley, a Delaware
corporation.
"Class A-4FL Swap Guarantor": Morgan Stanley, a Delaware
corporation,
or its successor interest in its capacity as guarantor under the
Class A-4FL
Swap Guarantee.
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"Class A-AB Certificate": Any one of the Certificates with a "Class
A-AB" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-AB Planned Principal Balance" For any Distribution Date,
the
principal balance set forth opposite such Distribution Date on
Schedule VI
attached hereto.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional
amount
on which any Class of Interest Only Certificates accrues or is
deemed to accrue
interest from time to time, as calculated in accordance with
Section 2.17(e).
"Class P Certificate": Any of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class
of Principal Balance REMIC III Regular Interests or the Class A-4FL
Certificates
outstanding as of any date of determination. As of the Closing
Date, the Class
Principal Balance of each Class of Principal Balance REMIC III
Regular Interests
or the Class A-4FL Certificates, as the case may be, shall equal
the initial
Class Principal Balance thereof. On each Distribution Date, the
Class Principal
Balance of each Class of Principal Balance REMIC III Regular
Interests shall be
(i) reduced by the amount of any distributions of principal made
thereon on such
Distribution Date pursuant to Section 4.01, and (ii) further
reduced by the
amount of any Realized Losses and Additional Trust Fund Expenses
deemed
allocated thereto on such Distribution Date pursuant to Section
4.04(a);
provided, however, that if the Principal Distribution Amount for
such
Distribution Date includes any amount described in clause (I)(C) of
the
definition of "Principal Distribution Amount" (in respect of
recoveries during
the Collection Period related to such Distribution Date of amounts
determined to
constitute Nonrecoverable Advances during a Collection Period
related to a prior
Distribution Date), then the Class Principal Balances of the
respective Classes
of Principal Balance REMIC III Regular Interests shall hereby be
increased (in
the aggregate) immediately prior to such Distribution Date by the
lesser of the
amount of Realized Losses previously allocated thereto and such
amount described
in such clause (I)(C) (and, as among the respective Classes of
Principal Balance
REMIC III Regular Interests, such increase shall be allocated in
sequential
order (in each case to the extent of the lesser of the Realized
Losses
previously allocated thereto and the remaining unallocated portion
of the
increase) according to alphabetical Class designation or, in the
case of a Class
of Class A Senior REMIC III Regular Interests, pro rata according
to the amounts
of Realized Losses previously allocated to the respective Classes
of Class A
Senior REMIC III Regular Interests). As of the close of business on
each
Distribution Date, the Class Principal Balance of the Class A-4FL
Certificates
shall be adjusted so that it is exactly equal to the Class
Principal Balance of
the Class A-4FL REMIC III Regular Interest in effect as of the
close of business
on such Distribution Date.
"Class Q Certificate": Any of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
"Class V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
"Class X-1 Certificate": Any of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class X-1 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Certificate": Any of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-2 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Termination Date": With respect to each REMIC III
Component
of the Class X-2 Certificates, the Distribution Date that occurs in
the month
set forth opposite such REMIC III Component in the Preliminary
Statement under
the column entitled "Class X-2 Termination Date for REMIC III
Component of Class
X-2 Certificates" in the table entitled "REMIC III--Corresponding
REMIC II
Regular Interests".
"Clearstream": Clearstream Banking, societe anonyme or any
successor.
"Closing Date": June 21, 2005.
"Closing Date Deposit Amount": With respect to each Closing Date
Deposit Mortgage Loan, a cash amount to be deposited by the related
Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase
Agreement, as set forth on Schedule VII, which cash amount
represents, as to
such Pooled Mortgage Loan, the aggregate amount of interest that
would have
accrued on such Closing Date Deposit Mortgage during the entire
month of June
2005 at the related Mortgage Rate on the related Cut-off Date
Principal Balance
as if such Mortgage Loan accrued interest for such month.
"Closing Date Deposit Mortgage Loan": Any Mortgage Loan set forth
on
Schedule VII, for which Mortgage Loan a Monthly Payment is not due
in July 2005.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, issuers, placement
agents and
underwriters generally involved in the commercial mortgage loan
securitization
industry, which is the principal such association or organization
in the
commercial mortgage loan securitization industry and one of whose
principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be reasonably
acceptable to each Master Servicer, each Primary Servicer, the
Certificate
Administrator, the Trustee, each Special Servicer and the
Controlling Class
Representative.
"CMSA Advance Recoverability Report": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Advance Recoverability Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally and is reasonably acceptable to each Master Servicer,
each Special
Servicer, the Certificate Administrator and the Trustee. The
preparation of each
CMSA Advance Recoverability Report shall constitute a
responsibility of the
applicable Master Servicer and shall not constitute a
responsibility of any
other party. Each CMSA Loan Periodic Update File prepared by a
Master Servicer
shall be accompanied by a CMSA Advance Recoverability Report.
Notwithstanding
anything in this Agreement to the contrary, the applicable Master
Servicer shall
not be required to deliver a CMSA Advance Recoverability Report
(and the
relevant CMSA Loan Periodic Update File need not be accompanied by
any such
report) with respect to any Collection Period prior to the date
when a
Workout-Delayed
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Reimbursement Amount or a Nonrecoverable Advance exists with
respect to any
Pooled Mortgage Loan for which such Master Servicer is the
applicable Master
Servicer.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Comparative Financial Status Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information as
may from time to time be recommended by the CMSA for commercial
mortgage-backed
securities transactions generally and is reasonably acceptable to
each Master
Servicer and each Special Servicer. Each CMSA Comparative Financial
Status
Report shall be based on (1) the most recent rent roll and (2) to
the extent
provided to the applicable Master Servicer or the applicable
Special Servicer,
(i) in connection with a CMSA Comparative Financial Status Report
relating to
quarterly financial information, trailing 12 months of financial
information
(non-normalized), if trailing 12 months of financial information
was provided to
the applicable Master Servicer or the applicable Special Servicer
(as the case
may be), or financial information based on 9 months of operating
statements or
year-to-date financial information, if trailing 12 months of
financial
information was not provided to the applicable Master Servicer or
the applicable
Special Servicer (as the case may be) and 9 months of operating
statements or
year-to-date financial information was provided to the applicable
Master
Servicer or the applicable Special Servicer (as the case may be) or
(ii) in
connection with a CMSA Comparative Financial Status Report relating
to annual
financial information, annual operating statements (if provided to
the
applicable Master Servicer or the applicable Special Servicer (as
the case may
be)), normalized. To the extent the information described above has
been
provided to the applicable Master Servicer or the applicable
Special Servicer,
each CMSA Comparative Financial Status Report shall present (among
other things
called for by the form of CMSA Comparative Financial Status Report)
the
occupancy rate, debt service coverage ratio, net operating income
and net cash
flow for each Mortgage Loan or Mortgaged Property covered thereby.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer and each Special
Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to each Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Historical Liquidation Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer and each Special
Servicer.
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"CMSA Historical Loan Modification Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Historical Loan Modification Report" available as of the
Closing Date on
the CMSA Website, or such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally and is reasonably acceptable to each Master Servicer and
each Special
Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following electronic files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral
Summary File;
and
(b) the following supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification Report, (iii)
CMSA
Historical Liquidation Report, (iv) CMSA REO Status Report, (v)
CMSA
Operating Statement Analysis Report, (vi) CMSA Comparative
Financial Status
Report, (vii) CMSA Servicer Watch List, (viii) CMSA NOI Adjustment
Worksheet, (ix) CMSA Loan Level Reserve Report, (x) CMSA
Reconciliation of
Funds Report and (xi) CMSA Special Servicer Loan File.
Notwithstanding anything in this Agreement to the contrary, in the
event any of the electronic files listed in clause (a) of this
definition or any
of the supplemental reports listed in clause (b) of this definition
are amended
or changed in any material respect by the CMSA and placed on the
CMSA Website or
otherwise recommended by the CMSA for commercial mortgage-backed
securities
transactions generally, so long as such electronic files and such
supplemental
reports are reasonably acceptable (as applicable) to each Master
Servicer and
each Special Servicer, then same shall be used with respect to the
Collection
Period that commences at any time following the date that is not
later than
three (3) months following adoption of the form thereof by the
CMSA.
"CMSA Loan Level Reserve Report": A report substantially in the
form
of, and containing the information called for in, the "Loan Level
Reserve
Report" as adopted by the CMSA and made available at the CMSA
Website.
"CMSA Loan Periodic Update File": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Loan Periodic Update File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to each Master Servicer, each Special
Servicer, the
Certificate Administrator and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally and is reasonably
acceptable
to each Master Servicer, each Special Servicer, the Certificate
Administrator
and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to each Master Servicer and each Special Servicer and in
any event,
shall present the computations made in accordance with the
methodology described
in such form to "normalize" the full year net operating income and
debt service
coverage numbers used in the other reports required by this
Agreement.
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"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date on the CMSA Website, or such
other form
for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage-backed securities transactions generally and is reasonably
acceptable
to each Master Servicer and each Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form for the presentation of such
information
and containing such additional information as may from time to time
be
recommended by the CMSA for commercial mortgage-backed securities
transactions
generally and is reasonably acceptable to each Master Servicer.
"CMSA Reconciliation of Funds Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Reconciliation of Funds Report" available as of the Closing
Date on the
CMSA Website or in such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage-backed securities transactions
generally and
is reasonably acceptable to the Certificate Administrator.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally and is
reasonably
acceptable to each Special Servicer.
"CMSA Servicer Watch List": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Servicer
Watch List" available as of the Closing Date on the CMSA Website,
or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be adopted by the
CMSA for
commercial mortgage-backed securities transactions and is
reasonably acceptable
to each Master Servicer.
"CMSA Special Servicer Loan File": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Special Servicer Loan File" available as of the Closing Date on
the CMSA
Website, or in such other form for the presentation of such
information and
containing such additional information as may from time to time be
adopted by
the CMSA for commercial mortgage-backed securities transactions and
is
reasonably acceptable to each Special Servicer.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and
regulations
promulgated thereunder, including proposed regulations to the
extent that, by
reason of their proposed effective date, could, as of the date of
any
determination or opinion as to the tax consequences of any action
or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created
and
maintained by each Master Servicer, pursuant to Section 3.04(a), in
trust for
the Certificateholders, which shall be entitled "[name of subject
Master
Servicer], as a Master Servicer, on behalf of LaSalle Bank National
Association
[or name of any successor Trustee], as Trustee, in trust for the
registered
holders of Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage
Pass-Through Certificates, 2005-PWR8, Collection Account".
"Collection Period": With respect to any Distribution Date, the
period
commencing on the day immediately following the Determination Date
in the
calendar month preceding the month in which such Distribution
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Date occurs (or, in the case of the initial Distribution Date,
commencing as of
the Cut-off Date) and ending on and including the Determination
Date in the
calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any
successor
thereto.
"Companion Note Custodial Account": As defined in Section 3.04(e).
"Compensating Interest Payment": With respect to any Distribution
Date,
any payment made by a Master Servicer or the Certificate
Administrator from its
own funds pursuant to Section 3.19(c) to cover Prepayment Interest
Shortfalls
incurred during the related Collection Period.
"Component Notional Amount": The notional amount on which any REMIC
III
Component of either Class of Interest Only Certificates accrues
interest, which,
as of any date of determination, is equal to the then current
Uncertificated
Principal Balance of such REMIC III Component's Corresponding REMIC
II Regular
Interest.
"Condemnation Proceeds": All cash amounts actually Received by the
Trust or on behalf of the Trustee, a Master Servicer or a Special
Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage
Loan or any
related REO Property, any such proceeds remitted to the applicable
Master
Servicer by the applicable Non-Trust Master Servicer or the
applicable Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor
Agreement and/or the applicable Non-Trust Servicing Agreement) in
connection
with the taking of all or a part of a Mortgaged Property or REO
Property by
exercise of the power of eminent domain or condemnation, exclusive
of any
portion thereof applied to the restoration of the related Mortgaged
Property or
REO Property (or placed in a reserve account for that purpose) or
required to be
released to the related Borrower or any other third-party in
accordance with
applicable law and/or the terms and conditions of the related
Mortgage Loan
Documents or any other applicable document.
"Controlling Class": As of any date of determination, the
outstanding
Class of Principal Balance Certificates that (a) bears the latest
alphabetic
Class designation and (b) has a Class Principal Balance which is
not less than
25% of the initial Class Principal Balance of such Class; provided
that if no
Class of Principal Balance Certificates has as of such date of
determination a
Class Principal Balance not less than 25% of its initial Class
Principal
Balance, then the Controlling Class shall be the then most
subordinate (based on
the payment priorities set forth in Section 4.01(a)) outstanding
Class of
Principal Balance Certificates that has a Class Principal Balance
greater than
zero; and provided, further, that, for purposes of this definition,
the Class
A-1, Class A-2, Class A-3, Class A-AB, Class A-4 and Class A-4FL
Certificates
shall be deemed to constitute a single Class of Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates
of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a).
The
initial Controlling Class Representative shall be ARCap CMBS Fund
II REIT, Inc.
"Corporate Trust Office: The corporate trust office of the
Certificate
Administrator or the asset-backed securities trust services office
of the
Trustee, as the case may be, at which at any particular time its
duties, with
respect to this Agreement shall be administered, which office is as
of the
Closing Date located: (i) in the case of the Certificate
Administrator, for
Certificate transfer purposes, at Wells Fargo Center, Sixth Street
and Marquette
Avenue, Minneapolis, Minnesota 55479; Attn: Corporate Trust
Services-Bear
Stearns Commercial Mortgage Securities Inc., 2005-PWR8, and for all
other
purposes, at 9062 Old Annapolis Road, Columbia, Maryland 21045,
Attention:
Corporate Trust Services, Bear Stearns Commercial Mortgage
Securities Inc.,
2005-PWR8; and (ii) in the case of the Trustee, at 135 South
LaSalle, Suite
1625, Chicago, Illinois 60603, Attention: Global Securitization
Trust Services
Group-Bear Stearns Commercial Mortgage Securities Inc., 2005-PWR8.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been
a
Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
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reason of a Liquidation Event occurring in respect of such Mortgage
Loan or the
related Mortgaged Property becoming an REO Property).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage Loan
that is a Corrected Mortgage Loan. Notwithstanding anything to the
contrary
contained herein, in no event shall a Non-Trust-Serviced Pooled
Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding Class of Principal Balance REMIC III Regular
Interests":
With respect to any REMIC III Component of either Class of Interest
Only
Certificates, the Class of Principal Balance Certificates or the
Class A-4FL
REMIC III Regular Interest, as the case may be, opposite which such
REMIC III
Component is set forth in the Preliminary Statement in the table
entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Corresponding REMIC II Regular Interest(s)": (a) With respect to
any
Class of Principal Balance Certificates or the Class A-4FL REMIC
III Regular
Interest, as the case may be, the one or more REMIC II Regular
Interests
opposite which such Class of Principal Balance Certificates or the
Class A-4FL
REMIC III Regular Interest is set forth in the Preliminary
Statement in the
table entitled "REMIC III--Corresponding REMIC II Regular
Interests"; (b) with
respect to any REMIC III Component of the Class X-1 Certificates,
the REMIC II
Regular Interest opposite which such REMIC III Component is set
forth in the
Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II
Regular Interests"; and (c) with respect to any REMIC III Component
of the Class
X-2 Certificates, the REMIC II Regular Interest opposite which such
REMIC III
Component is set forth in the Preliminary Statement in the table
entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is,
by
its terms, cross-defaulted and cross-collateralized with any other
Mortgage
Loan; provided that the Mortgage Loans that are part of any
Serviced Mortgage
Loan Group shall not constitute Cross-Collateralized Mortgage
Loans.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, the Pooled Mortgage Loan Sellers
or an
Affiliate of any of them.
"Cut-off Date": With respect to each Mortgage Loan, the Due Date
for
the Monthly Payment due on such Mortgage Loan in June 2005 (or, in
the case of
any Mortgage Loan that has its first Due Date in July 2005 or
thereafter, the
date that would have been its Due Date in June 2005 under the terms
of such
Mortgage Loan if a Monthly Payment were scheduled to be due in such
month).
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan,
the outstanding principal balance of such Mortgage Loan as of its
Cut-off Date,
after application of all payments of principal due on or before
such date,
whether or not received.
"Default Charges": Default Interest and/or late payment charges
that
are paid or payable, as the context may require, in respect of any
Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor
REO
Mortgage Loan), any amounts collected thereon, other than late
payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent
interest
(exclusive, if applicable, of Post-ARD Additional Interest) in
excess of
interest accrued on the principal balance of such Mortgage Loan (or
REO Mortgage
Loan) at the related Mortgage Rate, such excess interest arising
out of a
default under such Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
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"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to
which
there exists a Material Breach or a Material Document Defect that
has not been
cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan
that
is purchased or repurchased, as the case may be, from the Trust or
replaced with
one or more Replacement Pooled Mortgage Loans, in either case as
contemplated by
Section 2.03.
"Depositor": Bear Stearns Commercial Mortgage Securities Inc., or
its
successor in interest.
"Depository": The Depository Trust Company or any successor
Depository
hereafter named as contemplated by Section 5.03(c). The nominee of
the initial
Depository for purposes of registering those Certificates that are
to be
Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a
"clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial
Code of the State of New York and a "clearing agency" registered
pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Designated MERS Mortgage": As defined in clause (iii) of the
definition of "Mortgage File".
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule
III
hereto and any successor to such Sub-Servicer under the related
Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": With respect to any Distribution Date, the
fifth
(5th) Business Day preceding such Distribution Date.
"Directly Operate": With respect to any Administered REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management or
operation of such REO Property, the holding of such REO Property
primarily for
sale or lease, the performance of any construction work thereon or
any use of
such REO Property in a trade or business conducted by the Trust
other than
through an Independent Contractor; provided, however, that the
Trustee (or the
applicable Special Servicer on behalf of the Trustee) shall not be
considered to
Directly Operate an Administered REO Property solely because the
Trustee (or the
applicable Special Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(c).
"Disqualified Non-United States Tax Person": With respect to any
Class
R Certificate, any Non-United States Tax Person or agent thereof
other than: (1)
a Non-United States Tax Person that (a) holds such Class R
Certificate and, for
purposes of Treasury Regulations Section 1.860G-3(a)(3), is subject
to tax under
Section 882 of the Code, (b) certifies that it understands that,
for purposes of
Treasury Regulations Section 1.860E-1(c)(4)(ii), as a holder of
such Class R
Certificate for United States federal income tax purposes, it may
incur tax
liabilities in excess of any cash flows generated by such Class R
Certificate
and intends to pay taxes associated with holding such Class R
Certificate, and
(c) has furnished the Transferor, the Trustee, the Certificate
Administrator and
the Tax Administrator with an effective IRS Form W-8ECI or
successor form and
has agreed to update such form as required under the applicable
Treasury
regulations; or (2) a Non-United States Tax Person that has
delivered to the
Transferor, the Trustee, the Certificate Administrator and the Tax
Administrator
an opinion of nationally recognized tax counsel to the effect that
(x) the
Transfer
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of such Class R Certificate to it is in accordance with the
requirements of the
Code and the regulations promulgated thereunder and (y) such
Transfer of such
Class R Certificate will not be disregarded for United States
federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for Freddie Mac, a majority of its board of
directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv)
rural
electric and telephone cooperatives described in Section 1381 of
the Code or (v)
any other Person so designated by the Tax Administrator, based upon
an Opinion
of Counsel delivered to the Tax Administrator (but not at the Tax
Administrator's expense) to the effect that the holding of an
Ownership Interest
in a Class R Certificate by such Person may cause the Trust or any
Person having
an Ownership Interest in any Class of Certificates, other than such
Person, to
incur a liability for any federal tax imposed under the Code that
would not
otherwise be imposed but for the Transfer of an Ownership Interest
in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in
Section 7701
of the Code or successor provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
REMIC III Regular Interests for any Distribution Date, an amount of
interest
equal to the amount of Accrued Certificate Interest in respect of
such Class of
REMIC III Regular Interests for the related Interest Accrual
Period, reduced (to
not less than zero) by that portion, if any, of the Net Aggregate
Prepayment
Interest Shortfall for such Distribution Date allocated to such
Class of REMIC
III Regular Interests as provided below; provided, however, that if
the Class
Principal Balance of such Class of REMIC III Regular Interests is
deemed to have
been increased immediately prior to such Distribution Date pursuant
to the
proviso to the definition of "Class Principal Balance" because the
Principal
Distribution Amount for such Distribution Date includes any
collections of
amounts that (x) had previously been determined to constitute
Nonrecoverable
Advances, (y) were reimbursed to a party to this Agreement from the
principal
portions of P&I Advances and/or payments or other collections
of principal on
the Mortgage Pool in a Collection Period prior to the one related
to such
Distribution Date (pursuant to subsection (II)(iv) of Section
3.05(a)) and (z)
were recovered in the Collection Period related to such
Distribution Date, then
the Distributable Certificate Interest for such Class of REMIC III
Regular
Interests and such Distribution Date shall equal the sum of (i) the
amount of
the Distributable Certificate Interest for such Class of REMIC III
Regular
Interests and such Distribution Date, calculated as otherwise
provided above
without regard to this proviso, and (ii) an amount equal to the
interest that
would have accrued (on a 30/360 Basis), at the Pass-Through Rate
for such Class
of REMIC III Regular Interests and in effect for such Interest
Accrual Period,
on a principal amount equal to the deemed increase in such Class
Principal
Balance, during such Interest Accrual Period and each prior
Interest Accrual
Period related to a Distribution Date that occurred subsequent to
the earliest
Distribution Date on which a Realized Loss was allocated to such
Class of REMIC
III Regular Interests pursuant to Section 4.04. A portion of the
Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date
shall be
allocated to each Class of Principal Balance REMIC III Regular
Interests in an
amount equal to the product of (i) the amount of such Net Aggregate
Prepayment
Interest Shortfall and (ii) a fraction, the numerator of which is
the Accrued
Certificate Interest for such Class of Principal Balance REMIC III
Regular
Interests for such Distribution Date and the denominator of which
is the
aggregate amount of Accrued Certificate Interest for all Classes of
Principal
Balance REMIC III Regular Interests for such Distribution Date. No
portion of
any Net Aggregate Prepayment Interest Shortfall for any
Distribution Date shall
be allocated to the Class X-1 or Class X-2 Certificates.
"Distribution Account": The segregated account or accounts created
and
maintained by the Certificate Administrator on behalf of the
Trustee, pursuant
to Section 3.04(b), in trust for the Certificateholders, which
shall be entitled
"Wells Fargo Bank, National Association [or the name of any
successor
Certificate Administrator], as Certificate Administrator, on behalf
of LaSalle
Bank National Association [or the name of any successor Trustee],
as Trustee, in
trust
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for the registered holders of Bear Stearns Commercial Mortgage
Securities Inc.,
Commercial Mortgage Pass-Through Certificates, 2005-PWR8,
Distribution Account".
"Distribution Date": The 11th day of any month, or if such 11th day
is
not a Business Day, the Business Day immediately following such
11th day,
commencing in July 2005.
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Monthly Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Monthly
Payment on
such Mortgage Loan had been scheduled to be first due; and (iii)
any REO
Mortgage Loan, the day of the month set forth in the related
Mortgage Note on
which each Monthly Payment on the related Mortgage Loan had been
scheduled to be
first due.
"EDGAR": The Electronic Data Gathering, Analysis, and Retrieval
System
of the Commission, which is the computer system for the receipt,
acceptance,
review and dissemination of documents submitted to the Commission
in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, the
long-term deposit
or long-term unsecured debt obligations of which are rated no less
than "Aa2" by
Moody's (or an "Aa3" senior unsecured credit rating by Moody's in
the case of
any accounts maintained at LaSalle; provided that if such rating is
lowered to
below "Aa3" by Moody's, then the applicable Master Servicer shall
move such
applicable account or accounts within thirty (30) days of such
downgrade to an
institution that otherwise complies with this definition) and "AA-"
by Fitch (or
"A-" by Fitch so long as the short-term deposit or short-term
unsecured debt
obligations of such depository institution or trust company are
rated no less
than "F-1" by Fitch), if the deposits are to be held in the account
for more
than thirty (30) days, or the short-term deposit or short-term
unsecured debt
obligations of which are rated no less than "P-2" by Moody's and
"F-1" by Fitch,
if the deposits are to be held in the account for thirty (30) days
or less, in
any event at any time funds are on deposit therein, (ii) a
segregated trust
account maintained with the trust department of a federal or state
chartered
depository institution or trust company (which, subject to the
remainder of this
clause (ii), may include the Certificate Administrator or the
Trustee) acting in
its fiduciary capacity, and which, in either case, has a combined
capital and
surplus of at least $50,000,000 and is subject to supervision or
examination by
federal or state authority and to regulations regarding fiduciary
funds on
deposit similar to Title 12 of the Code of Federal Regulations
Section 9.10(b),
(iii) for so long as WFB serves as a Master Servicer under this
Agreement, an
account maintained with WFB or Wells Fargo Bank Iowa, N.A., each a
wholly-owned
subsidiary of Wells Fargo & Co., provided that subsidiary's or
its parent's (A)
commercial paper, short-term unsecured debt obligations or other
short-term
deposits are rated at least "P-2" 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 "AA-" by
Fitch (or "A-"
by Fitch so long as the short-term deposit or short-term unsecured
debt
obligations of such subsidiary or its parent are rated no less than
"F-1" by
Fitch), if the deposits are to be held in the account for more than
30 days, or
(iv) an account maintained with any one of the following: (x) in
the case of an
account that does not and may not potentially contain any funds
related to any
Serviced Non-Pooled Mortgage Loan, another insured depository
institution that
is acceptable to each Rating Agency for the Rated Certificates (as
evidenced by
a written confirmation to the Trustee from each Rating Agency that
the use of
such account would not, in and of itself, result in an Adverse
Rating Event with
respect to any Class of Rated Certificates), (y) in the case of an
account that
does or may potentially contain any funds related to any Serviced
Non-Pooled
Mortgage Loan and also does or may potentially contain any funds
related to one
or more Pooled Mortgage Loans, another insured depository
institution that is
acceptable to each Rating Agency for the Rated Certificates and
each applicable
Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities
(as evidenced by a written confirmation to the Trustee from each
Rating Agency
that the use of such account would not, in and of itself, result in
an Adverse
Rating Event with respect to any Class of Rated Certificates rated
by such
Rating Agency and also from each applicable Rating Agency that the
use of such
account would not, in and of itself, result in an Adverse Rating
Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan
Securities
rated by such
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applicable Rating Agency), as applicable, and (z) in the case of an
account that
does or may potentially contain any funds related to any Serviced
Non-Pooled
Mortgage Loan and does not and may not potentially contain any
funds related to
one or more Pooled Mortgage Loans, another insured depository
institution that
is acceptable to each applicable Rating Agency for the applicable
Non-Pooled
Pari Passu Companion Loan Securities (as evidenced by a written
confirmation to
the Trustee from each such applicable Rating Agency that the use of
such account
would not, in and of itself, result in an Adverse Rating Event with
respect to
any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such
applicable Rating Agency), as applicable.
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the applicable Special
Servicer is
required to make or to request a Master Servicer to make, that must
be made
within five Business Days of such Special Servicer becoming aware
that it must
be made in order to avoid any material penalty, any material harm
to a Mortgaged
Property securing a Serviced Mortgage Loan or any other material
adverse
consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property securing a Serviced Mortgage Loan or any Administered REO
Property, any
insurance policy covering pollution conditions and/or other
environmental
conditions that is maintained from time to time in respect of such
Mortgaged
Property or REO Property, as the case may be, for the benefit of,
among others,
the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or a
Special Servicer for the account of the Borrower under any Serviced
Mortgage
Loan for application toward the payment of real estate taxes,
assessments,
insurance premiums (including with respect to any Environmental
Insurance
Policy), ground rents (if applicable) and similar items in respect
of the
related Mortgaged Property.
"Euroclear": The Euroclear System or any successor thereto.
"Event of Default": As defined in Section 7.01(a).
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Pooled
Mortgage Loan or an Administered REO Property (or the proceeds of
the final
payment (including any full, partial or discounted payoff) on a
defaulted Pooled
Mortgage Loan or a Pooled Mortgage Loan that is a Corrected
Mortgage Loan that
were Received by the Trust, net of any and all fees, expenses and
costs payable
therefrom), over (b) the sum of (i) the amount needed to pay all
principal,
interest (including Additional Interest (if applicable) and Default
Interest),
Prepayment Premiums or Yield Maintenance Charges (as applicable)
and late
payment charges payable with respect to such Pooled Mortgage Loan
or the related
REO Pooled Mortgage Loan, as the case may be (together with,
without
duplication, any outstanding Unliquidated Advances in respect of
any such
principal or interest), in full, (ii) any other fees that would
constitute
Additional Master Servicing Compensation and/or Additional Special
Servicing
Compensation, (iii) any related unreimbursed Servicing Advances
(together with,
without duplication, outstanding Unliquidated Advances in respect
of prior
Servicing Advances), (iv) all unpaid Advance Interest on any
related Advances
(but (for the avoidance of doubt) excluding any Unliquidated
Advances), (v) any
related Liquidation Fee and/or Special Servicing Fees paid or
payable in respect
of such Specially Serviced Mortgage Loan or the related REO Pooled
Mortgage
Loan, (vi) any other Additional Trust Fund Expenses paid or payable
in respect
of such Pooled Mortgage Loan or REO Property, and (vii) in the case
of any REO
Property relating to a Serviced Mortgage Loan Group, any portion of
such Net
Liquidation Proceeds payable to any one or more of the related
Serviced
Non-Pooled Mortgage Loan Noteholder(s).
"Excess Liquidation Proceeds Account": The segregated account
created
and maintained by the Certificate Administrator in the name of the
Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders,
which shall be
entitled "LaSalle Bank National Association [or name of any
successor Trustee],
as Trustee, in trust for the
-29-
registered holders of Bear Stearns Commercial Mortgage Securities
Inc.,
Commercial Mortgage Pass-Through Certificates, 2005-PWR8, Excess
Liquidation
Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced Mortgage
Loan
(and any successor REO Mortgage Loan with respect thereto), that
portion of the
Master Servicing Fees that accrue at a per annum rate equal to the
Excess
Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), a
rate per
annum equal to (i) in the case of a Pooled Mortgage Loan, the
annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan
Schedule and (ii)
in the case of each Non-Pooled Mortgage Loan, zero (0) basis
points; provided
that such rate shall be subject to reduction at any time following
any
resignation of a Master Servicer pursuant to Section 6.04 (if no
successor is
appointed in accordance with Section 6.04(b)) or any termination of
a Master
Servicer pursuant to Section 7.01, to the extent reasonably
necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a
qualified successor
Master Servicer (which successor may include the Trustee) that
meets the
requirements of Section 7.02.
"Excess Servicing Fee Right": With respect to each Mortgage Loan
(and
any successor REO Mortgage Loan with respect thereto), the right to
receive
Excess Servicing Fees. In the absence of any transfer of the Excess
Servicing
Fee Right, the related Master Servicer shall be the owner of such
Excess
Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bear, Stearns & Co. Inc.,
(ii)
Morgan Stanley & Co. Incorporated, (iii) any Person directly or
indirectly,
through one or more intermediaries, controlling, controlled by or
under common
control with Bear, Stearns & Co. Inc. or Morgan Stanley &
Co. Incorporated and
(iv) any member of any underwriting syndicate or selling group of
which any
Person described in clauses (i), (ii) and (iii) is a manager or
co-manager with
respect to a Class of Certificates that is investment grade rated
by at least
one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted
Pooled
Mortgage Loan, the amount that, in the applicable Special
Servicer's reasonable
judgment, taking into account the factors set forth in the first
sentence of the
second paragraph of Section 3.18(b) and such other factors as such
Special
Servicer reasonably deems appropriate, is the fair value of such
Mortgage Loan.
"Fannie Mae": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in
connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the applicable
Special Servicer with respect to any Specially Serviced Mortgage
Loan, Corrected
Mortgage Loan or Administered REO Property, or by the applicable
Master Servicer
with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO
Property, that there has been a recovery of all Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries
that the
applicable Special Servicer or such Master Servicer has determined,
in
accordance with the Servicing Standard, will be ultimately Received
by the
Trust; provided that the term Final Recovery Determination shall
not apply to:
(i) a Mortgage Loan that was paid in full (including by means of a
payoff on
behalf of the Borrower, or the purchase of such Mortgage Loan, by a
mezzanine
lender or another creditor of the related Borrower in connection
with a Mortgage
Loan default, as set forth in the related intercreditor agreement)
or (ii) a
Mortgage Loan or REO Property, as the case may be, that was
purchased by (a) any
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage
Loan
Purchase Agreement, (b) a Purchase Option Holder or its assignee
pursuant to
Section 3.18, (c) any Controlling Class Certificateholder(s), a
Master Servicer
or the General Special Servicer pursuant to Section 9.01, (d) any
related
Non-
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Pooled Subordinate Noteholder pursuant to a Mortgage Loan Group
Intercreditor
Agreement (if such Mortgage Loan is included in a Serviced Mortgage
Loan Group),
or (e) any other party with a purchase option in respect of a
Non-Trust-Serviced
Pooled Mortgage Loan pursuant to the related Mortgage Loan Group
Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement; and
provided,
further, that, for purposes of making any such determination with
respect to a
Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, the
applicable Master Servicer shall be entitled to rely on, and shall
be required
to follow, any comparable determination made by the related
Non-Trust Master
Servicer or the related Non-Trust Special Servicer.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation,
or any successor appointed as provided herein.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall
be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the other parties hereto, and specific ratings of
Fitch, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated. References herein to "applicable rating category"
(other than such
references to "highest applicable rating category") shall, in the
case of Fitch,
be deemed to refer to such applicable rating category of Fitch,
without regard
to any plus or minus or other comparable rating qualification.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GAAP": Generally accepted accounting principles in the United
States.
"General Special Servicer": ARCap Servicing, Inc. (or its successor
in
interest), in its capacity as special servicer with respect to the
Mortgage Pool
(exclusive of the Lock Up Storage Centers Loan Group) and any
related REO
Properties hereunder, or any successor special servicer with
respect to the
Mortgage Pool (exclusive of the Lock Up Storage Centers Loan Group)
and any
related REO Properties appointed as provided herein.
"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part
1
of Subchapter J of the Code.
"Grantor Trust Pool": Any of Grantor Trust A-4FL, Grantor Trust V
or
Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of
the
Code, including Treasury Regulations Section 301.7701-4(c)(2).
"Grantor Trust A-4FL": The Grantor Trust designated as such in
Section
2.18(c).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.18(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.18(a).
"Ground Lease": The ground lease pursuant to which any Borrower
holds a
leasehold interest in the related Mortgaged Property, together with
any
estoppels or other agreements executed and delivered by the ground
lessor in
favor of the lender under the related Mortgage Loan(s).
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than
one
Mortgaged Property or REO Property.
-31-
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including those so identified
pursuant to
CERCLA or any other federal, state or local environmental related
laws and
regulations now existing or hereafter enacted, and specifically
including
asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and
any
substances classified as being "in inventory", "usable work in
process" or
similar classification which would, if classified as unusable, be
included in
the foregoing definition.
"Holder": As defined in the definition of "Certificateholder".
"Independent": When used with respect to any specified Person, any
such
Person who (i) is in fact independent of the Depositor, each Pooled
Mortgage
Loan Seller, each Master Servicer, each Primary Servicer, each
Special Servicer,
the Certificate Administrator, the Tax Administrator, the Trustee,
the Fiscal
Agent, each Non-Trust Master Servicer (insofar as the relevant
matter involves a
Non-Trust-Serviced Pooled Mortgage Loan (whether alone or together
with one or
more other Pooled Mortgage Loans)), each Non-Trust Special Servicer
(insofar as
the relevant matter involves a Non-Trust-Serviced Pooled Mortgage
Loan (whether
alone or together with one or more other Pooled Mortgage Loans)),
the
Controlling Class Representative and any and all Affiliates
thereof, (ii) does
not have any direct financial interest in or any material indirect
financial
interest in any of the Depositor, any Pooled Mortgage Loan Seller,
either Master
Servicer, either Primary Servicer, either Special Servicer, the
Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal
Agent, the related
Non-Trust Master Servicer (insofar as the relevant matter involves
a
Non-Trust-Serviced Pooled Mortgage Loan), the related Non-Trust
Special Servicer
(insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage
Loan), the Controlling Class Representative or any Affiliate
thereof, and (iii)
is not connected with the Depositor, any Pooled Mortgage Loan
Seller, either
Master Servicer, either Primary Servicer, either Special Servicer,
the
Certificate Administrator, the Tax Administrator, the Trustee, the
Fiscal Agent,
the related Non-Trust Master Servicer (insofar as the relevant
matter involves a
Non-Trust-Serviced Pooled Mortgage Loan), the related Non-Trust
Special Servicer
(insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage
Loan), the Controlling Class Representative or any Affiliate
thereof as an
officer, employee, promoter, underwriter, trustee, partner,
director or Person
performing similar functions; provided, however, that a Person
shall not fail to
be Independent of the Depositor, any Pooled Mortgage Loan Seller,
either Master
Servicer, either Primary Servicer, either Special Servicer, the
Trustee, the
Fiscal Agent, the applicable Non-Trust Master Servicer, the
applicable Non-Trust
Special Servicer, the Controlling Class Representative or any
Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of
any class of
securities issued by the Depositor, such Pooled Mortgage Loan
Seller, such
Master Servicer, such Primary Servicer, such Special Servicer, the
Trustee, such
Fiscal Agent, such Non-Trust Master Servicer, such Non-Trust
Special Servicer,
the Controlling Class Representative or any such Affiliate thereof,
as the case
may be, provided that such ownership constitutes less than 1% of
the total
assets owned by such Person.
"Independent Contractor": (a) Any Person that would be an
"independent
contractor" with respect to any REMIC Pool within the meaning of
Section
856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust
(except that the ownership test set forth in that section shall be
considered to
be met by any Person that owns, directly or indirectly, 35% or more
of any Class
of Certificates, or such other interest in any Class of
Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to
either Master
Servicer, either Special Servicer, the Trustee or the Trust,
delivered to the
Trustee), provided that (i) the Trust does not receive or derive
any income from
such Person and (ii) the relationship between such Person and the
Trust is at
arm's length, all within the meaning of Treasury Regulations
Section
1.856-4(b)(5); or (b) any other Person upon receipt by the Trustee
of an Opinion
of Counsel, which shall be at no expense to the Trustee or the
Trust, to the
effect that the taking of any action in respect of any Administered
REO Property
by such Person, subject to any conditions therein specified, that
is otherwise
herein contemplated to be taken by an Independent Contractor will
not cause such
Administered REO Property to cease to qualify as "foreclosure
property" within
the meaning of Section 860G(a)(8) of the Code, or cause any income
realized in
respect of such Administered REO Property to fail to qualify as
Rents from Real
Property.
"Initial Pool Balance": The aggregate Cut-off Date Principal
Balance of
all the Original Pooled Mortgage Loans.
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"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property,
any hazard insurance policy, terrorism insurance policy, flood
insurance policy,
title insurance policy, earthquake insurance policy, Environmental
Insurance
Policy, business interruption insurance policy or other insurance
policy that is
maintained from time to time in respect of such Mortgage Loan (or
the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy and
received by or on behalf of the Trustee, a Master Servicer, a
Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage
Loan or any
related REO Property, any such proceeds remitted to the applicable
Master
Servicer by the related Non-Trust Master Servicer or the related
Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement), to the
extent such
proceeds are not applied to the restoration of the related
Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or
released to
the related Borrower or any other third-party pursuant to the terms
of the
related Mortgage or lease, in accordance with the Servicing
Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any
REMIC II Regular
Interest, the Class A-4FL Certificates, any REMIC III Regular
Interest or any
particular REMIC III Component of a Class of Interest Only
Certificates, in each
case consisting of one of the following: (i) a 30/360 Basis; or
(ii) an
Actual/360 Basis.
"Interest Accrual Period": With respect to (i) any REMIC I Regular
Interest, any REMIC II Regular Interest, any REMIC III Regular
Interest or any
particular REMIC III Component of a Class of Interest Only
Certificates, for any
Distribution Date, the calendar month immediately preceding the
month in which
such Distribution Date occurs, and (ii) the Class A-4FL
Certificates, for any
Distribution Date, 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 Only Certificates": Collectively, the Class X-1 and Class
X-2
Certificates.
"Interest Reserve Account": The segregated account (or sub-account
of
the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section
3.04(c), in trust
for the Certificateholders, which shall be entitled "Wells Fargo
Bank, National
Association [or the name of any successor Certificate
Administrator], as
Certificate Administrator, on behalf of LaSalle Bank National
Association [or
the name of any successor Trustee], as Trustee, in trust for the
registered
holders of Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage
Pass-Through Certificates, 2005-PWR8, Interest Reserve Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage
Loan
that is an Interest Reserve Loan (or the related successor REO
Pooled Mortgage
Loan), for any Distribution Date that occurs during February of
2006 or February
of any year thereafter or during January of 2006 or January of any
year
thereafter that is not a leap year, an amount equal to one day's
interest
accrued at the related Net Mortgage Rate on the related Stated
Principal Balance
as of the end of the Collection Period related to such Distribution
Date (or, in
the case of any Pooled Mortgage Loan for which the Due Date is on
the 3rd, 4th
or 5th day of each month, as of the Due Date in the month in which
such
Distribution Date occurs), but prior to giving effect to the
application of any
amounts due on the Due Date occurring in such Collection Period
(or, in the case
of any Pooled Mortgage Loan for which the Due Date is on the 3rd,
4th or 5th day
of each month, due on the Due Date in the month in which such
Distribution Date
occurs), to the extent that a Monthly Payment is
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Received by the Trust with respect to such Interest Reserve Loan
for the related
Due Date in the same month as such Distribution Date on or before
the related
Master Servicer Remittance Date or a P&I Advance is made under
this Agreement
with respect to such Interest Reserve Loan by such Distribution
Date. For
purposes of calculating Interest Reserve Amounts, the Net Mortgage
Rate for each
Interest Reserve Loan shall be the Net Mortgage Rate as of the
Closing Date,
without regard to any modifications, extensions, waivers or
amendments of such
Interest Reserve Loan subsequent to the Closing Date (whether
entered into by
the applicable Master Servicer, the applicable Special Servicer,
the applicable
Non-Trust Master Servicer or the applicable Non-Trust Special
Servicer or in
connection with any bankruptcy, insolvency or other similar
proceeding involving
the related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an
Actual/360
Mortgage Loan (or any successor REO Pooled Mortgage Loan with
respect thereto).
"Investment Account": Each of the Collection Accounts, the
Companion
Note Custodial Accounts, the Subordinate Note Custodial Accounts,
the Servicing
Accounts, the Reserve Accounts, the REO Accounts, the Distribution
Account, the
Interest Reserve Account and the Excess Liquidation Proceeds
Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"Investor-Based Exemption": 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 any
federal, state or
local law materially similar to the Title I of ERISA or Section
4975 of the
Code.
"IRS": The Internal Revenue Service or any successor thereto.
"Issue Price": With respect to each Class of Certificates, the
"issue
price" as defined in the Code and Treasury regulations promulgated
thereunder.
"JL Holdings Portfolio Controlling Party": The Controlling Class
Representative at all times.
"JL Holdings Portfolio Intercreditor Agreement": Collectively, (i)
that
certain A Notes Intercreditor Agreement, dated as of June 17, 2005,
by and
between Wells Fargo Bank, National Association, as initial note A-1
holder, and
Wells Fargo Bank, National Association, as initial note A-2 holder,
and (ii)
that certain Amended and Restated Intercreditor and Servicing
Agreement, dated
as of June 17, 2005, by and between Wells Fargo Bank, National
Association, as
initial note A holder, and Wells Fargo Bank, National Association,
as initial
note B holder.
"JL Holdings Portfolio Loan Group": Collectively, the JL Holdings
Portfolio Pooled Mortgage Loan, the JL Holdings Portfolio
Non-Pooled Pari Passu
Companion Loan and the JL Holdings Portfolio Non-Pooled Subordinate
Loan
(including any successor REO Mortgage Loans with respect to such
loans).
"JL Holdings Portfolio Mortgaged Properties": The Mortgaged
Properties
collectively identified on the Pooled Mortgage Loan Schedule as "JL
Holdings
Portfolio".
"JL Holdings Portfolio Non-Pooled Pari Passu Companion Loan": The
loan
in the original principal amount of $15,000,000 that is secured by
the same
mortgage instrument encumbering the JL Holdings Portfolio Mortgaged
Property as
the JL Holdings Portfolio Pooled Mortgage Loan and the JL Holdings
Portfolio
Non-Pooled Subordinate Loan. The JL Holdings Portfolio Non-Pooled
Pari Passu
Companion Loan will not be part of the Mortgage Pool and will not
be considered
a Pooled Mortgage Loan.
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"JL Holdings Portfolio Non-Pooled Subordinate Loan": The mortgage
loan,
with an original principal balance in the amount of $29,800,000
that is secured
by the same Mortgage encumbering the JL Holdings Portfolio
Mortgaged Properties
as the JL Holdings Portfolio Pooled Mortgage Loan and is
subordinate in right of
payment to the JL Holdings Portfolio Pooled Mortgage Loan and is
held as of the
Closing Date by Wells Fargo Bank, National Association. The JL
Holdings
Portfolio Non-Pooled Subordinate Loan is not a "Pooled Mortgage
Loan" or part of
the Trust Fund, any REMIC Pool or any Grantor Trust Pool.
"JL Holdings Portfolio Non-Pooled Subordinate Noteholder": The
holder
or holders of the related Mortgage Note evidencing the JL Holdings
Portfolio
Non-Pooled Subordinate Loan.
"JL Holdings Portfolio Pooled Mortgage Loan": The Pooled Mortgage
Loan
in the original principal amount of $15,000,000 that is secured by
the Mortgage
encumbering the JL Holdings Portfolio Mortgaged Properties.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan,
all
amounts Received by the Trust thereon during any Collection Period,
whether as
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or
otherwise, which (as applied under Section 1.03) represent
collections of the
principal and/or interest portions of a Monthly Payment (other than
a Balloon
Payment) or an Assumed Monthly Payment in respect of such Pooled
Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period
(or, in the case
of any Pooled Mortgage Loan for which the Due Date is on the 3rd,
4th or 5th day
of each month, due or deemed due on the Due Date in the calendar
month preceding
the month in which such Collection Period ends) or on a Due Date
during or prior
to the month of the Cut-off Date for such Pooled Mortgage Loan, and
not
previously Received by the Trust; and (b) with respect to any REO
Pooled
Mortgage Loan, all amounts Received by the Trust in connection with
the related
REO Property during any Collection Period, whether as Insurance
Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which
(as applied under Section 1.03) represent collections of the
principal and/or
interest portions of a Monthly Payment (other than a Balloon
Payment) or an
Assumed Monthly Payment in respect of the predecessor Pooled
Mortgage Loan or
the principal and/or interest portions of an Assumed Monthly
Payment in respect
of such REO Pooled Mortgage Loan due or deemed due on a Due Date in
a previous
Collection Period (or, in the case of any Pooled Mortgage Loan for
which the Due
Date is on the 3rd, 4th or 5th day of each month, due or deemed due
on the Due
Date in the calendar month preceding the month in which such
Collection Period
ends) and not previously Received by the Trust. Late Collections do
not include
Default Charges.
"Latest Possible Maturity Date": With respect to any REMIC I
Regular
Interest, any REMIC II Regular Interest or any REMIC III Regular
Interest, the
"latest possible maturity date" thereof, calculated solely for
purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any
third-party
letter of credit delivered by or at the direction of the related
Borrower
pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or
deposit otherwise required to be made into, a Reserve Fund or
otherwise pledged
or assigned by the related Borrower as Additional Collateral.
"LIBOR": With respect to the initial Interest Accrual Period for
the
Class A-4FL Certificates, a rate per annum equal to 3.23172% and,
with respect
to each other Interest Accrual Period for the Class A-4FL
Certificates, the rate
per annum for such Interest Accrual Period determined as provided
below. With
respect to each such other Interest Accrual Period for the Class
A-4FL
Certificates, LIBOR shall be 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 date
that is two
(2) LIBOR Banking Days prior to the LIBOR Reset Date for such
Interest Accrual
Period. If such rate does not appear on the Telerate Page 3750,
LIBOR shall be
the rate determined (as described below) on the basis of the rates
at which
deposits in U.S. dollars are offered by four major banks in the
London interbank
market selected by the Class A-4FL Swap Counterparty in its sole
discretion
(each, a "LIBOR Reference Bank") at approximately 11:00 a.m. London
time, on the
date that is two (2) LIBOR Banking Days prior to the LIBOR Reset
Date
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for the related Interest Accrual Period to prime banks in the
London interbank
market for a period of one month commencing on such LIBOR Reset
Date and in an
amount that is representative for a single transaction in the
relevant market at
the relevant time. The Class A-4FL Swap Counterparty will request
the principal
London office of each of the LIBOR Reference Banks to provide a
quotation of its
rate. If at least two such quotations are provided, LIBOR for such
LIBOR Reset
Date will be the rate determined by the Class A-4FL Swap
Counterparty to be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as
requested, LIBOR shall be the rate per annum which the Class A-4FL
Swap
Counterparty determines to be the arithmetic mean of the rates
quoted by major
banks in New York City, New York selected by the Class A-4FL Swap
Counterparty,
at approximately 11:00 a.m. New York City time, on the LIBOR Reset
Date for
loans in U.S. dollars to leading European banks for a period of one
month
commencing on the LIBOR Reset Date and in an amount that is
representative for a
single transaction in the relevant market at the relevant time. All
of the
parties to this Agreement shall be entitled to conclusively rely on
the Class
A-4FL Swap Counterparty's determinations of LIBOR from time to
time.
"LIBOR Banking Day": Any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign
currency) in
London, England.
"LIBOR Reset Date": The first day of each Interest Accrual Period
(other than the initial Interest Accrual Period) for the Class
A-4FL
Certificates.
"Liquidation Event": (a) With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is paid in full, (ii) a
Final Recovery
Determination is made with respect to such Mortgage Loan, (iii)
such Mortgage
Loan is repurchased or replaced by a Pooled Mortgage Loan Seller
pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by
Section
2.03, (iv) such Mortgage Loan is purchased by the Special Servicer,
the Majority
Controlling Class Certificateholder(s) or any assignee of either of
them
pursuant to Section 3.18, (v) such Mortgage Loan is purchased by
any Controlling
Class Certificateholder(s), a Master Servicer or the Special
Servicer pursuant
to Section 9.01, (vi) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates
pursuant to Section
9.01, (vii) in the case of any Pooled Mortgage Loan that is
included in a
Mortgage Loan Group that includes one or more Non-Pooled Mortgage
Loans, such
Mortgage Loan is acquired by a related Non-Pooled Noteholder
pursuant to the
related Mortgage Loan Group Intercreditor Agreement, (viii) such
Mortgage Loan
is paid off or purchased by the holder of a related mezzanine loan
or another
creditor of the Borrower in connection with a Mortgage Loan
default, if so
permitted and set forth in the related intercreditor agreement, or
(ix) in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage
Loan is
purchased by a holder of a purchase option with respect thereto
pursuant to the
related Non-Trust Servicing Agreement and/or the related Mortgage
Loan Group
Intercreditor Agreement; and (b) with respect to any REO Property
(and the
related REO Mortgage Loan), any of the following events: (i) a
Final Recovery
Determination is made with respect to such REO Property, (ii) such
REO Property
is repurchased or replaced by a Pooled Mortgage Loan Seller
pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by
Section
2.03, (iii) such REO Property is purchased by a Master Servicer,
the General
Special Servicer or any Controlling Class Certificateholder(s)
pursuant to
Section 9.01, or (iv) such REO Property is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates
pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise
covered by
Servicing Advances) in connection with the liquidation of any
Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or Section
3.18
(including legal fees and expenses, committee or referee fees and,
if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to
the
applicable Special Servicer in connection with certain events in
respect of a
Specially Serviced Mortgage Loan or an REO Property pursuant to,
Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is
payable, 1.0%.
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"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust in
connection with: (i) the liquidation of a Mortgaged Property, REO
Property or
other collateral constituting security for a defaulted Mortgage
Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any
portion thereof required to be released to the related Borrower in
accordance
with applicable law and/or the terms and conditions of the related
Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment
obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted
Pooled
Mortgage Loan by the Special Servicer, the Majority Controlling
Class
Certificateholder(s) or any assignee of either of them pursuant to
Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan or REO
Property by
a Pooled Mortgage Loan Seller pursuant to the related Pooled
Mortgage Loan
Purchase Agreement as contemplated by Section 2.03 of this
Agreement; (v) the
purchase of a Pooled Mortgage Loan or REO Property by a Master
Servicer, a
Special Servicer and/or any Controlling Class Certificateholder(s)
pursuant to
Section 9.01; (vi) the acquisition of any Pooled Mortgage Loan or
REO Property
by the Sole Certificateholder(s) in exchange for all the
Certificates pursuant
to Section 9.01; (vii) the purchase of a Pooled Mortgage Loan
included in a
Mortgage Loan Group that includes one or more Non-Pooled
Subordinate Loans by a
related Non-Pooled Subordinate Noteholder pursuant to the related
Mortgage Loan
Group Intercreditor Agreement, (viii) the purchase of a
Non-Trust-Serviced
Pooled Mortgage Loan by any holder of a purchase option with
respect thereto
pursuant to the related Non-Trust Servicing Agreement and/or the
related
Mortgage Loan Group Intercreditor Agreement; or (ix) the payoff or
purchase of a
Pooled Mortgage Loan or REO Property by the holder of a related
mezzanine loan
or another creditor of the Borrower in connection with a Mortgage
Loan default,
if so permitted and set forth in the related intercreditor
agreement.
"Lock Up Storage Centers Borrower": The Borrower under the Lock Up
Storage Centers Loan Group.
"Lock Up Storage Centers Change of Control Event": The event that
occurs if, as of any date of determination, (i) the then
outstanding principal
balance of the Lock Up Storage Centers Non-Pooled Subordinate Loan
minus (ii)
any Appraisal Reduction Amount allocable to the Lock Up Storage
Centers
Non-Pooled Subordinate Loan, together with any related Realized
Losses allocable
to the Lock Up Storage Centers Non-Pooled Subordinate Loan and
Additional Trust
Fund Expenses allocable to the Lock Up Storage Centers Non-Pooled
Subordinate
Loan is less than 25% of the initial principal balance of the Lock
Up Storage
Centers Non-Pooled Subordinate Loan, less any payments of principal
(whether as
scheduled amortization, prepayments or otherwise).
"Lock Up Storage Centers Controlling Party": The Lock Up Storage
Centers Non-Pooled Subordinate Noteholder at any time when a Lock
Up Storage
Centers Change of Control Event does not exist or the Controlling
Class
Representative at any time when a Lock Up Storage Centers Change of
Control
Event exists.
"Lock Up Storage Centers Intercreditor Agreement": That certain
Co-Lender Agreement, dated as of June 21, 2005, by and between PMCF
as initial
note A holder and The Prudential Insurance Company of America, as
initial note B
holder.
"Lock Up Storage Centers Loan Group": Collectively, the Lock Up
Storage
Centers Pooled Mortgage Loan and the Lock Up Storage Centers
Non-Pooled
Subordinate Loan (including any successor REO Mortgage Loans with
respect to
such loans).
"Lock Up Storage Centers Mortgaged Properties": The Mortgaged
Properties collectively identified on the Pooled Mortgage Loan
Schedule as "Lock
Up Storage Centers Portfolio".
"Lock Up Storage Centers Non-Pooled Subordinate Loan": The mortgage
loan, with an original principal balance in the amount of
$35,850,000 that is
secured by the same Mortgage encumbering the Lock Up Storage
Centers Mortgaged
Properties as the Lock Up Storage Centers Pooled Mortgage Loan and
is
subordinate in right of payment to the Lock Up Storage Centers
Pooled Mortgage
Loan and is held as of the Closing Date by The Prudential Insurance
Company of
America. The Lock Up Storage Centers Non-Pooled Subordinate Loan is
not a
"Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool or
any Grantor
Trust Pool.
-37-
"Lock Up Storage Centers Non-Pooled Subordinate Noteholder": The
holder
or holders of the related Mortgage Note evidencing the Lock Up
Storage Centers
Non-Pooled Subordinate Loan.
"Lock Up Storage Centers Pooled Mortgage Loan": The Pooled Mortgage
Loan in the original principal amount of $56,330,000 that is
secured by the
Mortgage encumbering the Lock Up Storage Centers Mortgaged
Properties.
"Lock Up Storage Centers Special Servicer": PAR, in its capacity as
special servicer with respect to the Lock Up Storage Centers Loan
Group, or any
successor special servicer of the Lock Up Storage Centers Loan
Group appointed
as provided herein.
"Lock Up Storage Centers Sub-Servicer": Any Sub-Servicer of the
Lock Up
Storage Centers Loan Group appointed by the applicable Master
Servicer in
accordance with the terms hereof.
"Lock Up Storage Centers Sub-Servicing Agreement": The
Sub-Servicing
Agreement between the Lock Up Storage Centers Sub-Servicer, if any,
and the
applicable Master Servicer.
"Majority Controlling Class Certificateholder(s)": As of any date
of
determination, any single Holder or group of Holders of
Certificates
representing a majority of the Voting Rights allocated to the Class
of Principal
Balance Certificates that constitutes, or the Classes of Principal
Balance
Certificates that constitute, the Controlling Class as of such date
of
determination.
"Marquis Apartments Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of March 1, 2005, by and among
BSCMI, as
initial holder of note 1 and lead lender, and BSCMI, as initial
holder of loan 2
and co-lender.
"Marquis Apartments Loan Group": The Marquis Apartments Pooled
Mortgage
Loan and the Marquis Apartments Non-Pooled Pari Passu Companion
Loan, together.
"Marquis Apartments Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Marquis
Apartments".
"Marquis Apartments Non-Pooled Pari Passu Companion Loan": The
mortgage
loan, with original principal balance in the amount of $45,000,000
that is
secured by the same Mortgage encumbering the Marquis Apartments
Mortgaged
Property as the Marquis Apartments Pooled Mortgage Loan and is pari
passu in
right of payment with the Marquis Apartments Pooled Mortgage Loan.
The Marquis
Apartments Non-Pooled Pari Passu Companion Loan is not a "Pooled
Mortgage Loan"
or part of the Trust Fund, any REMIC Pool or any Grantor Trust
Pool.
"Marquis Apartments Pooled Mortgage Loan": The Pooled Mortgage Loan
in
the original principal amount of $5,000,000 secured by the Marquis
Apartments
Mortgaged Property.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage
Loan is a PMCF
Pooled Mortgage Loan, PAR, or any successor thereto appointed as
provided
herein, or (b) if such Mortgage Loan is a BSCMI Pooled Mortgage
Loan, a PCF
Pooled Mortgage Loan, a WFB Pooled Mortgage Loan or a Nationwide
Pooled Mortgage
Loan, WFB, or any successor thereto appointed as provided herein.
Any reference
herein to a "Master Servicer" hereunder (including Articles VI and
VII hereof)
shall, if such Master Servicer is the one described by clause (a)
of this
definition, also be construed to refer to the Servicer Report
Administrator to
the extent of the rights granted to and obligations imposed on the
Servicer
Report Administrator under this Agreement.
"Master Servicer Floating Rate Sub-Account": As defined in Section
3.30(b).
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"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal
to (a) all
amounts on deposit in such Master Servicer's Collection Account as
of 11:00
a.m., New York City time, on such Master Servicer Remittance Date,
net of (b)
any portion of the amounts described in clause (a) of this
definition that
represents one or more of the following: (i) collected Monthly
Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date
following the end
of the related Collection Period (other than, in the case of any
Pooled Mortgage
Loan for which the Due Date is on the 3rd, 4th or 5th day of each
month and such
day in the current month happens to be later than the end of such
related
Collection Period, in which case such collected Monthly Payment
shall not be
withheld until the following month as otherwise contemplated by
this clause
(i)), (ii) to the extent not covered by clause (i) above, any
payments of
principal (including Principal Prepayments) and interest (including
Post-ARD
Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation
Proceeds Received by the Trust with respect to any Pooled Mortgage
Loan or REO
Property after the end of the related Collection Period, (iii) any
Prepayment
Premiums and/or Yield Maintenance Charges Received by the Trust
with respect to
any Pooled Mortgage Loan or successor REO Pooled Mortgage Loan with
respect
thereto after the end of the related Collection Period, (iv) any
Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to
any Person from
such Collection Account pursuant to clauses (ii) through (xxi) of
Section
3.05(a), and (vi) any amounts deposited in such Collection Account
in error;
provided that the Master Servicer Remittance Amount with respect to
each Master
Servicer for the Master Servicer Remittance Date that occurs in the
same
calendar month as the anticipated Final Distribution Date shall be
calculated
without regard to clauses (b)(i), (b)(ii), (b)(iii) and (b)(iv) of
this
definition and provided, further, however, that the foregoing
provisions of this
definition shall be construed in a manner that is consistent with
Section
3.02(d).
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the fee
designated as such
and payable to the applicable Master Servicer pursuant to Section
3.11(a). The
Master Servicing Fee for each Serviced Mortgage Loan includes the
monthly fees
payable to any applicable primary service or subservicer engaged by
the
applicable Master Servicer and such Master Servicer shall pay such
fees to such
primary servicer or subservicer in accordance with the terms of the
applicable
Primary Servicing Agreement or Subservicing Agreement.
"Master Servicing Fee Rate": With respect to (i) each Pooled
Mortgage
Loan (other than the Non-Trust-Serviced Mortgage Loan) and any
successor REO
Pooled Mortgage Loan with respect thereto, including the Lock Up
Storage Centers
Pooled Mortgage Loan and the JL Holdings Portfolio Pooled Mortgage
Loan, a rate
per annum equal to (a) the rate per annum specified as the
"Administrative Fee
Rate" on the Pooled Mortgage Loan Schedule, minus (b) the sum of
(x) the
Servicer Report Administrator Fee Rate and (y) the Trustee Fee
Rate; (ii) the
Non-Trust Serviced Pooled Mortgage Loan, a rate per annum equal to
two (2) basis
points (0.002)%; (iii) the Lock Up Storage Centers Non-Pooled
Subordinate Loan,
such reasonable rate as is mutually acceptable to the applicable
Master Servicer
and the Lock Up Storage Centers Non-Pooled Subordinate Noteholder;
(iv) the Park
Place Non-Pooled Subordinate Loan, a rate per annum equal to
(0.00%) basis
points (0.00%); (iv) the JL Holdings Portfolio Non-Pooled Pari
Passu Companion
Loan, a rate per annum equal to three (3) basis point (0.03%); (v)
JL Holdings
Portfolio Non-Pooled Subordinate Loan, a rate per annum equal to
three (3) basis
point (0.03%); (vi) the The Landings at Cypress Meadows Non-Pooled
Subordinate
Loan, a rate per annum equal to zero (0) basis points (0.00%);
(vii) the Aspen
Highlands Non-Pooled Subordinate Loan, a rate per annum equal to
zero (0) basis
points (0.00%); and (viii) the Ramapo Centre Non-Pooled Subordinate
Loan, a rate
per annum equal to zero (0) basis points (0.00%). The parties
acknowledge that
the Master Servicing Fee Rate for each Serviced Mortgage Loan
includes the rate
at which applicable primary and sub-servicing fees accrue;
therefore, if the
Master Servicing Fee Rate is zero, there is no primary or
subservicing fee that
may be paid on such mortgage loan.
"Material Breach": With respect to any Pooled Mortgage Loan, any
Breach
that materially and adversely affects the interests of the
Certificateholders,
or any of them, with respect to the affected Pooled Mortgage Loan,
including but
not limited to a material and adverse effect on any of the
distributions payable
with respect to any of the Certificates or on the value of such
Certificates.
-39-
"Material Document Defect": With respect to any Pooled Mortgage
Loan,
any Document Defect that materially and adversely affects the
interests of the
Certificateholders, or any of them, with respect to the affected
Pooled Mortgage
Loan, including but not limited to a material and adverse effect on
any of the
distributions payable with respect to any of the Certificates or on
the value of
such Certificates. Notwithstanding the foregoing, the absence of a
Specially
Designated Mortgage Loan Document following the date on which such
Specially
Designated Mortgage Loan Document is required to be delivered to
the Trustee as
described in Section 2.01(d) shall also constitute a Material
Document Defect.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified
by the
applicable Special Servicer pursuant to Section 3.20 in a manner
that:
(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to,
bringing
Monthly Payments current with respect to such Pooled Mortgage
Loan);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results in a release of the lien of the Mortgage on any
material
portion of the related Mortgaged Property without a corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less than
the fair
market value (as is) of the property to be released, as determined
by an
Appraisal delivered to the applicable Special Servicer (at the
expense of
the related Borrower and upon which such Special Servicer may
conclusively
rely); or
(c) in the reasonable judgment of the Special Servicer, otherwise
materially impairs the security for such Pooled Mortgage Loan or
materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case
of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum
monthly debt
service payment required to be paid on a current basis) on such
Mortgage Loan
that is actually payable by the related Borrower from time to time
under the
terms of the related Mortgage Note (as such terms may be changed or
modified in
connection with a bankruptcy or similar proceeding involving the
related
Borrower or by reason of a modification, extension, waiver or
amendment granted
or agreed to by the applicable Master Servicer or the applicable
Special
Servicer pursuant to Section 3.20 (or, in the case of a
Non-Trust-Serviced
Pooled Mortgage Loan, by the related Non-Trust Master Servicer or
the related
Non-Trust Special Servicer pursuant to the relevant Non-Trust
Servicing
Agreement)), including any Balloon Payment payable in respect of
such Mortgage
Loan on such Due Date; provided that the Monthly Payment due in
respect of any
Mortgage Loan shall not include Default Interest; and provided,
further, that
the Monthly Payment due in respect of any ARD Mortgage Loan after
its
Anticipated Repayment Date shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains
in existence,
"Moody's" shall be deemed to refer to such other nationally
recognized
statistical rating organization or other comparable Person
designated by the
Depositor, notice of which designation shall be given to the other
parties
hereto, and specific ratings of Moody's herein referenced shall be
deemed to
refer to the equivalent ratings of the party so designated.
References herein to
"applicable rating category" (other than such references to
"highest applicable
rating category") shall, in the case of Moody's, be deemed to refer
to such
applicable rating category of Moody's, without regard to any plus
or minus or
other comparable rating qualification.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of
trust, deed to
secure debt or similar document that secures the related Mortgage
Note and
creates a lien on the related Mortgaged Property.
-40-
"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either on the
face
thereof or pursuant to a separate allonge) "Pay to the order of
LaSalle
Bank National Association, as Trustee for the registered holders of
Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2005-PWR8, without recourse,
representation or
warranty" or in blank, and further showing a complete, unbroken
chain of
endorsement from the originator; or alternatively, if the original
executed
Mortgage Note has been lost, a lost note affidavit and indemnity
with a
copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, together with originals
or
copies of any and all intervening assignments thereof prior to the
assignment to the Trustee, in each case (unless the particular item
has
been delivered to but not returned from the applicable recording
office)
with evidence of recording indicated thereon; provided that if the
original
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, a
copy) of
the Mortgage cannot be delivered with evidence of recording thereon
on or
prior to the 90th day following the Closing Date because of a delay
caused
by the public recording office where such original Mortgage has
been
delivered for recordation, or because the public recording office
retains
the original or because such original Mortgage has been lost, there
shall
be delivered to the Trustee or a Custodian on its behalf a true and
correct
copy of such Mortgage, together with (A) in the case of a delay
caused by
the public recording office, an Officer's Certificate of the
applicable
Pooled Mortgage Loan Seller or a statement from the title agent to
the
effect that such original Mortgage has been sent to the appropriate
public
recording official for recordation or (B) in the case of an
original
Mortgage that has been lost after recordation or retained by the
appropriate public recording office, a certification by the
appropriate
county recording office where such Mortgage is recorded that such
copy is a
true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if
any such item is a document separate from the Mortgage) and, if
applicable,
the originals or copies of any intervening assignments thereof
showing a
complete chain of assignment from the originator of the Mortgage
Loan to
the most recent assignee of record thereof prior to the Trustee
(which, in
the case of each related Mortgage that has been recorded in the
name of
MERS or its designee (each such Mortgage a "Designated MERS
Mortgage"), may
be MERS), if any, in each case (unless the particular item has not
been
returned from the applicable recording office) with evidence of
recording
thereon;
(iv) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan,
an original executed assignment, in recordable form (except for
recording
information not yet available if the instrument being assigned has
not been
returned from the applicable recording office), of (A) the Mortgage
and (B)
any related Assignment of Leases (if such item is a document
separate from
the Mortgage), in favor of "LaSalle Bank National Association, in
its
capacity as Trustee for the registered holders of Bear Stearns
Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates,
Series 2005-PWR8" or, in the case of any Pooled Mortgage Loan
included in a
Serviced Mortgage Loan Group, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders
of Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-PWR8, and in its capacity as
lead
lender on behalf of [`the Lock Up Storage Centers Non-Pooled
Subordinate
Noteholder'][`the Non-Pooled Mortgage Loan Noteholder(s) secured by
the
[insert name of mortgaged property (e.g., `JL Holding Portfolio
Mortgaged
Property']] (or, in each case, a copy thereof, certified to be the
copy of
such assignment submitted for recording); provided, however, that,
if the
related Mortgage is a Designated MERS Mortgage, no assignment of
Mortgage
or any related Assignment of Leases in favor of the Trustee will be
required to be prepared or delivered and instead, the related
Pooled
Mortgage Loan Seller shall take all actions as are necessary to
cause the
Trustee to be shown as, and the Trustee shall take all actions
necessary to
confirm (and shall place into the Mortgage File such confirmation
in
writing from MERS) that it is shown as, the sole owner of the
related
Mortgage and any related Assignment of Leases on the records of
MERS for
purposes of the system of recording transfers of beneficial
ownership of
mortgages maintained by MERS;
-41-
(v) an original or a copy of any related Security Agreement (if
such
item is a document separate from the Mortgage) and, if applicable,
the
originals or copies of any intervening assignments thereof showing
a
complete chain of assignment from the originator of the Mortgage
Loan to
the most recent assignee of record thereof prior to the Trustee
(which, in
the case of a Designated MERS Mortgage, may be MERS), if any;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan,
an original assignment of any related Security Agreement (if such
item is a
document separate from the Mortgage) executed by the most recent
assignee
of record thereof prior to the Trustee or, if none, by the
originator, in
favor of "LaSalle Bank National Association, in its capacity as
Trustee for
the registered holders of Bear Stearns Commercial Mortgage
Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-PWR8"
(or, in
the case of the Lock Up Storage Centers Pooled Mortgage Loan, in
favor of
"LaSalle Bank National Association, in its capacity as Trustee for
the
registered holders of Bear Stearns Commercial Mortgage Securities
Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-PWR8,
and in its
capacity as lead lender on behalf of the Lock Up Storage Centers
Non-Pooled
Subordinate Noteholder" or, in the case of any Pooled Mortgage Loan
included in a Serviced Mortgage Loan Group, in favor of "LaSalle
Bank
National Association, in its capacity as Trustee for the registered
holders
of Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage
Pass-Through Certificates, Series 2005-PWR8, and in its capacity as
lead
lender on behalf of [`the Lock Up Storage Centers Non-Pooled
Subordinate
Noteholder'][`the Non-Pooled Mortgage Loan Noteholder(s) secured by
the
[insert name of mortgaged property (e.g., `JL Holding Portfolio
Mortgaged
Property']], which assignment may (in any case) be included as part
of the
corresponding assignment of Mortgage referred to in clause (iv)
above;
provided, however, that, if the related Mortgage is a Designated
MERS
Mortgage, no assignment of a related Security Agreement in favor of
the
Trustee
to be prepared or delivered and instead, the
related Pooled Mortgage Loan Seller shall take all actions as are
necessary
to cause the Trustee to be shown as, and the Trustee shall take all
actions
necessary to confirm (and shall place into the Mortgage File such
confirmation in writing from MERS) that it is shown as, the sole
owner of
the related Mortgage on the records of MERS for purposes of the
system of
recording transfers of beneficial ownership of mortgages maintained
by
MERS;
(vii) originals or copies of any assumption, modification, written
assurance, consolidation, extension and substitution agreements, if
any,
with evidence of recording thereon if the applicable document or
instrument
being modified or assumed, was recorded (unless the particular item
has not
been returned from the applicable recording office), in those
instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related
security document have been materially modified or the Mortgage
Loan has
been assumed;
(viii) the original or a copy of the policy or certificate of
lender's
title insurance issued in connection with such Mortgage Loan (or,
if the
policy has not yet been issued, an original or copy of a written
commitment
"marked-up" at the closing of such Mortgage Loan, interim binder or
the pro
forma title insurance policy, in each case evidencing a binding
commitment
to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any prior
effective
UCC Financing Statements in favor of the originator of such
Mortgage Loan
or in favor of any assignee prior to the Trustee (but only to the
extent
the related Pooled Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and (B) except in
the case
of a Non-Trust-Serviced Pooled Mortgage Loan, an original
assignment
thereof, in form suitable for filing, in favor of "LaSalle Bank
National
Association, in its capacity as Trustee for the registered holders
of Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2005-PWR8" or, in the case of any Pooled
Mortgage Loan included in a Serviced Mortgage Loan Group, in favor
of
"LaSalle Bank National Association, in its capacity as Trustee for
the
registered holders of Bear Stearns Commercial Mortgage Securities
Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-PWR8,
and in its
capacity as lead lender on behalf of [`the Lock Up Storage Centers
Non-Pooled Subordinate Noteholder'][`the Non-Pooled Mortgage Loan
Noteholder(s) secured by the [insert name of mortgaged property
(e.g., `JL
Holding Portfolio Mortgaged Property']]; provided, however, that if
the
related Mortgage is a Designated MERS Mortgage, no UCC Financing
Statement
in favor of the Trustee will be required
-42-
to be prepared or delivered and instead, the related Pooled
Mortgage Loan
Seller shall take all actions as are necessary to cause the Trustee
to be
shown as, and the Trustee shall take all actions necessary to
confirm (and
shall place into the Mortgage File such confirmation in writing
from MERS)
that it is shown as, for purposes of the system of recording
transfers of
beneficial ownership of mortgages maintained by MERS, the sole
owner of any
related UCC Financing Statements on record with the applicable
filing
office;
(x) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the
original
or a copy of the Ground Lease relating to such Mortgage Loan,
together with
a notice to the related ground lessor of the transfer of the
Mortgage Loan
to the Trust or the Trustee on its behalf;
(xi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan,
any original documents not otherwise described in the preceding
clauses of
this definition relating to, evidencing or constituting Additional
Collateral (except that in the case of any such documents in the
form of a
Letter of Credit, either (x) the "Mortgage File" shall contain the
original
of such Letter of Credit or (y) the "Mortgage File" shall contain
copies of
such Letter of Credit and the original if any shall be delivered to
the
applicable Master Servicer (or a Primary Servicer on its behalf))
and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xii) an original or a copy of the loan agreement, if any, related
to
such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment
under
such Mortgage Loan, if any;
(xiv) an original or a copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity from the
related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement or
similar
agreement relating to such Mortgage Loan (including, in the case of
each
Pooled Mortgage Loan that is included in a Mortgage Loan Group, the
related
Mortgage Loan Group Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with
respect
to the related Mortgaged Property if the manager thereunder is not
an
Affiliate of the Borrower and the initial Stated Principal Balance
of such
Mortgage Loan is greater than $20,000,000;
(xviii) an original or a copy of any master operating lease with
respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental Insurance
Policy;
(xx) if the related Mortgaged Property is a hospitality property
that
is subject to a franchise or similar arrangement, (a) an original
or a copy
of any franchise or similar agreement and (b) either (i) a signed
copy of
the comfort letter delivered by the franchisor or similar person
for the
benefit of the holder of the Mortgage Loan in connection with the
Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage
Loan,
together with such instrument(s) of notice or transfer (if any) as
are
necessary to transfer or assign to the Trust or the Trustee the
benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered
by the
franchisor or similar person for the benefit of the holder of the
Mortgage
Loan in connection with such origination or acquisition of the
Mortgage
Loan, together with a signed copy or a fax copy of a new comfort
letter (in
substantially the same form and substance as the comfort letter
delivered
in connection with such origination or
-43-
acquisition) by the franchisor or similar person for the benefit of
the
Trust or the Trustee (and, if a fax copy of a new comfort letter is
delivered, then the original copy shall be included in the
"Mortgage File"
promptly following receipt thereof by the related Pooled Mortgage
Loan
Seller); and
(xxi) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection with the
origination
of such Mortgage Loan (which checklist may be in a reasonable form
selected
by the related Pooled Mortgage Loan Seller);
provided, however, that (A) whenever the term "Mortgage File" is
used to refer
to documents actually received by the Trustee or by a Custodian on
its behalf,
such term shall not be deemed to include such documents required to
be included
therein unless they are actually so received, and with respect to
any receipt or
certification by the Trustee or a Custodian on its behalf for
documents
described in clauses (vi), (vii) and (ix) through (xx) of this
definition, shall
be deemed to include such documents only to the extent the Trustee
or a
Custodian on its behalf has actual knowledge of their existence
(and the Trustee
or such Custodian, as the case may be, shall be deemed to have
actual knowledge
of the existence of any document listed on the related Mortgage
File Checklist);
(B) the "Mortgage File" for each Pooled Mortgage Loan that is
included in a
Serviced Mortgage Loan Group shall include a photocopy of the
executed Mortgage
Note for each Serviced Non-Pooled Mortgage Loan that is included in
such
Serviced Mortgage Loan Group; (C) all the documents in the
"Mortgage File" for
each Pooled Mortgage Loan included in a Serviced Mortgage Loan
Group (other than
the Mortgage Note for such Pooled Mortgage Loan and any allonges
thereto) shall
be deemed to be contained in the "Mortgage File" for each Serviced
Non-Pooled
Mortgage Loan that is included in such Serviced Mortgage Loan Group
(without
additional copies) and references herein to the "Mortgage File" for
each such
Serviced Non-Pooled Mortgage Loan shall be construed in accordance
with this
statement; and (D) the "Mortgage File" for a Non-Trust-Serviced
Pooled Mortgage
Loan shall also include a copy of the related Non-Trust Servicing
Agreement in
effect as of the Closing Date and photocopies of all transfer
documents
comparable to those documents described in clauses (iv), (vi) and
(ix)(B) of
this definition (originals of which were delivered to the
applicable trustee
under the related Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the
definition
of "Mortgage File".
"Mortgage Loan": Any Pooled Mortgage Loan or Non-Pooled Mortgage
Loan.
As used herein, the term "Mortgage Loan" includes the related
Mortgage Loan
Documents.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may
require, in
the related Mortgage File and Servicing File.
"Mortgage Loan Group": Each of the Lock Up Storage Centers Loan
Group,
the Park Place Loan Group, the JL Holdings Portfolio Loan Group,
the The
Landings at Cypress Meadows Loan Group, the Aspen Highlands Loan
Group, the
Marquis Apartments Loan Group and the Ramapo Centre Loan Group, as
applicable.
"Mortgage Loan Group Intercreditor Agreement": Each of the Lock Up
Storage Centers Intercreditor Agreement, the Park Place
Intercreditor Agreement,
the JL Holdings Portfolio Intercreditor Agreement, the The Landings
at Cypress
Meadows Intercreditor Agreement, the Aspen Highlands Intercreditor
Agreement,
the Marquis Apartments Intercreditor Agreement and the Ramapo
Centre
Intercreditor Agreement, as applicable.
"Mortgage Note": The original executed promissory note evidencing
the
indebtedness of a Borrower under a Mortgage Loan, together with any
rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool": All of the Pooled Mortgage Loans and any successor
REO
Pooled Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate": With respect to each Mortgage Loan (and any
successor
REO Mortgage Loan with respect thereto), the related annualized
rate at which
interest is scheduled (in the absence of a default) to accrue on
such
-44-
Mortgage Loan from time to time in accordance with the related
Mortgage Note and
applicable law, as such rate may be modified in accordance with
Section 3.20
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by
the relevant
Non-Trust Master Servicer or the relevant Non-Trust Special
Servicer in
accordance with the applicable Non-Trust Servicing Agreement) or in
connection
with a bankruptcy, insolvency or similar proceeding involving the
related
Borrower. In the case of each ARD Mortgage Loan, the related
Mortgage Rate shall
increase in accordance with the related Mortgage Note if the
particular loan is
not paid in full by its Anticipated Repayment Date.
"Mortgaged Property": Individually and collectively, as the context
may
require, each real property (together with all improvements and
fixtures
thereon) subject to the lien of a Mortgage and constituting
collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage
Loan, if and
when the context may require, "Mortgaged Property" shall mean,
collectively, all
the mortgaged real properties (together with all improvements and
fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan,
together
with any third parties through which such holder takes actions with
respect to
such Mortgage Loan.
"Nationwide": Nationwide Life Insurance Company, or its successor
in
interest.
"Nationwide Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original Nationwide Pooled Mortgage Loan or a Replacement
Pooled
Mortgage Loan that was delivered under the Nationwide Pooled
Mortgage Loan
Purchase Agreement in substitution for an Original Nationwide
Pooled Mortgage
Loan.
"Nationwide Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of June 8, 2005,
between
Nationwide as seller and the Depositor as purchaser.
"Nationwide Primary Servicing Agreement": That certain primary
servicing agreement dated as of June 1, 2005, between WFB, as the
applicable
Master Servicer for the Nationwide Pooled Mortgage Loans, and
Nationwide, as
primary servicer, relating to the primary servicing and
administration of the
Nationwide Pooled Mortgage Loans.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments (and prepayment resulting from the receipt of
Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans
during the
related Collection Period, exceeds (b) the aggregate amount of the
Compensating
Interest Payments remitted by the Master Servicers pursuant to
Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution
Date.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the
total fixed
and variable operating expenses, capital expenditures such as
reserves, tenant
improvements and leasing commissions, incurred in respect of such
Mortgaged
Property (subject to adjustments for, among other things, (i)
non-cash items
such as depreciation and amortization, and (ii) debt service on
loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to
in clause
third of Section 3.29(a), which are payable to the applicable
Master Servicer as
Additional Master Servicing Compensation or the applicable Special
Servicer as
Additional Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for
any Collection Period, the amount, if any, by which the aggregate
of all
interest and other income realized during such Collection Period on
funds held
in such Investment Account (exclusive, in the case of a Servicing
Account, a
Reserve Account or the Defeasance Deposit Account, of any portion
of such
interest or other income payable to a Borrower in accordance with
the related
Mortgage Loan Documents and applicable law), exceeds the aggregate
of all losses
and costs, if any, incurred during such
-45-
Collection Period in connection with the investment of such funds
in accordance
with Section 3.06 (exclusive, in the case of a Servicing Account, a
Reserve
Account or the Defeasance Deposit Account, of any portion of such
losses that
were incurred in connection with investments made for the benefit
of a
Borrower).
"Net Investment Loss": With respect to any Investment Account for
any
Collection Period, the amount by which the aggregate of all losses,
if any,
incurred during such Collection Period in connection with the
investment of
funds held in such Investment Account for the benefit of a Master
Servicer, a
Special Servicer or the Certificate Administrator, as applicable,
in accordance
with Section 3.06 (exclusive, in the case of a Servicing Account, a
Reserve
Account or the Defeasance Deposit Account, of any portion of such
losses that
were incurred in connection with investments made for the benefit
of a Borrower,
and other than losses of what would otherwise have constituted
interest or other
income earned on such funds), exceeds the aggregate of all interest
and other
income realized during such Collection Period in connection with
the investment
of such funds for the benefit of such Master Servicer, such Special
Servicer or
the Certificate Administrator, as applicable, in accordance with
Section 3.06;
provided that, in the case of any Investment Account and any
particular
investment of funds in such Investment Account, Net Investment Loss
shall not
include any loss with respect to such investment which is incurred
solely as a
result of the insolvency of the federal or state chartered
depositary
institution or trust company at which such Investment Account is
maintained, so
long as such depositary institution or trust company (a) satisfied
the
qualifications set forth in the definition of "Eligible Account"
both at the
time such investment was made and as of a date not more than 30
days prior to
the date of such loss and (b) is not the same Person as the Person
that made the
relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds Received by the Trust with respect to any particular
Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all
Liquidation
Expenses incurred with respect thereto and all related Servicing
Advances
reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan
(or
any successor REO Pooled Mortgage Loan with respect thereto), the
rate per annum
equal to (a) the related Mortgage Rate minus (b) the related
Administrative Fee
Rate and, in the case of an ARD Mortgage Loan after its Anticipated
Repayment
Date, the related Post-ARD Additional Interest Rate, and (ii) the
Serviced
Non-Pooled Mortgage Loans (or any successor REO Mortgage Loan with
respect
thereto), the rate per annum equal to (a) the related Mortgage Rate
minus (b)
the related Master Servicing Fee Rate.
"New Lease": Any lease of an Administered REO Property entered into
at
the direction of the Special Servicer, including any lease renewed,
modified or
extended on behalf of the Trustee if the Special Servicer has the
power to
renegotiate the terms of such lease.
"Non-Pooled Mortgage Loan": Any mortgage loans (if any), other than
a
Pooled Mortgage Loan, that is part of a split loan structure that
includes a
Pooled Mortgage Loan as identified in the Preliminary Statement
hereto (whether
or not such split loan structure is principally serviced and
administered under
this Agreement). Only the Lock Up Storage Centers Non-Pooled
Subordinate Loan,
the Park Place Non-Pooled Subordinate Loan, the JL Holdings
Portfolio Non-Pooled
Pari Passu Companion Loan, the JL Holdings Portfolio Non-Pooled
Subordinate
Loan, the The Landings at Cypress Meadows Non-Pooled Subordinate
Loan, the Aspen
Highlands Non-Pooled Subordinate Loan, the Marquis Apartments
Non-Pooled Pari
Passu Companion Loan and the Ramapo Centre Non-Pooled Subordinate
Loan
constitute Non-Pooled Mortgage Loans under this Agreement.
"Non-Pooled Noteholder": The holder of any Non-Pooled Mortgage
Loan.
"Non-Pooled Pari Passu Companion Loan": Any of the Marquis
Apartments
Non-Pooled Pari Passu Companion Loan and the JL Holdings Portfolio
Non-Pooled
Pari Passu Companion Loan, as applicable.
"Non-Pooled Pari Passu Companion Loan Securities": For so long as
any
Non-Pooled Pari Passu Companion Loan is serviced and administered
under this
Agreement, any class of securities backed by such Non-Pooled Pari
Passu
Companion Loan.
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"Non-Pooled Subordinate Loan": Any of the Lock Up Storage Centers
Non-Pooled Subordinate Loan, the Park Place Non-Pooled Subordinate
Loan, the JL
Holdings Portfolio Non-Pooled Subordinate Loan, the The Landings at
Cypress
Gardens Non-Pooled Subordinate Loan, the Aspen Highlands Non-Pooled
Subordinate
Loan and the Ramapo Centre Non-Pooled Subordinate Loan, as
applicable.
"Non-Pooled Subordinate Noteholder: Any of the Lock Up Storage
Centers
Non-Pooled Subordinate Noteholder, the Park Place Non-Pooled
Subordinate
Noteholder, the JL Holdings Portfolio Non-Pooled Subordinate
Noteholder, the The
Landings at Cypress Gardens Non-Pooled Subordinate Noteholder, the
Aspen
Highlands Non-Pooled Subordinate Noteholder and the Ramapo Centre
Non-Pooled
Subordinate Noteholder, as applicable.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance
(including any
Unliquidated Advance that constitutes a Nonrecoverable P&I
Advance) or
Nonrecoverable Servicing Advance (including any Unliquidated
Advance that
constitutes a Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate
and supporting documentation contemplated by Section 4.03(c), any
P&I Advance,
or any Unliquidated Advance in respect of a prior P&I Advance,
previously made
and any P&I Advance contemplated to be made in respect of any
Pooled Mortgage
Loan or related successor REO Pooled Mortgage Loan that, as
determined by the
applicable Master Servicer or, if applicable, by the Trustee or the
Fiscal
Agent, or by the applicable Special Servicer pursuant to the second
paragraph of
Section 4.03(c), in its reasonable, good faith judgment, will not
be ultimately
recoverable, or in fact was not ultimately recovered, from late
payments,
Default Charges, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds
or any other recovery on or in respect of such Mortgage Loan or the
related REO
Property (without giving effect to potential recoveries on
deficiency judgments
or recoveries from guarantors). In the case of a
Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the
cross-collateralization of the related Cross-Collateralized Group.
In connection
with each Pooled Mortgage Loan that is part of a Mortgage Loan
Group that
includes a Non-Pooled Pari Passu Companion Loan, if the applicable
Master
Servicer receives a written notice described in clause (i) of the
third
paragraph of Section 4.03(c) to the effect that the master servicer
or other
comparable party responsible for debt service advances with respect
to such
Non-Pooled Pari Passu Companion Loan under the related pooling and
servicing
agreement (pursuant to which securities were issued that are rated
by at least
one national statistical rating organization) has determined,
pursuant to such
agreement, that any debt service advance made or to be made with
respect to such
Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage
loan with
respect thereto) would not ultimately be recoverable out of
collections on such
Mortgage Loan (or such REO mortgage loan), then any prospective
P&I Advance on
the related Pooled Mortgage Loan (or any successor REO Mortgage
Loan) under this
Agreement shall be deemed to constitute a Nonrecoverable Advance,
notwithstanding the absence of any determination (as otherwise
contemplated
above and by Section 4.03(c)) by any party hereto that any prior
P&I Advance or
any prospective P&I Advance on such Pooled Mortgage Loan
constitutes a
Nonrecoverable Advance, and such Master Servicer (or the Trustee or
the Fiscal
Agent, if applicable) shall not make any such prospective P&I
Advance unless
such Master Servicer (or the Trustee or the Fiscal Agent, if
applicable) has
consulted with such other master servicer or comparable party and
they both
agree that circumstances with respect to such Mortgage Loan have
changed such
that a proposed future P&I Advance would not be a
Nonrecoverable Advance.
Notwithstanding the preceding sentence, each party to this
Agreement with the
discretion to determine that a P&I Advance constitutes a
Nonrecoverable Advance
(as otherwise contemplated above and by Section 4.03(c)) shall
continue to have
such discretion.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section
3.11(h), any
Servicing Advance, or any Unliquidated Advance in respect of a
prior Servicing
Advance, previously made, and any Servicing Advance proposed to be
made, in
respect of any Mortgage Loan or REO Property that, as determined by
the
applicable Master Servicer or, if applicable, the Trustee or the
Fiscal Agent,
in its reasonable, good faith judgment, will not be ultimately
recoverable, or
in fact was not ultimately recovered, from late payments, Default
Charges,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
any other
recovery on or in respect of such Mortgage Loan or such REO
Property (without
giving effect to potential recoveries on deficiency judgments or
recoveries from
guarantors). In the case of a Cross-Collateralized Mortgage Loan,
such
recoverability determination shall take into account the
cross-collateralization
of the related Cross-Collateralized Group.
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"Non-Registered Certificate": Any Certificate that has not been
subject
to registration under the Securities Act. As of the Closing Date,
the Class X-1,
Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N,
Class P, Class Q, Class R and Class V Certificates are
Non-Registered
Certificates.
"Non-Trust Master Servicer": With respect to a Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the related
Non-Trust Servicing
Agreement.
"Non-Trust-Serviced Mortgage Loan Group": Any Mortgage Loan Group
that
is primarily serviced and administered under the pooling and
servicing agreement
for another commercial mortgage securitization trust. Only the
Marquis
Apartments Loan Group constitutes a Non-Trust-Serviced Mortgage
Loan Group.
"Non-Trust-Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan
that is part of a Non-Trust-Serviced Mortgage Loan Group. Only the
Marquis
Apartments Pooled Mortgage Loan constitutes a Non-Trust-Serviced
Pooled Mortgage
Loan.
"Non-Trust Servicing Agreement": With respect to the Marquis
Apartments
Pooled Mortgage Loan and the Marquis Apartments Loan Group of which
it is a
part, the separate servicing agreement pursuant to which the
Marquis Apartments
Pooled Mortgage Loan and the related Non-Pooled Pari Passu
Companion Loan are
(or, if applicable, any related REO Property is) to be principally
serviced and
administered, which agreement is the Series 2005-PWR7 PSA.
"Non-Trust Special Servicer": With respect to a Non-Trust-Serviced
Pooled Mortgage Loan, the applicable special servicer under the
related
Non-Trust Servicing Agreement.
"Non-United States Tax Person": Any Person other than a United
States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer of
a Master Servicer or Special Servicer or a Responsible Officer of
the
Certificate Administrator, the Trustee or the Fiscal Agent, as the
case may be,
or, with respect to any other Person, a certificate signed by any
of the
Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice
President, Director or Managing Director, an Assistant Vice
President or any
other authorized officer (however denominated) or another officer
customarily
performing functions similar to those performed by any of the above
designated
officers or, with respect to a particular matter, any other officer
to whom such
matter is referred because of such officer's knowledge of and
familiarity with
the particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in
the
case of any such opinion relating to the taxation of the Trust Fund
or any
portion thereof, the status of any REMIC Pool as a REMIC, the
status of any
Grantor Trust Pool as a Grantor Trust for taxation purposes or a
resignation
under Section 6.04, be Independent counsel, but who otherwise may
be salaried
counsel for the Depositor, the Certificate Administrator, the
Trustee, the Tax
Administrator, the Fiscal Agent, either Master Servicer or either
Special
Servicer), which written opinion is acceptable and delivered to the
addressee(s)
thereof and which opinion of counsel, except as provided herein,
shall not be at
the expense of the Certificate Administrator, the Trustee or the
Trust Fund.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original BSCMI Pooled Mortgage Loans": The mortgage loans
initially
identified on the schedule attached hereto as Schedule I-B.
"Original Nationwide Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule
I-E.
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"Original PCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-D.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A,
Schedule I-B,
Schedule I-C, Schedule I-D and Schedule I-E.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of any Certificate, any ownership
or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance": With respect to any Pooled Mortgage Loan or REO
Pooled
Mortgage Loan (including a Non-Trust-Serviced Pooled Mortgage Loan
or any
successor REO Pooled Mortgage Loan thereto), any advance made by
the applicable
Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day preceding each
Distribution Date.
"PAR": Prudential Asset Resources, Inc. or its successor in
interest.
"Park Place Controlling Party": The Park Place Non-Pooled
Subordinate
Noteholder at any time when a PCF Change of Control Event does not
exist with
respect to the Park Place Loan Group or the Controlling Class
Representative at
any time when a PCF Change of Control Event exists with respect to
the Park
Place Loan Group.
"Park Place Intercreditor Agreement": That certain Co-Lender
Agreement,
dated as of December 20, 2004, by and between Principal Commercial
Funding, LLC,
as initial note A lender, and Principal Life Insurance Company, as
initial note
B lender.
"Park Place Loan Group": Collectively, the Park Place Pooled
Mortgage
Loan and the Park Place Non-Pooled Subordinate Loan (including any
successor REO
Mortgage Loans with respect to such loans).
"Park Place Mortgaged Property": The Mortgaged Property identified
on
the Pooled Mortgage Loan Schedule as "Park Place".
"Park Place Non-Pooled Subordinate Loan": The mortgage loan, with
an
original principal balance in the amount of $9,100,000 that is
secured by the
same Mortgage encumbering the Park Place Mortgaged Property as the
Park Place
Pooled Mortgage Loan and is subordinate in right of payment to the
Park Place
Pooled Mortgage Loan and is held as of the Closing Date by
Principal Life
Insurance Company. The Park Place Non-Pooled Subordinate Loan is
not a "Pooled
Mortgage Loan" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust
Pool.
"Park Place Non-Pooled Subordinate Noteholder": The holder or
holders
of the related Mortgage Note evidencing the Park Place Non-Pooled
Subordinate
Loan.
"Park Place Pooled Mortgage Loan": The Pooled Mortgage Loan in the
principal amount of $50,900,000 that is secured by the Mortgage
encumbering the
Park Place Mortgaged Property.
-49-
"Pass-Through Rate": The per annum rate at which interest accrues
in
respect of any Class of REMIC III Regular Interests during any
Interest Accrual
Period, as set forth in or otherwise calculated in accordance with
Section
2.17(f) or the per annum rate at which interest accrues in respect
of the Class
A-4FL Certificates during any Interest Accrual Period, as set forth
in or
otherwise calculated in accordance with Section 2.18(c)).
"Past Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable,
in respect
of any particular Pooled Mortgage Loan, the status attributable to
that Mortgage
Loan by reason of, if applicable, the fact that such Monthly
Payment or Assumed
Monthly Payment remains unpaid past its Due Date and past any
applicable grace
period for such Monthly Payment or Assumed Monthly Payment.
"PCF": Principal Commercial Funding, LLC, or its successor in
interest.
"PCF Change of Control Event: With respect to any Serviced Mortgage
Loan Group that includes a PCF Pooled Mortgage Loan and a Serviced
Non-Pooled
Subordinate Loan, the event that occurs if, as of any date of
determination, (i)
the then outstanding principal balance of such Serviced Non-Pooled
Subordinate
Loan minus (ii) any Appraisal Reduction Amount allocable to such
Serviced
Non-Pooled Subordinate Loan, together with any related Realized
Losses allocable
to such Non-Pooled Subordinate Loan and Additional Trust Fund
Expenses allocable
to such Non-Pooled Subordinate Loan is less than 25% of the initial
principal
balance of such Non-Pooled Subordinate Loan, less any payments of
principal
(whether as scheduled amortization, prepayments or otherwise)
allocated to and
received on such Serviced Non-Pooled Subordinate Loan.
"PCF Mortgage Loan Group": Any one or more of the Park Place Loan
Group, the The Landings at Cypress Meadows Loan Group, the Aspen
Highlands Loan
Group or the Ramapo Centre Loan Group.
"PCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an
Original PCF Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was
delivered under the PCF Pooled Mortgage Loan Purchase Agreement in
substitution
for an Original PCF Pooled Mortgage Loan.
"PCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2005, between
PCF as seller
and the Depositor as purchaser.
"PCF Primary Servicing Agreement": That certain primary servicing
agreement dated as of June 1, 2005, between WFB, as the applicable
Master
Servicer for the PCF Pooled Mortgage Loans, and Principal Global
Investors, LLC,
as primary servicer, relating to the primary servicing and
administration of the
PCF Pooled Mortgage Loans.
"Percentage Interest": With respect to (a) any Interest Only
Certificate or Principal Balance Certificate, the portion of the
relevant Class
evidenced by such Certificate, expressed as a percentage, the
numerator of which
is the Certificate Principal Balance or Certificate Notional
Amount, as the case
may be, of such Certificate as of the Closing Date, as specified on
the face
thereof, and the denominator of which is the initial Class
Principal Balance or
initial Class Notional Amount, as the case may be, of the relevant
Class as of
the Closing Date; and (b) any Class R or Class V Certificate, the
percentage
interest in distributions to be made with respect to the relevant
Class, as
specified on the face of such Certificate.
"Performance Certification": As defined in Section 8.15(b).
"Performing Party": As defined in Section 8.15(b).
"Performing Serviced Mortgage Loan": Any Serviced Mortgage Loan
that is
not a Specially Serviced Mortgage Loan.
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"Permitted Investments": Any one or more of the following
obligations
or securities:
(i)
direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii)
repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of
itself, result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and also
from each applicable Rating Agency that the use of such account
would not, in and of itself, result in an Adverse Rating Event
with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made with
funds that relate solely to a Serviced Non-Pooled Mortgage Loan
and do not relate to one or more Pooled Mortgage Loans, each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency
as confirmed in writing to the Trustee by such Rating Agency), as
applicable;
(iii) federal funds, unsecured uncertificated certificates of
deposit,
time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any
state thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of
itself, result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and also
from each applicable Rating Agency that the use of such account
would not, in and of itself, result in an Adverse Rating Event
with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made with
funds that relate solely to a Serviced Non-Pooled Mortgage Loan
and do not relate to one or more Pooled Mortgage Loans, each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any class of such Non-Pooled Pari Passu
-51-
Companion Loan Securities rated by such applicable Rating Agency
as confirmed in writing to the Trustee by such Rating Agency), as
applicable;
(iv) commercial paper of any corporation incorporated under the
laws
of the United States or any state thereof (or of any corporation
not so incorporated, provided that the commercial paper is United
States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in
the highest short-term debt rating category of: (x) in the case
of an investment being made with funds that do not relate in
whole or in part to any Serviced Non-Pooled Mortgage Loan, each
Rating Agency for the Rated Certificates (or, in the case of any
such Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, as confirmed in writing
to the Trustee by such Rating Agency), (y) in the case of an
investment being made with funds that relate in whole or in part
to any Serviced Non-Pooled Mortgage Loan and also relate to one
or more Pooled Mortgage Loans, each Rating Agency for the Rated
Certificates and each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (as evidenced by
a written confirmation to the Trustee from each Rating Agency
that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also from each
applicable Rating Agency that the use of such account would not,
in and of itself, result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made with
funds that relate solely to a Serviced Non-Pooled Mortgage Loan
and do not relate to one or more Pooled Mortgage Loans, each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency
as confirmed in writing to the Trustee by such Rating Agency), as
applicable;
(v)
units of money market funds (including those managed or advised
by the Certificate Administrator or its Affiliates) which
maintain a constant net asset value, provided that such units of
money market funds are rated in the highest applicable rating
category of: (x) in the case of an investment being made with
funds that do not relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Trustee by such Rating
Agency), (y) in the case of an investment being made with funds
that relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan and also relate to one or more Pooled Mortgage
Loans, each Rating Agency for the Rated Certificates and each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (as evidenced by a written confirmation
to the Trustee from each Rating Agency that the use of such
account would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates rated by
such Rating Agency and also from each applicable Rating Agency
that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any class of such
Non-Pooled Pari Passu Companion Loan Securities rated by such
applicable Rating Agency), as applicable, or (z) in the case of
an investment being made with funds that relate solely to a
Serviced Non-Pooled Mortgage Loan and do not relate to one or
more Pooled Mortgage Loans, each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (or, in
the case of any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any class of
such Non-Pooled Pari Passu Companion Loan Securities rated by
such applicable Rating Agency as confirmed in writing to
-52-
the Trustee by such Rating Agency), as applicable; or
(vi) any other obligation or security that is acceptable to: (x) in
the case of an investment being made with funds that do not
relate in whole or in part to any Serviced Non-Pooled Mortgage
Loan, each Rating Agency for the Rated Certificates (or, in the
case of any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case of
an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that the use of such account would not, in and of
itself, result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and also
from each applicable Rating Agency that the use of such account
would not, in and of itself, result in an Adverse Rating Event
with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as
applicable, or (z) in the case of an investment being made with
funds that relate solely to a Serviced Non-Pooled Mortgage Loan
and do not relate to one or more Pooled Mortgage Loans, each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency
as confirmed in writing to the Trustee by such Rating Agency), as
applicable;
provided that each investment described hereunder shall not (A)
evidence either
the right to receive (1) only interest with respect to such
investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations, (B) be purchased at a price greater than
par if such
investment may be prepaid or called at a price less than its
purchase price
prior to stated maturity, (C) be sold prior to stated maturity if
such sale
would result in a loss of principal on the instrument or a tax on
"prohibited
transactions" under Section 860F of the Code or (D) have an "r"
highlighter or
other comparable qualifier attached to its rating; and provided,
further, that
each investment described hereunder must have (X) a predetermined
fixed amount
of principal due at maturity (that cannot vary or change), (Y) an
original
maturity of not more than 365 days and a remaining maturity of not
more than 30
days and (Z) except in the case of a Permitted Investment described
in clause
(v) of this definition, a fixed interest rate or an interest rate
that is tied
to a single interest rate index plus a single fixed spread and
moves
proportionately with that index; and provided, further, that each
investment
described hereunder must be a "cash flow investment" (within the
meaning of the
REMIC Provisions).
"Permitted Transferee": Any Transferee of a Class R Certificate
other
than (a) a Disqualified Organization, (b) a Disqualified Non-United
States Tax
Person, (c) a Disqualified Partnership, (d) a foreign permanent
establishment or
fixed base (within the meaning of any applicable income tax treaty
between the
United States and any foreign jurisdiction) of a United States Tax
Person or (e)
any other Person as to whom, as determined by the Tax Administrator
(based upon
an Opinion of Counsel, obtained at the request of the Tax
Administrator at the
expense of such Person or the Person seeking to Transfer a Class R
Certificate,
supporting such determination), the Transfer of a Class R
Certificate may cause
any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as
described
in, and meeting the criteria of, the American Society for Testing
and Materials,
plus a radon and asbestos inspection.
"Plan": Any of those employee benefit plans and other retirement
arrangements, including individual retirement accounts and
annuities, and Keogh
plans and collective investment funds and separate accounts in
which such
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plans, accounts or arrangements are invested, including insurance
company
general accounts, that are subject to ERISA or Section 4975 of the
Code.
"PMCF": Prudential Mortgage Capital Funding, LLC, or its successor
in
interest.
"PMCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an
Original PMCF Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that
was delivered under the PMCF Pooled Mortgage Loan Purchase
Agreement in
substitution for an Original PMCF Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2005, between
PMCF as
seller and the Depositor as purchaser.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans
and
Replacement Pooled Mortgage Loans that are from time to time held
in the Trust
Fund, including any such mortgage loan that has been wholly or
partially
defeased. As used herein, the term "Pooled Mortgage Loan" includes
the related
Mortgage Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan
Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement, the
PCF Pooled
Mortgage Loan Purchase Agreement and the Nationwide Pooled Mortgage
Loan
Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the five schedules
of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule
I-B, Schedule
I-C, Schedule I-D and Schedule I-E, respectively, as any such
schedule may be
amended from time to time in accordance with this Agreement. Such
schedules
shall set forth the following information with respect to each
Pooled Mortgage
Loan:
(i)
the loan number assigned to the Pooled Mortgage Loan on the
books and records of the related Pooled Mortgage Loan Seller as
of the Closing Date and the identification number assigned to
such Pooled Mortgage Loan in the Prospectus Supplement;
(ii)
the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii)
the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv)
the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Pooled Mortgage Loan
currently requires only payments of interest but begins to
amortize prior to Stated Maturity Date, on the first Due Date
after amortization begins);
(v)
the Mortgage Rate as of the Closing Date and the Interest
Accrual Basis;
(vi)
the Stated Maturity Date and the original and remaining term to
Stated Maturity Date (or, in the case of a Pooled Mortgage Loan
that is an ARD Mortgage Loan, the Anticipated Repayment Date
and the original and remaining term to the Anticipated
Repayment Date);
(vii)
in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage Loan or an ARD Mortgage Loan, the original and
remaining amortization term;
(viii)
whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Pooled
Mortgage Loans with which such Pooled Mortgage Loan is
cross-collateralized;
(ix)
whether such Pooled Mortgage Loan provides for defeasance and
if so, the period during which
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defeasance may occur;
(x)
whether such Pooled Mortgage Loan is secured by a fee simple
interest in the related Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the related
Mortgaged Property; or solely by a leasehold interest in the
related Mortgaged Property;
(xi)
the name of the related Pooled Mortgage Loan Seller;
(xii)
the Administrative Fee Rate;
(xiii)
the Due Date;
(xiv)
the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a delinquent
Monthly Payment;
(xv)
whether there exists (and, if so, the amount of) any letter of
credit that constitutes Additional Collateral;
(xvi)
whether repayment of such Pooled Mortgage Loan is guaranteed by
a guarantor; and
(xvii)
the initial Master Servicer and the Master Servicing Fee Rate
for such Pooled Mortgage Loan.
"Pooled Mortgage Loan Sellers": Collectively, BSCMI, Nationwide,
PCF,
PMCF and WFB.
"Post-ARD Additional Interest": With respect to any ARD Mortgage
Loan
after its Anticipated Repayment Date, all interest accrued on the
principal
balance of such ARD Mortgage Loan at the Post-ARD Additional
Interest Rate (the
payment of which interest shall, under the terms of such ARD
Mortgage Loan, be
deferred until the principal balance of such ARD Mortgage Loan and
all other
interest thereon has been paid in full), together with all
interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD
Mortgage
Loan after its Anticipated Repayment Date, the incremental increase
in the
Mortgage Rate for such ARD Mortgage Loan resulting from the passage
of such
Anticipated Repayment Date.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular
Interests
and the Certificates for federal income tax purposes, the
assumptions that each
Pooled Mortgage Loan that is an ARD Mortgage Loan is paid in its
entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is
otherwise
voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled Mortgage
Loan
(including a Non-Trust-Serviced Pooled Mortgage Loan) that was
subject to a
Principal Prepayment in full or in part made (or, if resulting from
the
application of Insurance Proceeds or Condemnation Proceeds, any
other early
recovery of principal received) after the Due Date for such Pooled
Mortgage Loan
in any Collection Period, any payment of interest (net of related
Master
Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan,
the rate per annum at which the master or similar servicing and
administrative
fees payable therefrom under the related Non-Trust Servicing
Agreement accrue as
set forth in the definition of "Administrative Fee Rate") and, in
any case,
further net of any portion of such interest that represents Default
Charges or
Post-ARD Additional Interest) actually Received by the Trust and
collected from
the related Borrower or out of such Insurance Proceeds or
Condemnation Proceeds,
as the case may be, and intended to cover the period from and after
such Due
Date to, but not including, the date of prepayment (exclusive, for
the avoidance
of doubt, of any related Prepayment Premium or Yield Maintenance
Charge that may
have been collected).
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"Prepayment Interest Shortfall": With respect to any Pooled
Mortgage
Loan (including a Non-Trust-Serviced Pooled Mortgage Loan) that was
subject to a
Principal Prepayment in full or in part made (or, if resulting from
the
application of Insurance Proceeds or Condemnation Proceeds, any
other early
recovery of principal received) prior to the Due Date for such
Pooled Mortgage
Loan in any Collection Period the amount of interest, to the extent
not
collected from the related Borrower or otherwise (without regard to
any
Prepayment Premium or Yield Maintenance Charge that may have been
collected),
not Received by the Trust, that would have accrued at a rate per
annum equal to
the related Mortgage Rate (net of the Master Servicing Fee Rate
(and, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, the rate per
annum at which
the master or similar servicing and administrative fees payable
therefrom under
the related Non-Trust Servicing Agreement accrue as set forth in
the definition
of "Administrative Fee Rate") and, in the case of an ARD Mortgage
Loan after its
Anticipated Repayment Date, the related Post-ARD Additional
Interest Rate) on
the amount of such Principal Prepayment (or other early recovery of
principal)
during the period from the date to which interest thereon was paid
by the
related Borrower to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any
premium,
fee or other additional amount (other than a Yield Maintenance
Charge) paid or
payable, as the context requires, by a Borrower in connection with
a Principal
Prepayment on, or other early collection of principal of, such
Mortgage Loan or
any successor REO Mortgage Loan with respect thereto (including any
payoff of a
Mortgage Loan by a mezzanine lender on behalf of the subject
Borrower if and as
set forth in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized
Mortgage
Loan, that portion of the Mortgaged Property designated as directly
securing
such Cross-Collateralized Mortgage Loan and excluding any Mortgaged
Property as
to which the related lien may only be foreclosed upon by exercise
of the
cross-collateralization provisions of such Cross-Collateralized
Mortgaged Loan.
"Primary Servicer": Nationwide or any successor thereto or
Principal
Global Investors, LLC or any successor thereto, as applicable,
appointed as
provided in the Nationwide Primary Servicing Agreement or PCF
Primary Servicing
Agreement, respectively.
"Primary Servicing Agreement": Each of the Nationwide Primary
Servicing
Agreement and the PCF Primary Servicing Agreement, as applicable.
"Primary Servicing Fee": With respect to a Primary Servicer, the
primary servicing fee that is payable to such Primary Servicer
under the terms
of the related Primary Servicing Agreement.
"Primary Servicing Office": The office of a Master Servicer or the
Special Servicer, as the context may require, that is primarily
responsible for
such party's servicing obligations hereunder.
"Principal Balance Certificate": Any of the Class A-1, Class A-2,
Class
A-3, Class A-AB, Class A-4, Class A-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 P and Class Q Certificates.
"Principal Balance REMIC III Regular Interest": Any of the
Principal
Balance Certificates (other than the Class A-4FL Certificates) and
the Class
A-4FL REMIC III Regular Interest.
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"Principal Distribution Amount": With respect to any Distribution
Date
other than the Final Distribution Date, an amount (which shall in
no event be
less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following (such
aggregate of the following amounts described below in this clause
(A),
the "Unadjusted Principal Distribution Amount" for such
Distribution
Date):
(i) all payments of principal (including Principal
Prepayments), including any such payments on Corrected Mortgage
Loans, Received by the Trust with respect to the Pooled Mortgage
Loans during the related Collection Period, in each case
exclusive of any portion of the particular payment that
represents a Late Collection of principal for which a P&I
Advance
(including any Unliquidated Advance in respect of a prior P&I
Advance) was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or on a Due
Date occurring subsequent to the calendar month in which such
Distribution Date occurs,
(ii) the aggregate of the principal portions of all Monthly
Payments due in respect of the Pooled Mortgage Loans for their
respective Due Dates occurring in the month in which such
Distribution Date occurs, that were Received by the Trust (other
than as part of a Principal Prepayment) prior to the related
Collection Period (or, in the case of any Pooled Mortgage Loan
for which the Due Date is on the 3rd, 4th or 5th day of each
month, that were Received by the Trust in the calendar month
prior to the calendar month in which the related Distribution
Date occurs but are due during the calendar month in which the
related Distribution Date occurs),
(iii) the aggregate of all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds Received by the
Trust with respect to any Pooled Mortgage Loans during the
related Collection Period that were identified and applied by the
applicable Master Servicer as recoveries of principal (whether as
Principal Prepayments or otherwise) of such Pooled Mortgage Loans
in accordance with Section 1.03, in each case net of any portion
of such proceeds that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance
(including an Unliquidated Advance in respect of a prior P&I
Advance) was previously made under this Agreement for a prior
Distribution Date,
(iv) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the
Trust with respect to any REO Properties during the related
Collection Period that were identified and applied by the
applicable Master Servicer as recoveries of principal (whether as
Principal Prepayments or otherwise) of the related REO Pooled
Mortgage Loans in accordance with Section 1.03, in each case net
of any portion of such proceeds and/or revenues that represents a
Late Collection of principal due on or before the Cut-off Date or
for which a P&I Advance (including an Unliquidated Advance in
respect of a prior P&I Advance) was previously made under this
Agreement for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances
made under this Agreement in respect of the Pooled Mortgage Loans
and any REO Pooled Mortgage Loans with respect to such
Distribution Date;
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(B) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection
Period that, in each case, represents a delinquent amount as to
which
an Advance had been made, which Advance was previously reimbursed
during the Collection Period for a prior Distribution Date as part
of
a Workout-Delayed Reimbursement Amount for which a deduction was
made
under clause (II)(B) below with respect to such Distribution Date;
and
(C) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection
Period that, in each case, is identified and applied by the
applicable
Master Servicer (in accordance with Section 1.03) as a recovery of
an
amount previously determined (in a Collection Period for a prior
Distribution Date) to have been a Nonrecoverable Advance and for
which
a deduction was made under clause (II)(C) below with respect to a
prior Distribution Date; less
(II) the sum of:
(A) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Pooled
Mortgage
Loan or REO Property, and/or any Pooled Mortgage Loan or REO
Property
is otherwise liquidated (including by means of a Final Recovery
Determination or the receipt of a full, partial or discounted
payoff),
during the related Collection Period, an amount equal to any
Special
Servicing Fees, Workout Fees, Liquidation Fees and/or Advance
Interest
(other than Advance Interest on Workout-Delayed Reimbursement
Amounts
or Nonrecoverable Advances paid from collections and recoveries of
principal as described in clause (B) and/or clause (C) below) with
respect to each such Pooled Mortgage Loan or REO Property, as the
case
may be, that were paid hereunder from a source other than related
Default Charges during the related Collection Period;
(B) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that were reimbursed or paid during
the
related Collection Period to one or more of the Master Servicers,
the
Special Servicers, the Trustee and the Fiscal Agent from principal
advances and collections on the Mortgage Pool pursuant to
subsection
(iii) of Section 3.05(a)(II); and
(C) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that were reimbursed or paid during the related
Collection Period to one or more of the Master Servicers, the
Special
Servicers, the Trustee and the Fiscal Agent during the related
Collection Period from principal advances and collections on the
Mortgage Pool pursuant to subsection (iv) of Section 3.05(a)(II).
provided, however, that the foregoing provisions of this definition
shall be
construed in a manner that is consistent with Section 3.02(d).
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal
Balance of the
entire Mortgage Pool outstanding immediately prior to the Final
Distribution
Date.
In no event shall any portion of any Excess Liquidation Proceeds
constitute a portion of the Principal Distribution Amount for any
Distribution
Date.
"Principal Prepayment": Any payment of principal made by the
Borrower
on a Mortgage Loan which is received in advance of its scheduled
Due Date and
that is not accompanied by an amount of interest (without regard to
any
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD
Additional Interest
that may have been collected) representing scheduled interest due
on any date or
dates in any month or months subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement
Memorandum
dated June 8, 2005, relating to certain classes of the
Non-Registered
Certificates delivered by the Depositor to Bear, Stearns & Co.
Inc. and Morgan
Stanley & Co. Incorporated as of the Closing Date.
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"Privileged Person": Any of the following: a party to this
Agreement,
an Underwriter, a Pooled Mortgage Loan Seller, the Controlling
Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate
Administrator
in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as
applicable (which
form shall also be located on, and may be submitted electronically
via, the
Certificate Administrator's internet website), that such Person is
either a
Certificate Owner or a prospective purchaser of a Certificate or
any interest
therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
June
8, 2005, relating to the Registered Certificates, that is a
supplement to the
Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the
outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled
Mortgage Loan)
as of the date of purchase, (b) all accrued and unpaid interest on
such Pooled
Mortgage Loan (or the related REO Pooled Mortgage Loan) at the
related Mortgage
Rate (in the case of a Non-Trust-Serviced Pooled Mortgage Loan, net
of the rate
at which master or similar servicing and administrative fees
payable under the
related Non-Trust Servicing Agreement accrue) to, but not
including, the Due
Date occurring in the Collection Period (or, in the case of any
Pooled Mortgage
Loan for which the Due Date is on the 3rd, 4th or 5th day of each
month, the Due
Date occurring in the month in which such Collection Period ends)
during which
the applicable purchase or repurchase occurs (exclusive, however,
of any portion
of such accrued but unpaid interest that represents Default
Interest or, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional
Interest), (c) all related unreimbursed Servicing Advances
(together with
Unliquidated Advances in respect of prior Servicing Advances) and
all related
Servicing Advances (without duplication with Unliquidated Advances
described in
the immediately preceding parenthetical clause) that were
previously reimbursed
out of collections on other Pooled Mortgage Loans and/or REO
Properties relating
to other Pooled Mortgage Loans, if any, (d) all accrued and unpaid
Advance
Interest with respect to any related Advances, and (e) solely in
the case of a
purchase, repurchase or substitution, as applicable, by a Pooled
Mortgage Loan
Seller pursuant to the related Pooled Mortgage Loan Purchase
Agreement or a
purchase of the Lock Up Storage Centers Pooled Mortgage Loan or the
JL Holdings
Portfolio Pooled Mortgage Loan, as applicable by the related
Non-Pooled
Subordinate Noteholder pursuant to the related Mortgage Loan Group
Intercreditor
Agreement, (i) to the extent not otherwise included in the amount
described in
clause (d) of this definition, any unpaid Special Servicing Fees
and other
outstanding Additional Trust Fund Expenses with respect to such
Pooled Mortgage
Loan (or REO Property) and (ii) to the extent not otherwise
included in the
amount described in clause (c) or clause (e) of this definition,
any costs and
expenses incurred by a Master Servicer, a Special Servicer, the
Trustee or an
agent of any of them (on behalf of the Trust) in enforcing the
obligation, if
any, of a Pooled Mortgage Loan Seller to repurchase or replace such
Mortgage
Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with
at least five years of experience in respect of the relevant
geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" within the meaning of Rule 144A under the Securities Act.
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"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by
Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has
an
outstanding Stated Principal Balance, after application of all
scheduled
payments of principal and interest due during or prior to the month
of
substitution, not in excess of the Stated Principal Balance of the
Defective
Pooled Mortgage Loan as of the Due Date in the calendar month
during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not
less than, and
not more than one percentage point in excess of, the Mortgage Rate
of the
Defective Pooled Mortgage Loan; (iii) has the same monthly Due Date
as, and a
grace period for delinquent Monthly Payments that is no longer
than, the Due
Date and grace period, respectively, of the Defective Pooled
Mortgage Loan; (iv)
accrues interest on the same Interest Accrual Basis as the
Defective Pooled
Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and
not more than one year less than, that of the Defective Pooled
Mortgage Loan,
(vi) has a Stated Maturity Date not later than two years prior to
the Rated
Final Distribution Date; (vii) has a then current loan-to-value
ratio not higher
than, and a then current debt service coverage ratio not lower
than, the
loan-to-value ratio and debt service coverage ratio, respectively,
of the
Defective Pooled Mortgage Loan as of the Closing Date; (viii) has
comparable
prepayment restrictions to those of the Defective Pooled Mortgage
Loan; (ix)
will comply, as of the date of substitution, with all of the
representations
relating to the Defective Pooled Mortgage Loan set forth in or made
pursuant to
the related Pooled Mortgage Loan Purchase Agreement; (x) has a
Phase I
Environmental Assessment relating to the related Mortgaged Property
in its
Servicing File, which Phase I Environmental Assessment will
evidence that there
is no material adverse environmental condition or circumstance at
the related
Mortgaged Property for which further remedial action may be
required under
applicable law; and (xi) constitutes a "qualified replacement
mortgage" within
the meaning of Section 860G(a)(4) of the Code (as evidenced by an
Opinion of
Counsel provided by the related Pooled Mortgage Loan Seller at its
expense);
provided, however, that if more than one mortgage loan is to be
substituted for
any Defective Pooled Mortgage Loan, then all such proposed
Replacement Pooled
Mortgage Loans shall, in the aggregate, satisfy the requirement
specified in
clause (i) of this definition and have a weighted average remaining
term to
stated maturity that satisfies the condition described in clause
(v) above and
each such proposed Replacement Pooled Mortgage Loan shall,
individually, satisfy
each of the requirements specified in clauses (ii) through (iv) and
clauses (vi)
through (xi) of this definition; and provided, further, that no
mortgage loan
shall be substituted for a Defective Pooled Mortgage Loan unless
(a) such
prospective Replacement Pooled Mortgage Loan shall be acceptable to
the
Controlling Class Representative (or, if there is no Controlling
Class
Representative then serving, to the Holders of Certificates
representing a
majority of the Voting Rights allocated to the Controlling Class),
in its (or
their) sole discretion, (b) each Rating Agency for the Rated
Certificates shall
have confirmed in writing to the Trustee that such substitution
will not in and
of itself result in an Adverse Rating Event with respect to any
Class of Rated
Certificates (such written confirmation to be obtained by the
related Pooled
Mortgage Loan Seller effecting the substitution) and (c) the
related Pooled
Mortgage Loan Seller (at its expense) has delivered or caused to
have been
delivered to the Trustee an Opinion of Counsel to the effect that
the
substitution of such mortgage loan would not result in an Adverse
REMIC Event
with respect to any REMIC Pool. When a Qualifying Substitute
Mortgage Loan is
substituted for a Defective Pooled Mortgage Loan, the applicable
Pooled Mortgage
Loan Seller shall certify that the Mortgage Loan meets all of the
requirements
of the above definition and shall send such certification to the
Trustee.
"Ramapo Centre Controlling Party": The Ramapo Centre Non-Pooled
Subordinate Noteholder at any time when a PCF Change of Control
Event does not
exist with respect to the Ramapo Centre Loan Group or the
Controlling Class
Representative at any time when a PCF Change of Control Event
exists with
respect to the Ramapo Centre Loan Group.
"Ramapo Centre Intercreditor Agreement": That certain Co-Lender
Agreement, dated as of April 18, 2005, by and between Principal
Commercial
Funding, LLC, as initial note A lender, and Principal Life
Insurance Company, as
initial note B lender.
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"Ramapo Centre Loan Group": Collectively, the Ramapo Centre Pooled
Mortgage Loan and the Ramapo Centre Non-Pooled Subordinate Loan
(including any
successor REO Mortgage Loans with respect to such loans).
"Ramapo Centre Mortgaged Property": The Mortgaged Property
identified
on the Pooled Mortgage Loan Schedule as "Ramapo Centre".
"Ramapo Centre Non-Pooled Subordinate Loan": The mortgage loan,
with an
original principal balance in the amount of $500,000 that is
secured by the same
Mortgage encumbering the Ramapo Centre Mortgaged Property as the
Ramapo Centre
Pooled Mortgage Loan and is subordinate in right of payment to the
Ramapo Centre
Pooled Mortgage Loan and is held as of the Closing Date by
Principal Life
Insurance Company. The Ramapo Centre Non-Pooled Subordinate Loan is
not a
"Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool or
any Grantor
Trust Pool.
"Ramapo Centre Non-Pooled Subordinate Noteholder": The holder or
holders of the related Mortgage Note evidencing the Ramapo Centre
Non-Pooled
Subordinate Loan.
"Ramapo Centre Pooled Mortgage Loan": The Pooled Mortgage Loan in
the
principal amount of $3,500,000 that is secured by the Mortgage
encumbering the
Ramapo Centre Mortgaged Property.
"Rated Certificate": Any of the Certificates to which a rating has
been
assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of
Rated
Certificates, the Distribution Date in June 2041.
"Rating Agency": With respect to (i) any Class of Rated
Certificates,
each of Moody's and Fitch, and (ii) any provision of this Agreement
relating to
any Serviced Non-Pooled Mortgage Loan in which any Non-Pooled Pari
Passu
Companion Loan Securities evidence interests or by which they are
otherwise
backed or secured, each rating agency then rating any related class
of such
Non-Pooled Pari Passu Companion Loan Securities or its respective
successors in
interest.
"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made (or any related successor REO Pooled
Mortgage Loan as to which a Final Recovery Determination has been
made
as to the related REO Property), and with respect to each Pooled
Mortgage Loan that is a Corrected Mortgage Loan on which all
amounts
have been fully paid under the terms of such Corrected Mortgage
Loan
(as it may have been modified), an amount (not less than zero)
equal
to the excess, if any, of (a) the sum of (i) the unpaid principal
balance of such Pooled Mortgage Loan or REO Pooled Mortgage Loan,
as
the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made or the final
payment
was made, as the case may be, plus (ii) without taking into account
the amount described in subclause (1)(b) of this definition, all
accrued but unpaid interest (exclusive, however, of any portion of
such accrued but unpaid interest that represents Default Interest
or,
in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, Additional Interest) on such Pooled Mortgage Loan or such REO
Pooled Mortgage Loan, as the case may be, to but not including the
Due
Date in the Collection Period in which the Final Recovery
Determination was made or such final payment was made, as the case
may
be, plus (iii) without duplication with amounts included under
another
subclause above, all related unreimbursed Servicing Advances
(together
with Unliquidated Advances in respect of prior Servicing Advances)
and
unpaid Liquidation Expenses, plus (iv) the amount of any and all
related Special Servicing Fees, Liquidation Fees and/or Workout
Fees
with respect to such Mortgage Loan or successor REO Mortgage Loan,
to
the extent not previously reflected as Realized Loss with respect
to
such Mortgage Loan or successor REO Mortgage Loan, over (b) all
payments and proceeds, if any, Received by the Trust in respect of
such Pooled Mortgage Loan or, to the extent allocable to such REO
Pooled
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Mortgage Loan, the related REO Property, as the case may be, during
the Collection Period in which such Final Recovery Determination
was
made or such final payment was made, as the case may be;
(2) each Pooled Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy
or
similar proceeding involving the related Borrower or a
modification,
extension, waiver or amendment of such Mortgage Loan granted or
agreed
to by the applicable Master Servicer or the applicable Special
Servicer pursuant to Section 3.20 (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust
Master Servicer or the related Non-Trust Special Servicer pursuant
to
the related Non-Trust Servicing Agreement), the amount of such
principal and/or interest (other than Default Interest and, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest) or Unliquidated Advance so canceled; and
(3) each Pooled Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any
period
in connection with a bankruptcy or similar proceeding involving the
related Borrower or a modification, extension, waiver or amendment
of
such Pooled Mortgage Loan granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer pursuant to
Section
3.20 (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan,
by
the related Non-Trust Master Servicer or the related Non-Trust
Special
Servicer pursuant to the related Non-Trust Servicing Agreement),
the
amount of the consequent reduction in the interest portion of each
successive Monthly Payment due thereon (on the related Due Date for
the affected Monthly Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss
to
any REMIC I Regular Interest, any REMIC II Regular Interest or any
Class of
Principal Balance REMIC III Regular Interests, as the case may be,
may occur (i)
in the case of any amount described in clause (1) or clause (2)
above, solely
pursuant to, in accordance with and to the extent provided by the
combination of
(x) the accounting for such amount that occurs under the definition
of "Stated
Principal Balance" and (y) the operation of Section 4.04 of this
Agreement and
(ii) in the case of any amount described in clause (3) above,
solely pursuant
to, in accordance with and to the extent provided by the operation
of Section
4.04 of this Agreement.
"Realized Loss Report": With respect to each Collection Period, the
report in the form of and containing the information provided for
on Exhibit E-4
hereto. The Realized Loss Report shall be in Excel format or such
other format
as is reasonably acceptable to the Master Servicers, the Servicer
Report
Administrator, the Trustee, the Certificate Administrator and the
Controlling
Class Representative.
"Received by the Trust": In the case of: (a) a Non-Trust-Serviced
Pooled Mortgage Loan or any REO Property related thereto, received
by the
Trustee (or the applicable Master Servicer on behalf of the
Trustee), as holder
of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage
Loan, on behalf
of the Trust; and (b) any Serviced Mortgage Loan or related REO
Property,
received by a Master Servicer (or any Sub-Servicer thereof), a
Special Servicer
(or any Sub-Servicer thereof) or the Trustee, as the case may be,
on behalf of
the Trust and/or, in connection with a Serviced Mortgage Loan
Group, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s).
"Record Date": With respect to (i) any Distribution Date and each
Class
of Certificates other than the Class A-4FL Certificates, the last
Business Day
of the month immediately preceding the month in which such
Distribution Date
occurs, and (ii) any Distribution Date and the Class A-4FL
Certificates, the
Business Day immediately preceding such Distribution Date.
"Reference Rate": With respect to any Interest Accrual Period, the
applicable rate per annum set forth on the schedule attached hereto
as Schedule
IV.
"Registered Certificate": Any Certificate that has been the subject
of
registration under the Securities Act. As of the Closing Date, the
Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-4FL, Class
X-2, Class A-J,
Class B, Class C and Class D Certificates constitute Registered
Certificates.
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"Regulation S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of
the United
States in reliance on Regulation S, a single global Certificate, or
multiple
global Certificates collectively, in definitive, fully registered
form without
interest coupon, each of which Certificates bears a Regulation S
Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, a legend generally to the effect that
such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
Release Date
except pursuant to an exemption from the registration requirements
of the
Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual
of
Advance Interest, which rate per annum is equal to the "prime rate"
published in
the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may
change from time to time. If The Wall Street Journal ceases to
publish the
"prime rate", then the Trustee, in its sole discretion, shall
select an
equivalent publication that publishes such "prime rate"; and if
such "prime
rate" is no longer generally published or is limited, regulated or
administered
by a governmental or quasi-governmental body, then the Trustee
shall select a
comparable interest rate index. In either case, such selection
shall be made by
the Trustee in its sole discretion and the Trustee shall notify the
Master
Servicers and the Special Servicers in writing of its selection.
"Release Date": The date that is 40 days following the later of (i)
the
Closing Date and (ii) the commencement of the initial offering of
the
Non-Registered Certificates in reliance on Regulation S.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in
Section
2.13(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in
each such
case, designated as a "regular interest" (within the meaning of
Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests
have the
designations and terms provided for in Section 2.13.
"REMIC I Remittance Rate": The per annum rate at which interest
accrues
in respect of any REMIC I Regular Interest during any Interest
Accrual Period,
as set forth in or otherwise calculated in accordance with Section
2.13(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in
Section
2.15(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in
each such
case, designated as a "regular interest" (within the meaning of
Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests
have the
designations provided for in the Preliminary Statement hereto. The
REMIC II
Regular Interests have the terms provided for in Section 2.15.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any
Interest Accrual
Period, as set forth in or otherwise calculated in accordance with
Section
2.15(f).
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"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.17(a).
"REMIC III Component": Any of the separate beneficial ownership
interests in REMIC III issued hereunder, evidenced by a Class of
Interest Only
Certificates. The REMIC III Components have the designations
provided for in the
Preliminary Statement hereto. The REMIC III Components have the
terms provided
for in Section 2.17.
"REMIC III Regular Interest": Any of the Interest Only
Certificates,
the Principal Balance Certificates (other than the Class A-4FL
Certificates) and
the Class A-4FL REMIC III Regular Interest. The REMIC III Regular
Interests have
the terms provided for in Section 2.17.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions": The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and proposed, temporary and final Treasury regulations
and any
published rulings, notices and announcements promulgated
thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and
maintained by a Special Servicer, pursuant to and for the benefit
of the Persons
specified in Section 3.16(b), which shall be entitled (i) in the
case of the
General Special Servicer, "ARCap Servicing, Inc. [or the name of
any successor
Special Servicer], as General Special Servicer, on behalf of
LaSalle Bank
National Association [or the name of any successor Trustee], as
Trustee, in
trust for the registered holders of Bear Stearns Commercial
Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-PWR8, and if
the account is established for the deposit of funds received in
respect of one
or more REO Properties related to any Serviced Mortgage Loan Group
for which it
is the applicable Special Servicer for the owners of the applicable
Serviced
Non-Pooled Mortgage Loans, as their interests may appear, REO
Account"; and (ii)
in the case of the Lock Up Storage Centers Special Servicer,
"Prudential Asset
Resources Inc. [or the name of any successor Lock Up Storage
Centers Special
Servicer], as Lock Up Storage Centers Special Servicer, on behalf
of LaSalle
Bank National Association [or the name of any successor Trustee],
as Trustee, in
trust for the registered holders of the Bear Stearns Commercial
Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series
2005-PWR8, and for the owner of the Lock Up Storage Centers
Non-Pooled
Subordinate Loan, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related
Non-Trust
Servicing Agreement).
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18 (or, in the case of any REO Property
related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related
Non-Trust
Servicing Agreement).
"REO Extension" As defined in Section 3.16(a).
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"REO Mortgage Loan": The successor mortgage loan to a Mortgage Loan
(including those deemed to be outstanding with respect to a
Serviced Non-Pooled
Mortgage Loan or a Non-Trust-Serviced Pooled Mortgage Loan), which
successor
mortgage loan is deemed for purposes hereof to be outstanding with
respect to
each REO Property. Each REO Mortgage Loan shall be deemed to
provide for monthly
payments of principal and/or interest equal to its Assumed Monthly
Payment and
otherwise to have the same terms and conditions as its predecessor
Mortgage Loan
(such terms and conditions to be applied without regard to the
default on such
predecessor Mortgage Loan and the acquisition of the related REO
Property on
behalf of the Trust or, if applicable, in the case of any REO
Property related
to any Mortgage Loan Group, on behalf of the Trust and the
respective holders of
the related Non-Pooled Mortgage Loan(s)). Each REO Mortgage Loan
shall be deemed
to have an initial unpaid principal balance and Stated Principal
Balance equal
to the unpaid principal balance and Stated Principal Balance,
respectively, of
its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All
Monthly Payments (other than a Balloon Payment), Assumed Monthly
Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its
Balloon
Payment) and other amounts due and owing, or deemed to be due and
owing, in
respect of the predecessor Mortgage Loan as of the date of the
related REO
Acquisition, shall be deemed to continue to be due and owing in
respect of an
REO Mortgage Loan. In addition, all amounts payable or reimbursable
to the
applicable Master Servicer, the applicable Special Servicer, the
Trustee or the
Fiscal Agent in respect of the predecessor Mortgage Loan as of the
date of the
related REO Acquisition, including any unpaid or unreimbursed
Master Servicing
Fees, Special Servicing Fees and Advances (together with
Unliquidated Advances
in respect of prior Advances), together with any related unpaid
Advance Interest
on such Advances (other than Unliquidated Advances), shall continue
to be
payable or reimbursable in the same priority and manner pursuant to
Section
3.05(a) to the applicable Master Servicer, the applicable Special
Servicer, the
Trustee, the Fiscal Agent or the Trust, as the case may be, in
respect of an REO
Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the
name
of the Trustee for the benefit of the Certificateholders (and, in
the case of
each such Mortgaged Property relating to a Serviced Mortgage Loan
Group, also on
behalf of the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with the default or
imminent
default of a Mortgage Loan; provided that a Mortgaged Property that
secures a
Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO
Property if and
when it is acquired under the related Non-Trust Servicing Agreement
for the
benefit of the Trustee as the holder of such Non-Trust-Serviced
Pooled Mortgage
Loan and of the holder of the related Non-Pooled Pari Passu
Companion Loan
through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with a default or
imminent default
of such Non-Trust-Serviced Pooled Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property, other than
any income,
profits or proceeds derived from the REO Disposition of such REO
Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute
Mortgage
Loan that is substituted by a Pooled Mortgage Loan Seller for a
Defective Pooled
Mortgage Loan as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer of,
as
applicable, a Master Servicer in the form of Exhibit C-1 attached
hereto or a
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the
case of
fidelity bond coverage provided by such insurance carrier, "A2" by
Moody's and
"A-" by
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Fitch, (ii) in the case of a policy or policies of insurance issued
by such
insurance carrier covering loss occasioned by the errors and
omissions of
officers and employees, "A2" by Moody's and "A-" by Fitch, and
(iii) in the case
of any other insurance coverage provided by such insurance carrier,
"A2" by
Moody's and "A-" by Fitch; provided, however, that (A) an insurance
carrier
shall be deemed to have the applicable claims-paying ability
ratings set forth
above if the obligations of such insurance carrier under the
related insurance
policy are guaranteed or backed in writing by an entity that has
long-term
unsecured debt obligations that are rated not lower than the
ratings set forth
above or claims-paying ability ratings that are not lower than the
ratings set
forth above; and (B) an insurance carrier shall be deemed to have
the applicable
claims-paying ability ratings set forth above if the Rating Agency
whose rating
requirement set forth in clause (i) or (ii), as applicable, of this
definition
has not been met has confirmed in writing that such insurance
carrier would not
result in an Adverse Rating Event with respect to any Class of
Rated
Certificates (and, if the insurance carrier is an issuer of an
insurance policy
relating to a Serviced Mortgage Loan Group or one or more Mortgaged
Properties
that secured such Serviced Mortgage Loan Group, as applicable, the
related
Serviced Mortgage Loan Group Controlling Party has confirmed in
writing that
such insurance carrier is acceptable to such Serviced Mortgage Loan
Group
Controlling Party), unless (with respect to policies maintained by
Borrowers) a
higher claims-paying ability rating is required under any of the
Mortgage Loan
Documents. In connection with insurance coverage related to one or
more of the
PCF Pooled Mortgage Loans or to the obligations of the applicable
Master
Servicer (or a Primary Servicer serving on its behalf) with respect
to one or
more PCF Pooled Mortgage Loan, insurance carried through Lloyd's of
London shall
be deemed to have been issued by an insurer with the Required
Claims-Paying
Ratings, so long as Lloyd's of London has a financial strength
rating of not
less than "A-" by each of S&P and A.M. Best.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on
behalf of the
mortgagee representing: (i) reserves for repairs, replacements,
capital
improvements and/or environmental testing and remediation with
respect to the
related Mortgaged Property; (ii) reserves for tenant improvements
and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be
applied as a
Principal Prepayment on such Mortgage Loan or held as Additional
Collateral in
the event that certain leasing or other economic criteria in
respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the
Certificate
Administrator, any Vice President, any Trust Officer, any Assistant
Secretary or
any other officer of the Certificate Administrator customarily
performing
functions similar to those performed by any of the above designated
officers and
having direct responsibility for the administration of this
Agreement; and (b)
with respect to the Fiscal Agent or the Trustee, any Vice President
or Trust
Officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch
List,
the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet,
the CMSA Financial File, the CMSA Property File and the CMSA
Comparative
Financial Status Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry
Non-Registered Certificates, a single global Certificate, or
multiple global
Certificates collectively, registered in the name of the Depository
or its
nominee, in definitive, fully registered form without interest
coupons, each of
which Certificates bears a Qualified Institutional Buyer CUSIP
number and does
not bear a Regulation S Legend.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc. or its successor in interest. If
neither such rating
agency nor any successor remains in existence, "S&P" shall be
deemed to refer to
such other nationally recognized statistical rating agency or other
comparable
Person designated by the Depositor, notice of which designation
shall be given
to the other parties hereto, and specific ratings of Standard &
Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. herein
referenced shall
be deemed to refer to the equivalent ratings of the party so
designated.
References herein to "applicable rating category" (other than such
references to
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"highest applicable rating category") shall, in the case of
S&P, be deemed to
refer to such applicable rating category of S&P, without regard
to any plus or
minus or other comparable rating qualification.
"Sarbanes-Oxley Certification": As defined in Section 8.15(b).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security
agreement, chattel mortgage or similar document or instrument
creating in favor
of the holder of such Mortgage a security interest in the personal
property
constituting security for repayment of such Mortgage Loan.
"Senior REMIC III Regular Interest": Any of the Class A-1, Class
A-2,
Class A-3, Class A-AB, Class A-4, Class X-1 or Class X-2
Certificates or the
Class A-4FL REMIC III Regular Interest.
"Series 2005-PWR7 PSA": That certain Pooling and Servicing
Agreement
dated as of March 1, 2005 among Bear Stearns Commercial Mortgage
Securities
Inc., as depositor, PAR, as a master servicer, WFB, as a master
servicer, ARCap
Servicing, Inc., as general special servicer, WFB, as certificate
administrator
and tax administrator, LaSalle, as trustee and ABN AMRO, as fiscal
agent,
relating to the Bear Stearns Commercial Mortgage Trust 2005-PWR7,
Commercial
Mortgage Pass-Through Certificates, Series 2005-PWR7.
"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other
than a
Non-Trust-Serviced Pooled Mortgage Loan (and any Non-Pooled
Mortgage Loan that
is related to such Non-Trust-Serviced Pooled Mortgage Loan).
"Serviced Mortgage Loan Group": Each group of mortgage loans (if
any)
that is part of a split loan structure that is principally serviced
and
administered under this Agreement as identified in the Preliminary
Statement
hereto.
"Serviced Mortgage Loan Group Controlling Party": In connection
with
any Serviced Mortgage Loan Group that includes one or more Serviced
Non-Pooled
Subordinate Loans, the Lock Up Storage Centers Controlling Party,
the Park Place
Controlling Party, the JL Holdings Portfolio Controlling Party, the
Aspen
Highlands Controlling Party, the The Landings at Cypress Meadows
Controlling
Party or the Ramapo Centre Controlling Party, as applicable.
"Serviced Non-Pooled Mortgage Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split
loan structure
that is principally serviced and administered under this Agreement
as identified
in the Preliminary Statement hereto.
"Serviced Non-Pooled Mortgage Loan Noteholder": The holder of any
Serviced Non-Pooled Mortgage Loan.
"Serviced Non-Pooled Pari Passu Companion Loan": Each of the
mortgage
loans (if any), other than a Pooled Mortgage Loan, that is part of
a split loan
structure that is principally serviced and administered under this
Agreement, is
secured by the same Mortgage encumbering a Pooled Mortgage Loan and
is pari
passu in right of payment with that Pooled Mortgage Loan. The
Serviced
Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage
Loans" or part of
the Trust Fund, any REMIC Pool or any Grantor Trust Pool.
"Serviced Non-Pooled Pari Passu Companion Loan Noteholder": The
holder
of a Serviced Non-Pooled Pari Passu Companion Loan.
"Serviced Non-Pooled Subordinate Loan": Each of the mortgage loans
(if
any), other than a Pooled Mortgage Loan, that is part of a split
loan structure
that is principally serviced and administered under this Agreement,
is secured
by the same Mortgage encumbering a Pooled Mortgage Loan and is
subordinate in
right of payment with that
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Pooled Mortgage Loan. The Serviced Non-Pooled Subordinate Loans are
not "Pooled
Mortgage Loans" or part of the Trust Fund, any REMIC Pool or any
Grantor Trust
Pool.
"Serviced Non-Pooled Subordinate Noteholder": The holder of a
Serviced
Non-Pooled Subordinate Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan.
"Servicer Report Administrator": PAR as a Master Servicer (without
regard to the final sentence of the definition of "Master
Servicer") or any
successor thereto appointed as provided herein.
"Servicer Report Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as
such and
payable to the Servicer Report Administrator pursuant to Section
8.05(a).
"Servicer Report Administrator Fee Rate": Five ten-thousands of one
percent (0.0005%) per annum.
"Servicing Account": The account or accounts established and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys'
fees and
expenses, incurred or to be incurred, as the context requires, by
the applicable
Master Servicer or the applicable Special Servicer (or, if
applicable, the
Trustee or the Fiscal Agent) in connection with the servicing of a
Serviced
Mortgage Loan (or, in the limited circumstances set forth in
Section 3.01(g), in
connection with the servicing of a Non-Trust-Serviced Pooled
Mortgage Loan) as
to which a default, delinquency or other unanticipated event has
occurred or is
imminent, or in connection with the administration of any
Administered REO
Property, including:
(1) any such costs and expenses associated with (a) compliance
with the obligations of the applicable Master Servicer and/or the
applicable Special Servicer set forth in Sections 2.03, 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and
management of either a Mortgaged Property securing a Serviced
Mortgage
Loan or an Administered REO Property, including the cost of any
"force
placed" insurance policy purchased by the applicable Master
Servicer
or the applicable Special Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the applicable
Master Servicer or Special Servicer is required to cause to be
insured
pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds in respect of any
such
Serviced Mortgage Loan or any Administered REO Property, (d) any
enforcement or judicial proceedings with respect to any such
Mortgage
Loan, including foreclosures and similar proceedings, (e) the
operation, management, maintenance and liquidation of any
Administered
REO Property, (f) obtaining any Appraisal required to be obtained
hereunder, and (g) UCC filings (to the extent that the costs
thereof
are not reimbursed by the related Borrower), and
(2) the reasonable and direct out-of-pocket travel expenses
incurred by the applicable Special Servicer in connection with
performing inspections pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, "Servicing
Advances"
shall not include (A) allocable overhead of a Master Servicer, a
Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, such
as costs for
office space, office equipment, supplies and related expenses,
employee salaries
and related expenses and similar internal costs and expenses, (B)
costs incurred
by or on behalf of any such party hereto or any Affiliate thereof
in connection
with its purchase of any Mortgage Loan or REO Property pursuant to
any provision
of this Agreement or any intercreditor agreement or similar
agreement or (C)
costs or expenses expressly required under this Agreement to be
borne by a
Master Servicer, a Special Servicer, the Trustee or the Fiscal
Agent.
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"Servicing Advances" shall also include, however, any other
expenditure
which is expressly designated as a "Servicing Advance" herein. All
Emergency
Advances made by a Master Servicer at the direction of the
applicable Special
Servicer hereunder shall be considered "Servicing Advances" for the
purposes
hereof.
"Servicing File": Any documents (other than documents required to
be
part of the related Mortgage File, but including originals or
copies of all
management agreements which are not covered by clause (xvii) of the
definition
of "Mortgage File") that are in the possession or under the control
of, or that
are required (pursuant to the applicable Pooled Mortgage Loan
Purchase
Agreement, this Agreement or otherwise) to be delivered and
actually have been
delivered to, as the context may require, the applicable Master
Servicer or the
applicable Special Servicer and relating to the origination and
servicing of any
Mortgage Loan or the administration of any REO Property and
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan,
including any documents delivered by a Pooled Mortgage Loan Seller
as described
in clause (i) of Section 2.01(f).
"Servicing Officer": Any officer or employee of a Master Servicer
or a
Special Servicer involved in, or responsible for, the
administration and
servicing of Mortgage Loans, whose name and specimen signature
appear on a list
of servicing officers furnished by such party to the Certificate
Administrator,
the Trustee and the Depositor on the Closing Date, as such list may
thereafter
be amended from time to time by such Master Servicer or such
Special Servicer,
as the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage
Loan,
the date that servicing thereof is returned by the applicable
Special Servicer
to the applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicers
and
each of the Special Servicers, to service and administer the
Serviced Mortgage
Loans and any Administered REO Properties that such party is
obligated to
service and administer pursuant to this Agreement in the best
interests and for
the benefit of the Certificateholders (or, in the case of a
Serviced Mortgage
Loan Group, for the benefit of the Certificateholders and the
related Serviced
Non-Pooled Mortgage Loan Noteholders) (as determined by the
applicable Master
Servicer or the applicable Special Servicer, as the case may be, in
its good
faith and reasonable judgment), as a collective whole, in
accordance with
applicable law and the terms of this Agreement, and the respective
Mortgage
Loans (including, with respect to a Serviced Mortgage Loan Group,
the related
Mortgage Loan Group Intercreditor Agreement, as applicable) and, to
the extent
consistent with the foregoing, in accordance with the following
standards:
(a) with the same care, skill, prudence and diligence as it
services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself,
whichever is the higher standard with respect to mortgage loans and
REO properties that are comparable to those for which it is
responsible hereunder, giving due consideration to customary and
usual
standards of practice utilized by prudent institutional commercial
mortgage loan servicers under comparable circumstances;
(b) with a view to: (i) in the case of a Master Servicer, the
timely collection of all scheduled payments of principal and
interest,
including Balloon Payments, under the Serviced Mortgage Loans and
the
full collection of all Prepayment Premiums and Yield Maintenance
Charges that may become payable under the Serviced Mortgage Loans,
and
(ii) in the case of the applicable Special Servicer and any
Serviced
Mortgage Loan that is (A) a Specially Serviced Mortgage Loan or (B)
a
Serviced Mortgage Loan as to which the related Mortgaged Property
has
become an Administered REO Property, the maximization of recovery
on
such Mortgage Loan to the Certificateholders (or, in the case of a
Serviced Mortgage Loan Group, to the Certificateholders and the
related Serviced Non-Pooled Mortgage Loan Noteholders, as
applicable),
as a collective whole, of principal and interest, including Balloon
Payments, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Mortgage Loan
Group,
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to the Certificateholders and the related Serviced Non-Pooled
Mortgage
Loan Noteholders, as applicable), as a collective whole, to be
performed at a rate determined by the applicable Special Servicer
but
in no event less than the related Net Mortgage Rate (or, in the
case
of a Serviced Mortgage Loan Group, less than the weighted average
of
the Net Mortgage Rates for the Mortgage Loans in such Serviced
Mortgage Loan Group)); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or the applicable Special Servicer, as
the
case may be, or any of its Affiliates may have with a related
Borrower, a Mortgage Loan Seller or any other party to this
Agreement,
(ii) the ownership of any Certificate or any interest in any other
Mortgage Loan in a Mortgage Loan Group by the applicable Master
Servicer or the applicable Special Servicer, as the case may be, or
any of its Affiliates, (iii) the obligation of the applicable
Master
Servicer to make Advances or otherwise to incur servicing expenses
with respect to any Serviced Mortgage Loan or Administered REO
Property (or, if applicable, to make P&I Advances or (to the
limited
extent set forth herein) Servicing Advances with respect to a
Non-Trust-Serviced Pooled Mortgage Loan), (iv) the obligation of
the
applicable Special Servicer to make, or direct the applicable
Master
Servicer to make, Servicing Advances (including Emergency Advances)
or
otherwise to incur servicing expenses with respect to any Serviced
Mortgage Loan or Administered REO Property, (v) the right of the
applicable Master Servicer or the applicable Special Servicer, as
the
