EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
J.E. ROBERT COMPANY, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of June 13, 2005
----------
$2,060,631,727
LB-UBS Commercial Mortgage Trust 2005-C3
Commercial Mortgage Pass-Through Certificates,
Series 2005-C3
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS
TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01.
Defined Terms.................................................9
SECTION 1.02.
General Interpretive Principles.............................110
SECTION 1.03.
Certain Adjustments to the Net Principal Distributions
on the Certificates......................................111
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Creation of Trust; Conveyance of Trust Mortgage Loans.......114
SECTION 2.02.
Acceptance of Trust Fund by Trustee.........................117
SECTION 2.03.
Repurchase of Trust Mortgage Loans for Document Defects
and Breaches of Representations and Warranties...........119
SECTION 2.04.
Representations, Warranties and Covenants of the
Depositor................................................126
SECTION 2.05.
Acceptance of Grantor Trust Assets by Trustee; Issuance
of the Class V Certificates..............................128
SECTION 2.06.
Acceptance of Loan REMICs by Trustee; Execution,
Authentication and Delivery of Class R-LR
Certificates; Creation of Loan REMIC Regular Interests...129
SECTION 2.07.
Conveyance of Loan REMIC Regular Interests..................129
SECTION 2.08.
Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests......129
SECTION 2.09.
Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee......................................130
SECTION 2.10.
Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.....130
SECTION 2.11.
Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.....................................130
SECTION 2.12.
Execution, Authentication and Delivery of REMIC III
Certificates.............................................130
SECTION 2.13.
Acceptance of Loss of Value Reserve Fund by Trustee.........131
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage Loans........................132
SECTION 3.02.
Collection of Mortgage Loan Payments........................134
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.....................136
SECTION 3.04.
Pool Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account, Excess
Liquidation Proceeds Account and Loss of Value
Reserve Fund.............................................138
SECTION 3.04A.
Loan Combination Custodial Accounts for Loan
Combinations.............................................144
SECTION 3.05.
Permitted Withdrawals From the Pool Custodial Account,
the Collection Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account..............147
SECTION 3.05A.
Permitted Withdrawals From the Loan Combination
Custodial Accounts.......................................154
SECTION 3.06.
Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account, the Custodial Accounts,
the REO Accounts, the Interest Reserve Account and
the Excess Liquidation Proceeds Account..................169
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance...........171
SECTION 3.08.
Enforcement of Alienation Clauses...........................177
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals; Appraisal Reduction Calculation..............181
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files....................................................186
SECTION 3.11.
Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.....................187
SECTION 3.12.
Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports..................194
SECTION 3.12A.
Delivery of Certain Reports to the Non-Trust Mortgage
Loan Noteholders.........................................197
SECTION 3.12B.
Statements to the Non-Trust Mortgage Loan Noteholders.......198
SECTION 3.13.
Annual Statement as to Compliance...........................199
SECTION 3.14.
Reports by Independent Public Accountants...................200
SECTION 3.15.
Access to Certain Information...............................201
SECTION 3.16.
Title to REO Property; REO Accounts.........................202
SECTION 3.17.
Management of REO Property..................................204
SECTION 3.18.
Sale of Trust Mortgage Loans and REO Properties.............207
SECTION 3.19.
Additional Obligations of the Master Servicer and
Special Servicer; Obligations to Notify Ground
Lessors and Hospitality Franchisors; the Special
Servicer's Right to Request the Master Servicer to
Make Servicing Advances..................................211
SECTION 3.20.
Modifications, Waivers, Amendments and Consents;
Defeasance...............................................214
SECTION 3.21.
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.........................223
SECTION 3.22.
Sub-Servicing Agreements....................................225
SECTION 3.23.
Representations and Warranties of the Master Servicer.......228
SECTION 3.24.
Representations and Warranties of the Special Servicer......229
SECTION 3.25.
Certain Matters Regarding the Purchase of the Trust
Mortgage Loan in a Loan Combination......................231
SECTION 3.26.
Application of Default Charges..............................231
SECTION 3.27.
Purchase Option and Cure Rights of the Class ML
Directing Certificateholder..............................239
SECTION 3.28.
Purchase Option and Cure Rights of the Class CBM
Directing Certificateholder..............................240
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions...............................................243
SECTION 4.02.
Statements to Certificateholders; CMSA Loan Periodic
Update File..............................................261
SECTION 4.03.
P&I Advances With Respect to the Mortgage Pool..............268
SECTION 4.04.
Allocations of Realized Losses and Additional Trust Fund
Expenses.................................................274
SECTION 4.05.
Various Reinstatement Amounts...............................276
SECTION 4.06.
Calculations................................................277
SECTION 4.07.
Use of Agents...............................................278
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The Certificates............................................279
SECTION 5.02.
Registration of Transfer and Exchange of Certificates.......279
SECTION 5.03.
Book-Entry Certificates.....................................287
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen Certificates...........289
SECTION 5.05.
Persons Deemed Owners.......................................289
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01.
Liability of Depositor, Master Servicer and Special
Servicer.................................................290
SECTION 6.02.
Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer...........290
SECTION 6.03.
Limitation on Liability of Depositor, Master Servicer
and Special Servicer.....................................291
SECTION 6.04.
Resignation of Master Servicer and the Special Servicer.....292
SECTION 6.05.
Rights of Depositor, Trustee and Non-Trust Mortgage Loan
Noteholders in Respect of the Master Servicer and the
Special Servicer.........................................293
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee...................................293
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.....................................293
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.........................................294
SECTION 6.09.
Designation of Controlling Class Representative, Class
ML Directing Certificateholder and Class CBM
Directing Certificateholder; Replacement of Special
Servicer by the Controlling Class and Others.............294
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate..............................................299
SECTION 6.11.
Certain Powers of the Controlling Class Representative......300
SECTION 6.12.
Certain Matters Regarding the Loan Combinations.............302
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of Default...........................................308
SECTION 7.02.
Trustee to Act; Appointment of Successor....................316
SECTION 7.03.
Notification to Certificateholders..........................317
SECTION 7.04.
Waiver of Events of Default.................................317
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default........317
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of Trustee...........................................318
SECTION 8.02.
Certain Matters Affecting Trustee...........................319
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans............320
SECTION 8.04.
Trustee and Fiscal Agent May Own Certificates...............320
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of and by
Trustee..................................................320
SECTION 8.06.
Eligibility Requirements for Trustee........................321
SECTION 8.07.
Resignation and Removal of Trustee..........................322
SECTION 8.08.
Successor Trustee...........................................323
SECTION 8.09.
Merger or Consolidation of Trustee and Fiscal Agent.........324
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee...............324
SECTION 8.11.
Appointment of Custodians...................................325
SECTION 8.12.
Appointment of Authenticating Agents........................326
SECTION 8.13.
Appointment of Tax Administrators...........................327
SECTION 8.14.
Access to Certain Information...............................327
SECTION 8.15.
Reports to the Securities and Exchange Commission and
Related Reports..........................................329
SECTION 8.16.
Representations and Warranties of Trustee...................335
SECTION 8.17.
The Fiscal Agent............................................337
SECTION 8.18.
Representations and Warranties of Fiscal Agent..............338
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust
Mortgage Loans...........................................340
SECTION 9.02.
Additional Termination Requirements.........................350
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC Administration........................................352
SECTION 10.02.
Grantor Trust Administration................................355
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment...................................................358
SECTION 11.02.
Recordation of Agreement; Counterparts......................360
SECTION 11.03.
Limitation on Rights of Certificateholders..................360
SECTION 11.04.
Governing Law; Consent to Jurisdiction......................361
SECTION 11.05.
Notices.....................................................361
SECTION 11.06.
Severability of Provisions..................................362
SECTION 11.07.
Grant of a Security Interest................................362
SECTION 11.08.
Streit Act..................................................363
SECTION 11.09.
Successors and Assigns; Beneficiaries.......................363
SECTION 11.10.
Article and Section Headings................................364
SECTION 11.11.
Notices to Rating Agencies..................................364
SECTION 11.12.
Complete Agreement..........................................365
SCHEDULES AND EXHIBITS
Schedule No.
Schedule Description
------------
--------------------
I
Trust Mortgage Loan Schedule
II
Representations and Warranties of the Depositor
III
Exceptions to the Representations and Warranties of the Depositor
IV
Schedule of Environmentally Insured Mortgage Loans
V
Schedule of Initial Deposit Mortgage Loans
VI
Schedule of Mortgage Loans Secured by a Hospitality Property or
Nursing Facility
VII
Schedule of Early Defeasance Mortgage Loans
VIII
Schedule of Reference Rates
IX
Schedule of Class A-AB Planned Principal Balances
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class [A-1] [A-2] [A-3] [A-4] [A-AB] [A-5]Certificate
A-2
Form of Class X-CP Certificate
A-3
Form of Class [X-CL] [X-CBM] Certificate
A-4
Form of Class [A-M] [A-J] [B] [C] [D] [E] [F] Certificate
A-5
Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] [ML-1]
[ML-2] [CBM-1] [CBM-2] [CBM-3] Certificate
A-6
Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7
Form of Class V Certificate
B
Form of Distribution Date Statement
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E
Form of Loan Payoff Notification Report
F-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C
Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D
Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1
Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2
Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1
Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2
Form of Transferor Certificate regarding Residual Interest
Certificates
I-1
Form of Notice and Acknowledgment
I-2
Form of Acknowledgment of Proposed Special Servicer
J
Form of UCC-1 Financing Statement Schedule
K
Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L-1
Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
L-2
Form of Information Request/Investor Certification for Website
Access from Prospective Investor
vi
Exhibit No.
Exhibit Description
-----------
-------------------
M
Form of Defeasance Certification
N
Form of Seller/Depositor Notification
O
Form of Controlling Class Representative Confidentiality
Agreement
P
Form of Trustee Backup Certification
Q
Form of Master Servicer Backup Certification
R
Form of Special Servicer Backup Certification
vii
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of June 13, 2005, among STRUCTURED ASSET SECURITIES
CORPORATION II,
as Depositor, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master
Servicer, J.E.
ROBERT COMPANY, INC., as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION, as
Trustee and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued
hereunder in multiple Classes and which in the aggregate will
evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Early
Defeasance Trust Mortgage Loan, if any, as the primary asset of a
separate REMIC
for federal income tax purposes, and each such REMIC will be
designated as a
"Loan REMIC". The Class R-LR Certificates (if issued in accordance
with Section
2.06) will represent the sole class of "residual interests" in each
and every
Loan REMIC, if any, for purposes of the REMIC Provisions under
federal income
tax law. A separate Loan REMIC Regular Interest will, on the
Closing Date, be
issued with respect to, and will thereafter relate to, each Early
Defeasance
Trust Mortgage Loan, if any, included in a Loan REMIC. Each Loan
REMIC Regular
Interest, if any, issued with respect to, and relating to, an Early
Defeasance
Trust Mortgage Loan in a Loan REMIC, shall also relate to any
successor REO
Trust Mortgage Loan with respect to such Early Defeasance Trust
Mortgage Loan.
Each Loan REMIC Regular Interest, if any, shall: (i) bear a numeric
designation
that is the same as the loan number for the related Early
Defeasance Trust
Mortgage Loan set forth on the Trust Mortgage Loan Schedule; (ii)
accrue
interest at the related per annum rate described in the definition
of "Loan
REMIC Remittance Rate"; and (iii) have an initial Uncertificated
Principal
Balance equal to the Cut-off Date Balance of the related Early
Defeasance Trust
Mortgage Loan. The Legal Final Distribution Date of each Loan REMIC
Regular
Interest, if any, is the Distribution Date immediately following
the third
anniversary of the end of the remaining amortization term (as
determined as of
the Closing Date) of the related Early Defeasance Trust Mortgage
Loan. None of
the Loan REMIC Regular Interests (if issued in accordance with
Section 2.06)
will be certificated. Notwithstanding the foregoing, however, if
the Trust Fund
does not include Early Defeasance Trust Mortgage Loans, then (i)
there will be
no Loan REMICs, (ii) neither the Class R-LR Certificates nor any
Loan REMIC
Regular Interests will be issued and (iii) the provisions of
Section 2.06(b)
will apply.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Trust Mortgage Loans (exclusive of
the Early
Defeasance Trust Mortgage Loans, if any, and exclusive of any
collections of
Additional Interest on the ARD Trust Mortgage Loans, if any, after
their
respective Anticipated Repayment Dates), any Loan REMIC Regular
Interests and
certain other related assets subject to this Agreement as a REMIC
for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC I". The Class R-I Certificates will represent the sole class
of "residual
interests" in REMIC I for purposes of the REMIC Provisions under
federal income
tax law. Two separate REMIC I Regular Interests will, on the
Closing Date, be
issued with respect to, and will thereafter relate to, the 200 Park
Avenue Trust
Mortgage Loan, and such REMIC I Regular Interests will bear the
alphanumeric
designations "ML-A-1-A" and "ML-A-1-B", respectively. The 200 Park
Avenue Trust
Mortgage Loan consists of two Loan Components, and each of REMIC I
Regular
Interest ML-A-1-A and REMIC I Regular Interest ML-A-1-B will
correspond to a
separate 200 Park Avenue Loan Component. REMIC I Regular Interest
ML-A-1-A will
relate to 200 Park Avenue Loan Component A-1-A, and REMIC I Regular
Interest
ML-A-1-B will relate to 200 Park Avenue Loan Component A-1-B.
Two separate REMIC I Regular Interests will, on the Closing Date,
be issued with
respect to, and will thereafter relate to, the Courtyard by
Marriott Trust
Mortgage Loan, and such REMIC I Regular Interests will bear the
alphanumeric
designations "CBM-A-1-A" and "CBM-A-1-B", respectively. The
Courtyard by
Marriott Trust Mortgage Loan consists of two Loan Components, and
each of REMIC
I Regular Interest CBM-A-1-A and REMIC I Regular Interest CBM-A-1-B
will relate
to a separate Courtyard by Marriott Loan Component. REMIC I Regular
Interest
CBM-A-1-A will relate to Courtyard by Marriott Loan Component
A-1-A, and REMIC I
Regular Interest CBM-A-1-B will relate to Courtyard by Marriott
Loan Component
A-1-B. In addition, a separate REMIC I Regular Interest will, on
the Closing
Date, be issued with respect to, and will thereafter relate to,
each other Trust
Mortgage Loan and Loan REMIC Regular Interest, if any, included in
REMIC I. Each
REMIC I Regular Interest issued with respect to, and relating to, a
Trust
Mortgage Loan in REMIC I, shall also relate to any successor REO
Trust Mortgage
Loan with respect to such Trust Mortgage Loan and, more
specifically, in the
case of each of the 200 Park Avenue Trust Mortgage Loan and the
Courtyard by
Marriott Trust Mortgage Loan, shall continue to relate to the
applicable Loan
Component of any successor REO Trust Mortgage Loan with respect to
the 200 Park
Avenue Trust Mortgage Loan or the Courtyard by Marriott Trust
Mortgage Loan, as
the case may be. Each REMIC I Regular Interest issued with respect
to, and
relating to, any Loan REMIC Regular Interest, shall also relate to
the Early
Defeasance Trust Mortgage Loan and any successor REO Trust Mortgage
Loan
corresponding to such Loan REMIC Regular Interest. Each REMIC I
Regular Interest
shall: (i) except as otherwise described above with respect to
REMIC I Regular
Interest ML-A-1-A, REMIC I Regular Interest ML-A-1-B, REMIC I
Regular Interest
CBM-A-1-A and REMIC I Regular Interest CBM-A-1-B, bear a numeric
designation
that is the same as the loan number for the related Trust Mortgage
Loan set
forth on the Trust Mortgage Loan Schedule; (ii) accrue interest at
a per annum
rate described in the definition of "REMIC I Remittance Rate;" and
(iii) have an
initial Uncertificated Principal Balance equal to: (A) $278,500,000
in the case
of REMIC I Regular Interest ML-A-1-A; (B) $51,236,204 in the case
of REMIC I
Regular Interest ML-A-1-B; (C) $121,500,000 in the case of REMIC I
Regular
Interest CBM-A-1-A; (D) $42,700,000 in the case of REMIC I Regular
Interest
CBM-A-1-B; and (E) the Cut-off Date Balance of the related Trust
Mortgage Loan
in the case of each other REMIC I Regular Interest. The Legal Final
Distribution
Date of each of the REMIC I Regular Interests is the Distribution
Date
immediately following the third anniversary of the end of the
remaining
amortization term (as determined as of the Closing Date) of the
related Trust
Mortgage Loan. None of the REMIC I Regular Interests will be
certificated.
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-II Certificates will
represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC
Provisions
under federal income tax law. The Legal Final Distribution Date for
each REMIC
II Regular Interest is the latest Rated Final Distribution Date.
None of the
REMIC II Regular Interests will be certificated. 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.
-2-
Initial Uncertificated
Designation of
REMIC II
Principal Balance of
REMIC II Regular
Remittance Rate of REMIC
REMIC II Regular
Interests
II Regular Interests
Interests
----------------
------------------------
----------------------
A-1-1
Variable(1)
$ 65,940,000
A-1-2
Variable(1)
$ 17,060,000
A-2-1
Variable(1)
$ 31,750,000
A-2-2
Variable(1)
$ 91,218,000
A-2-3
Variable(1)
$ 30,032,000
A-3-1
Variable(1)
$ 58,098,000
A-3-2
Variable(1)
$195,345,000
A-3-3
Variable(1)
$ 15,557,000
A-4-1
Variable(1)
$ 43,159,000
A-4-2
Variable(1)
$ 56,841,000
A-AB-1
Variable(1)
$ 20,624,000
A-AB-2
Variable(1)
$ 59,376,000
A-5-1
Variable(1)
$182,137,000
A-5-2
Variable(1)
$509,549,000
A-M
Variable(1)
$196,670,000
A-J
Variable(1)
$184,378,000
B-1
Variable(1)
$ 11,630,000
B-2
Variable(1)
$ 10,495,000
C-1
Variable(1)
$
4,713,000
C-2
Variable(1)
$ 14,954,000
D
Variable(1)
$ 19,667,000
E-1
Variable(1)
$
6,800,000
E-2
Variable(1)
$
5,492,000
F
Variable(1)
$ 19,667,000
G-1
Variable(1)
$
6,186,000
G-2
Variable(1)
$
8,564,000
H
Variable(1)
$ 22,125,000
J-1
Variable(1)
$
9,749,000
J-2
Variable(1)
$
9,918,000
K
Variable(1)
$ 19,667,000
L
Variable(1)
$
7,375,000
M
Variable(1)
$
2,459,000
N
Variable(1)
$
2,458,000
P
Variable(1)
$
4,917,000
Q
Variable(1)
$
2,458,000
S
Variable(1)
$
4,917,000
T
Variable(1)
$ 14,750,523
ML-1
5.45690% per annum
$
7,536,204
ML-2
5.79380% per annum
$ 43,700,000
CBM-1
Fixed(2)
$
5,400,000
CBM-2
Fixed(2)
$ 16,500,000
CBM-3
Fixed(2)
$ 20,800,000
----------
(1)
The REMIC II Remittance Rate in effect for any REMIC II Regular
Interest
(other than REMIC II Regular Interest ML-1, REMIC II Regular
Interest ML-2,
REMIC II Regular Interest CBM-1, REMIC II Regular Interest CBM-2
and REMIC
II Regular Interest CBM-3) during any Interest Accrual Period shall
equal
the Weighted Average REMIC I Remittance Rate for such Interest
Accrual
Period.
-3-
(2)
The REMIC II Remittance Rate in effect for each of REMIC II Regular
Interest CBM-1, REMIC II Regular Interest CBM-2 and REMIC II
Regular
Interest CBM-3 for any Interest Accrual Period shall equal the
Mortgage
Rate in effect for the Courtyard by Marriott Loan Component A-1-B
as of the
Closing Date, minus the related Administrative Cost Rate.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a
REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC III". The Class R-III Certificates will
evidence the sole
class of "residual interests" in REMIC III for purposes of the
REMIC Provisions
under federal income tax law. For federal income tax purposes, each
Class of the
Regular Interest Certificates (exclusive of the Interest-Only
Certificates) and
each REMIC III Component of a Class of Interest-Only Certificates
will be
designated as a separate "regular interest" in REMIC III. The Legal
Final
Distribution Date for each Class of Regular Interest Certificates
(exclusive of
the Interest-Only Certificates) and for each REMIC III Component of
a Class of
Interest-Only Certificates is the latest Rated Final Distribution
Date. The
following table sets forth the Class designation, Pass-Through Rate
and original
Class Principal Balance for each Class of the Regular Interest
Certificates.
-4-
Class
Original Class
Designation of
Pass-Through Rate of
Principal Balance of
Regular Interest
Regular Interest Certificate
Regular Interest
Certificate Classes
Classes
Certificate Classes
-------------------
----------------------------
--------------------
Class A-1
4.39400% per annum
$ 83,000,000
Class A-2
4.55300% per annum
$153,000,000
Class A-3
4.64700% per annum
$269,000,000
Class A-4
Variable(1)
$100,000,000
Class A-AB
4.66400% per annum
$ 80,000,000
Class A-5
4.73900% per annum
$691,686,000
Class A-M
4.79400% per annum
$196,670,000
Class A-J
4.84300% per annum
$184,378,000
Class B
4.89500% per annum
$ 22,125,000
Class C
4.92400% per annum
$ 19,667,000
Class D
4.95400% per annum
$ 19,667,000
Class E
4.98300% per annum
$ 12,292,000
Class F
5.01300% per annum
$ 19,667,000
Class G
Variable(1)
$ 14,750,000
Class H
Variable(1)
$ 22,125,000
Class J
Variable(1)
$ 19,667,000
Class K
Variable(1)
$ 19,667,000
Class L
4.56300% per annum
$
7,375,000
Class M
4.56300% per annum
$
2,459,000
Class N
4.56300% per annum
$
2,458,000
Class P
4.56300% per annum
$
4,917,000
Class Q
4.56300% per annum
$
2,458,000
Class S
4.56300% per annum
$
4,917,000
Class T
4.56300% per annum
$ 14,750,523
Class ML-1
5.45690% per annum
$
7,536,204
Class ML-2
5.79380% per annum
$ 43,700,000
Class CBM-1
4.94400% per annum
$
5,400,000
Class CBM-2
5.36760% per annum
$ 16,500,000
Class CBM-3
5.75310% per annum
$ 20,800,000
Class X-CBM
Variable(1)
(2)
Class X-CL
Variable(1)
(2)
Class X-CP
Variable(1)
(2)
----------
(1)
The respective Pass-Through Rates for the Class A-4, Class G, Class
H,
Class J, Class K, Class X-CL, Class X-CP and Class X-CBM
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".
(2)
No Class of Interest-Only Certificates will have a Class Principal
Balance
or entitle Holders to receive distributions of principal. Each
Class of
Interest-Only Certificates will have a Class Notional Amount which
will be
equal to the aggregate of the Component Notional Amounts of the
related
REMIC III Components from time to time. As more specifically
provided
herein, interest in respect of each Class of Interest-Only
Certificates
will consist of the aggregate amount of interest accrued on the
respective
Component Notional Amounts of the related REMIC III Components from
time to
time.
-5-
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor
Trust
Assets, if any, maintains its status as a grantor trust under the
Code. The
Class V Certificates (if issued in accordance with Section 2.05)
will represent
the entire beneficial ownership of the Grantor Trust Assets.
Notwithstanding the
foregoing, however, if the Trust Fund does not include ARD Trust
Mortgage Loans,
then there will be no Grantor Trusts, the Class V Certificates will
not be
issued and the provisions of Section 2.05(b) will apply.
The Initial Pool Balance will be $2,060,631,727.
There exists one Trust Mortgage Loan (the "200 Park Avenue Trust
Mortgage Loan"), with a Cut-off Date Balance of $329,736,204, that
is evidenced
by a Mortgage Note designated as Note A-1 and is, together with the
two (2)
other mortgage loans that will not be part of the Trust Fund (such
two (2) other
mortgage loans, collectively, the "200 Park Avenue Non-Trust
Mortgage Loans"),
secured on a collective basis by the same Mortgage encumbering the
property
identified on the Trust Mortgage Loan Schedule as 200 Park Avenue
(the "200 Park
Avenue Mortgaged Property"). The 200 Park Avenue Trust Mortgage
Loan consists of
two (2) components (together, the "200 Park Avenue Loan
Components"), designated
as "Note A-1 Tranche A" (the "200 Park Avenue Loan Component
A-1-A") and "Note
A-1 Tranche B" (the "200 Park Avenue Loan Component A-1-B"),
respectively. The
200 Park Avenue Non-Trust Mortgage Loans consist of: (i) one
mortgage loan (the
"200 Park Avenue Note A-2 Non-Trust Mortgage Loan") that has an
unpaid principal
balance as of the Cut-off Date of $285,131,898, is evidenced by a
Mortgage Note
designated as Note A-2 and is, as of the Closing Date, held by an
Affiliate of
the Depositor; and (ii) a second mortgage loan (the "200 Park
Avenue Note A-3
Non-Trust Mortgage Loan") that has an unpaid principal balance as
of the Cut-off
Date of $285,131,898, is evidenced by a Mortgage Note designated as
Note A-3 and
is, as of the Closing Date, held by an Affiliate of the Depositor.
The 200 Park
Avenue Trust Mortgage Loan and the 200 Park Avenue Non-Trust
Mortgage Loans
collectively constitute the "200 Park Avenue Loan Combination"
(which term shall
include any group of successor REO Mortgage Loans with respect to
those three
(3) Mortgage Loans). The relative rights of the respective lenders
in respect of
the 200 Park Avenue Loan Combination are set forth in a co-lender
agreement
dated as of June 13, 2005 (as amended, restated, supplemented or
otherwise
modified from time to time, the "200 Park Avenue Co-Lender
Agreement"), between
the holder of the Mortgage Note for the 200 Park Avenue Trust
Mortgage Loan and
the respective holders of the Mortgage Notes for the 200 Park
Avenue Non-Trust
Mortgage Loans. From and after the Closing Date, the entire 200
Park Avenue Loan
Combination is to be serviced and administered in accordance with
this
Agreement.
There exists one Trust Mortgage Loan (the "Courtyard by Marriott
Trust
Mortgage Loan"), with a Cut-off Date Balance of $164,200,000, that
is evidenced
by a Mortgage Note designated as Note A-1 and is, together with
three (3) other
mortgage loans that will not be part of the Trust Fund (such three
(3) other
mortgage loans, collectively, the "Courtyard by Marriott Non-Trust
Mortgage
Loans"), secured on a collective basis by the same Mortgage
encumbering the
properties collectively identified on the Trust Mortgage Loan
Schedule as
Courtyard by Marriott Portfolio (collectively, the "Courtyard by
Marriott
Mortgaged Property"). The Courtyard by Marriott Trust Mortgage Loan
consists of
two (2) components (together, the "Courtyard by Marriott Loan
Components"),
designated as "Component A-1-A" (the "Courtyard by Marriott Loan
Component
A-1-A") and "Component A-1-B" (the "Courtyard by Marriott Loan
Component
A-1-B"), respectively. The Courtyard by Marriott Non-Trust Mortgage
Loans
consist of: (i) one (1) mortgage loan (the "Courtyard by Marriott
Note A-2
Mortgage Loan") that has an unpaid principal balance as of the
Cut-off Date of
$177,900,000, is
-6-
evidenced by a Mortgage Note designated as Note A-2 and is, as of
the Closing
Date, held by an Affiliate of the Depositor; (ii) one (1) mortgage
loan (the
"Courtyard by Marriott Note A-3 Non-Trust Mortgage Loan"; and each
of the
Courtyard by Marriott Note A-2 Mortgage Loan and the Courtyard by
Marriott Note
A-3 Mortgage Loan, a "Courtyard by Marriott Pari Passu Non-Trust
Mortgage Loan")
that has an unpaid principal balance as of the Cut-off Date of
$177,900,000, is
evidenced by a Mortgage Note designated as Note A-3 and is, as of
the Closing
Date, held by an Affiliate of the Depositor; and (iii) one (1)
mortgage loan
(the "Courtyard by Marriott Note B Non-Trust Mortgage Loan") that
has an unpaid
principal balance as of the Cut-off Date of $30,000,000, is
evidenced by a
Mortgage Note designated as Note B and is, as of the Closing Date,
held by an
Affiliate of the Depositor. The Courtyard by Marriott Trust
Mortgage Loan and
the Courtyard by Marriott Non-Trust Mortgage Loans collectively
constitute the
"Courtyard by Marriott Loan Combination" (which term shall include
any group of
successor REO Mortgage Loans with respect to those four (4)
Mortgage Loans). The
relative rights of the respective lenders in respect of the
Courtyard by
Marriott Loan Combination are set forth in a co-lender agreement
dated as of
June 13, 2005 (as amended, restated, supplemented or otherwise
modified from
time to time, the "Courtyard by Marriott Co-Lender Agreement"),
between the
holder of the Mortgage Note for the Courtyard by Marriott Trust
Mortgage Loan
and the respective holders of the Mortgage Notes for the Courtyard
by Marriott
Non-Trust Mortgage Loans. From and after the Closing Date, the
entire Courtyard
by Marriott Loan Combination is to be serviced and administered in
accordance
with this Agreement.
There exists one Trust Mortgage Loan (the "101 Avenue of the
Americas
Trust Mortgage Loan"), with a Cut-off Date Balance of $89,911,806,
that is
evidenced by a Mortgage Note designated as Note A-1 and is,
together with one
other mortgage loan that will not be part of the Trust Fund (such
other mortgage
loan, the "101 Avenue of the Americas Non-Trust Mortgage Loan"),
secured on a
collective basis by the same Mortgage encumbering the property
identified on the
Trust Mortgage Loan Schedule as 101 Avenue of the Americas (the
"101 Avenue of
the Americas Mortgaged Property"). The 101 Avenue of the Americas
Non-Trust
Mortgage Loan has an unpaid principal balance as of the Cut-off
Date of
$59,941,204, is evidenced by a Mortgage Note designated as Note A-2
and is, as
of the Closing Date, held by Wachovia Bank, National Association.
The 101 Avenue
of the Americas Trust Mortgage Loan and the 101 Avenue of the
Americas Non-Trust
Mortgage Loan together constitute the "101 Avenue of the Americas
Loan
Combination" (which term shall include any pair of successor REO
Mortgage Loans
with respect to those two (2) Mortgage Loans). The relative rights
of the
respective lenders in respect of the 101 Avenue of the Americas
Loan Combination
are set forth in an intercreditor and servicing agreement dated as
of April 22,
2005 (as amended, restated, supplemented or otherwise modified from
time to
time, the "101 Avenue of the Americas Co-Lender Agreement"),
between the holder
of the Mortgage Note for the 101 Avenue of the Americas Trust
Mortgage Loan and
the holder of the Mortgage Note for the 101 Avenue of the Americas
Non-Trust
Mortgage Loan. From and after the Closing Date, the entire 101
Avenue of the
Americas Loan Combination is to be serviced and administered in
accordance with
this Agreement.
There exist another 11 Trust Mortgage Loans (each, a "Note A Trust
Mortgage Loan"), that, in each such case, is evidenced by a
Mortgage Note
designated as Note A and is, together with one (1) other mortgage
loan that will
not be part of the Trust Fund (each such other mortgage loan, an
"A/B Loan
Combination Note B Non-Trust Mortgage Loan"), secured on a
collective basis by
the same Mortgage encumbering the related property identified in
the table
following this paragraph (each property identified in such table,
an "A/B
Mortgaged Property"). The Note A Trust Mortgage Loan and Note B
Non-Trust
Mortgage Loan that are secured by the same Mortgage on a particular
A/B Property
-7-
will, together, constitute an "A/B Loan Combination" (which term
shall include
any pair of successor REO Mortgage Loans with respect to those two
(2) Mortgage
Loans). The relative rights of the respective lenders in respect of
each A/B
Loan Combination are set forth in a co-lender agreement dated as of
June 13,
2005 (each such co-lender agreement, as amended, restated,
supplemented or
otherwise modified from time to time, an "A/B Co-Lender
Agreement"), between the
holder of the Mortgage Note for the Note A Trust Mortgage Loan
comprising such
A/B Loan Combination and the holder of the Mortgage Note for the
Note B
Non-Trust Mortgage Loan comprising such A/B Loan Combination. From
and after the
Closing Date, each A/B Loan Combination is to be serviced and
administered in
accordance with this Agreement. The table below identifies each A/B
Loan
Combination by name of the related Mortgaged Property, Cut-off Date
Balance of
Note A Trust Mortgage Loan and of Note B Non-Trust Mortgage Loan
and the holder
of the Note B Non-Trust Mortgage Loan.
A/B LOAN COMBINATIONS
<TABLE>
Cut-off Date Balance
Cut-off Date Balance
Holder of Note B
of Note A Trust
of Note B Non-Trust
Non-Trust
Mortgaged Property Name(1)
Mortgage Loan
Mortgage Loan
Mortgage Loan(2)
-----------------------------
--------------------
--------------------
-------------------
1.
900 North Michigan Avenue
$207,810,357
$36,967,072
Depositor Affiliate
2.
Medlock Crossing
$ 32,325,000
$ 1,924,534
Depositor Affiliate
3.
University Square
$ 14,135,000
$
924,776
Depositor Affiliate
4.
The Crossing
$
9,320,000
$
582,359
Depositor Affiliate
5.
Lancaster
$
6,815,000
$
544,735
Depositor Affiliate
6.
Roanoke West
$
6,720,000
$
420,000
Depositor Affiliate
7.
Chambersburg
$
5,673,944
$
449,781
Depositor Affiliate
8.
Super K Shops
$
3,900,000
$
179,912
Depositor Affiliate
9.
Crosswoods Commons
$
3,695,000
$
229,888
Depositor Affiliate
10. Springboro Discount Drug
$
3,394,000
$
266,870
Depositor Affiliate
11. Vineland Towne Center
$
2,015,700
$
161,222
Depositor Affiliate
</TABLE>
----------
(1)
Reflects property identified by that name on the Trust Mortgage
Loan
Schedule.
(2)
As of the Closing Date.
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, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent hereby agree, in each case, as follows:
-8-
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"101 Avenue of the Americas Co-Lender Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"101 Avenue of the Americas Controlling Party" shall mean the 101
Avenue of the Americas Directing Lender or any representative
appointed thereby,
consistent with Section 4(m)(ii) of the 101 Avenue of the Americas
Co-Lender
Agreement, to exercise the rights and powers of the 101 Avenue of
the Americas
Directing Lender under the 101 Avenue of the Americas Co-Lender
Agreement or
this Agreement.
"101 Avenue of the Americas Custodial Account" shall mean the Loan
Combination Custodial Account created and maintained by the Master
Servicer
pursuant to Section 3.04A on behalf of the 101 Avenue of the
Americas
Noteholders, which shall be entitled "[NAME OF MASTER SERVICER], as
Master
Servicer, in trust for [NAMES OF 101 AVENUE OF THE AMERICAS
NOTEHOLDERS], as
their interests may appear".
"101 Avenue of the Americas Directing Lender" shall mean the
"Directing Lender" under the 101 Avenue of the Americas Co-Lender
Agreement.
"101 Avenue of the Americas Loan Combination" shall have the
meaning
assigned thereto in the Preliminary Statement.
"101 Avenue of the Americas Master Servicer Remittance Date" shall
mean, with respect to any payment or other collection in respect of
the 101
Avenue of the Americas Loan Combination or any related REO
Property, the
"Business Day" (within the meaning of the 101 Avenue of the
Americas Co-Lender
Agreement) immediately following the receipt of that payment or
other
collection.
"101 Avenue of the Americas Mortgage Loan" shall mean the 101
Avenue
of the Americas Trust Mortgage Loan or the 101 Avenue of the
Americas Non-Trust
Mortgage Loan, as applicable.
"101 Avenue of the Americas Mortgaged Property" shall have the
meaning
assigned thereto in the Preliminary Statement.
-9-
"101 Avenue of the Americas Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"101 Avenue of the Americas Non-Trust Mortgage Loan Noteholder"
shall
mean the holder of the Mortgage Note for the 101 Avenue of the
Americas
Non-Trust Mortgage Loan.
"101 Avenue of the Americas Noteholders" shall mean the holder of
the
Mortgage Note for the 101 Avenue of the Americas Trust Mortgage
Loan, together
with the 101 Avenue of the Americas Non-Trust Mortgage Loan
Noteholder.
"101 Avenue of the Americas REO Account" shall mean the Loan
Combination REO Account created and maintained by the Special
Servicer pursuant
to Section 3.16 on behalf of the 101 Avenue of the Americas
Noteholders, which
shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer,
in trust for
[NAMES OF 101 AVENUE OF THE AMERICAS NOTEHOLDERS], as their
interests may
appear".
"101 Avenue of the Americas REO Mortgage Loan" shall mean any REO
Mortgage Loan relating to any 101 Avenue of the Americas REO
Property.
"101 Avenue of the Americas REO Property" shall mean the 101 Avenue
of
the Americas Mortgaged Property at such time that it becomes an
"REO Property"
hereunder.
"101 Avenue of the Americas REO Trust Mortgage Loan" shall mean any
REO Trust Mortgage Loan relating to any 101 Avenue of the Americas
REO Property.
"101 Avenue of the Americas Specially Designated Servicing Action"
shall mean, with respect to the 101 Avenue of the Americas Loan
Combination or
any related REO Property, any of the actions specified in clauses
(A) through
(N) of Section 4(m)(i) of the 101 Avenue of the Americas Co-Lender
Agreement.
"101 Avenue of the Americas Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement, which
mortgage loan is
identified on the Trust Mortgage Loan Schedule by loan number 5 and
is, together
with the 101 Avenue of the Americas Non-Trust Mortgage Loan,
secured by the same
Mortgage on the 101 Avenue of the Americas Mortgaged Property.
"200 Park Avenue Co-Lender Agreement" shall have the meaning
assigned
thereto in the Preliminary Statement.
"200 Park Avenue Collection Period" shall mean, with respect to any
200 Park Avenue Master Servicer Remittance Date, any Trust Master
Servicer
Remittance Date or any Distribution Date, the period commencing on
the day
immediately following the 200 Park Avenue Determination Date in the
calendar
month preceding the calendar month in which such 200 Park Avenue
Master Servicer
Remittance Date, such Trust Master Servicer Remittance Date or such
Distribution
Date, as the case may be, occurs (or, in the case of each of the
initial 200
Park Avenue Master Servicer Remittance Date, the initial Trust
Master Servicer
Remittance Date and the initial Distribution Date, commencing
immediately
following the Cut-off Date) and ending on and including the 200
Park Avenue
Determination Date in the calendar month in which such 200 Park
Avenue Master
Servicer Remittance Date, such Trust Master Servicer Remittance
Date or such
Distribution Date, as the case may be, occurs.
-10-
"200 Park Avenue Controlling Party" shall mean the 200 Park Avenue
Directing Lender or any representative appointed thereby,
consistent with
Section 3.02(d) of the 200 Park Avenue Co-Lender Agreement, to
exercise the
rights and powers of the 200 Park Avenue Directing Lender under the
200 Park
Avenue Co-Lender Agreement or this Agreement. The representative,
appointed in
accordance with Section 3.02(d) of the 200 Park Avenue Co-Lender
Agreement and
pursuant to Section 6.12(d) of this Agreement, (i) of the 200 Park
Avenue
Directing Lender, during a Class ML Control Period, shall be the
Class ML
Directing Certificateholder, and (ii) of the holder of the 200 Park
Avenue
Mortgage Loan, with respect to matters relating to the 200 Park
Avenue Directing
Lender, when a Class ML Control Period is not in effect, shall be
the
Controlling Class Representative.
"200 Park Avenue Cure Rights" shall mean the cure rights granted to
the holder of the Mortgage Note for the 200 Park Avenue Trust
Mortgage Loan
under Article VII of the 200 Park Avenue Co-Lender Agreement. The
representative
of the Trust, as holder of the Mortgage Note for the 200 Park
Avenue Trust
Mortgage Loan, with respect to the exercise of the 200 Park Avenue
Cure Rights
(if and to the extent it is permitted to exercise such rights under
the 200 Park
Avenue Co-Lender Agreement), appointed in accordance with Section
6.13 of the
200 Park Avenue Co-Lender Agreement and pursuant to Section 3.27 of
this
Agreement, shall be the Class ML Directing Certificateholder.
"200 Park Avenue Custodial Account" shall mean the Loan Combination
Custodial Account created and maintained by the Master Servicer
pursuant to
Section 3.04A on behalf of the 200 Park Avenue Noteholders, which
shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust
for [NAME OF
200 PARK AVENUE NOTEHOLDERS], as their interests may appear".
"200 Park Avenue Determination Date" shall mean the "Determination
Date" under the 200 Park Avenue Co-Lender Agreement.
"200 Park Avenue Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the 200 Park Avenue
Co-Lender
Agreement.
"200 Park Avenue Loan Combination" shall have the meaning assigned
thereto in the Preliminary Statement.
"200 Park Avenue Loan Component A-1-A" shall have the meaning
assigned
thereto in the Preliminary Statement (and is identified as "Note
A-1 Tranche A"
under the related loan agreement); provided that the 200 Park
Avenue Loan
Component A-1-A shall continue to exist with respect to any 200
Park Avenue REO
Trust Mortgage Loan in accordance with the terms of the related
loan documents
and without regard to the fact that the 200 Park Avenue Mortgaged
Property has
become an REO Property.
"200 Park Avenue Loan Component A-1-B" shall have the meaning
assigned
thereto in the Preliminary Statement (and is identified as "Note
A-1 Tranche B"
under the related loan agreement); provided that the 200 Park
Avenue Loan
Component A-1-B shall continue to exist with respect to any 200
Park Avenue REO
Trust Mortgage Loan in accordance with the terms of the related
loan documents
and without regard to the fact that the 200 Park Avenue Mortgaged
Property has
become an REO Property.
-11-
"200 Park Avenue Loan Components" shall have the meaning assigned
thereto in the Preliminary Statement; provided that the 200 Park
Avenue Loan
Components shall continue to exist with respect to any 200 Park
Avenue REO Trust
Mortgage Loan in accordance with the terms of the related loan
documents and
without regard to the fact that the 200 Park Avenue Mortgaged
Property has
become an REO Property.
"200 Park Avenue Master Servicer Remittance Date" shall mean the
"Remittance Date" under the 200 Park Avenue Co-Lender Agreement.
"200 Park Avenue Mortgage Loan" shall mean the 200 Park Avenue
Trust
Mortgage Loan or a 200 Park Avenue Non-Trust Mortgage Loan, as
applicable.
"200 Park Avenue Mortgaged Property" shall have the meaning
assigned
thereto in the Preliminary Statement.
"200 Park Avenue Non-Trust Mortgage Loan Noteholder" shall mean the
holder (or, if applicable, the collective holders) of the Mortgage
Note for a
200 Park Avenue Non-Trust Mortgage Loan.
"200 Park Avenue Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"200 Park Avenue Non-Pooled Loan Component" shall mean the 200 Park
Avenue Loan Component A-1-B.
"200 Park Avenue Note A-2 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"200 Park Avenue Note A-2 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the 200 Park Avenue Note A-2 Non-Trust Mortgage Loan.
"200 Park Avenue Note A-3 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"200 Park Avenue Note A-3 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the 200 Park Avenue Note A-3 Non-Trust Mortgage Loan.
"200 Park Avenue Noteholders" shall mean the holder of the Mortgage
Note for the 200 Park Avenue Trust Mortgage Loan, together with the
200 Park
Avenue Non-Trust Mortgage Loan Noteholders.
"200 Park Avenue Pooled Loan Component" shall mean the 200 Park
Avenue
Loan Component A-1-A.
"200 Park Avenue REO Account" shall mean the Loan Combination REO
Account created and maintained by the Special Servicer pursuant to
Section 3.16
on behalf of the 200 Park
-12-
Avenue Noteholders, which shall be entitled "[NAME OF SPECIAL
SERVICER], as
Special Servicer, in trust for [NAME OF 200 PARK AVENUE
NOTEHOLDERS], as their
interests may appear".
"200 Park Avenue REO Mortgage Loan" shall mean any REO Mortgage
Loan
relating to any 200 Park Avenue REO Property.
"200 Park Avenue REO Property" shall mean the 200 Park Avenue
Mortgaged Property at such time as it becomes an REO Property
hereunder.
"200 Park Avenue REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to any 200 Park Avenue REO Property.
"200 Park Avenue Specially Designated Servicing Action" shall mean,
with respect to the 200 Park Avenue Loan Combination or any related
REO
Property, any of the actions specified in clauses (i) through (ix)
of the first
paragraph of Section 3.02(a) of the 200 Park Avenue Co-Lender
Agreement.
"200 Park Avenue Payment Trigger Event" shall mean, with respect to
any Distribution Date, the event that exists when, as of the 200
Park Avenue
Master Servicer Remittance Date in the same month as such
Distribution Date,
payments with respect to the 200 Park Avenue Loan Combination are
being made in
accordance with Section 4.01(b) of the 200 Park Avenue Co-Lender
Agreement.
"200 Park Avenue Trust Mortgage Loan" shall have the meaning
assigned
thereto in the Preliminary Statement, which Trust Mortgage Loan is
identified on
the Trust Mortgage Loan Schedule by loan number 1 and is, together
with the 200
Park Avenue Non-Trust Mortgage Loans, secured by the same Mortgage
on the 200
Park Avenue Mortgaged Property.
"900 North Michigan Co-Lender Agreement" shall mean the Co-Lender
Agreement, dated as of June 13, 2005 (as amended, restated,
supplemented or
otherwise modified from time to time), between the holder of the
Mortgage Note
for the 900 North Michigan Trust Mortgage Loan and the holder of
the Mortgage
Note for the 900 North Michigan Non-Trust Mortgage Loan.
"900 North Michigan Cure Rights" shall mean the cure rights granted
to
the 900 North Michigan Non-Trust Mortgage Loan Noteholder under
Article VII of
the 900 North Michigan Co-Lender Agreement.
"900 North Michigan Loan Combination" shall mean the A/B Loan
Combination consisting of the 900 North Michigan Mortgage Loans (or
any pair of
successor REO Mortgage Loans with respect thereto).
"900 North Michigan Mortgage Loan" shall mean the 900 North
Michigan
Trust Mortgage Loan or the 900 North Michigan Non-Trust Mortgage
Loan, as
applicable.
"900 North Michigan Mortgaged Property" shall mean the Mortgaged
Property identified on the Mortgage Loan Schedule as 900 North
Michigan Avenue.
-13-
"900 North Michigan Non-Trust Mortgage Loan Noteholder" shall mean
the
holder (or, if applicable, the collective holders) of the Mortgage
Note for the
900 North Michigan Non-Trust Mortgage Loan.
"900 North Michigan Non-Trust Mortgage Loan" shall mean the Note B
Non-Trust Mortgage Loan that is secured by the Mortgage on the 900
North
Michigan Mortgaged Property.
"900 North Michigan Noteholders" shall mean the holder of the
Mortgage
Note for the 900 North Michigan Trust Mortgage Loan, together with
the 900 North
Michigan Non-Trust Mortgage Loan Noteholder.
"900 North Michigan Trust Mortgage Loan" shall mean the Trust
Mortgage
Loan identified on the Trust Mortgage Loan Schedule by loan number
3 which is,
together with the 900 North Michigan Non-Trust Mortgage Loan,
secured by the
same Mortgage on the 900 North Michigan Mortgaged Property.
"A/B Change of Control Event" shall mean: (a) with respect to the
900
North Michigan Trust Loan Combination only, the event that occurs
when (i) the
aggregate outstanding principal amount of the 900 North Michigan
Non-Trust
Mortgage Loan or any successor REO Mortgage Loans with respect
thereto (net of
any existing Appraisal Reduction Amount with respect to the 900
North Michigan
Loan Combination) is less than 27.5% of an amount equal to the
original
aggregate principal amount of the 900 North Michigan Non-Trust
Mortgage Loan,
and (ii) the 900 North Michigan Trust Mortgage Loan or any
successor REO Trust
Mortgage Loan with respect thereto has not been repaid in full; and
(b) with
respect to each A/B Loan Combination (other than the 900 North
Michigan Loan
Combination), the event that occurs when (i) the aggregate
outstanding principal
amount of the related Note B Non-Trust Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto (net of any existing Appraisal
Reduction
Amount with respect to the subject A/B Loan Combination) is less
than 25.0% of
an amount equal to the original aggregate principal amount of such
Note B
Non-Trust Mortgage Loan, and (ii) the related Note A Trust Mortgage
Loan or any
successor REO Trust Mortgage Loan with respect thereto has not been
repaid in
full.
"A/B Co-Lender Agreement" shall have the meaning assigned thereto
in
the Preliminary Statement.
"A/B Controlling Party" shall mean, with respect to any A/B Loan
Combination or any related REO Property, the related A/B Directing
Lender or any
representative appointed thereby, consistent with Section 3.02(d)
of the related
A/B Co-Lender Agreement, to exercise the rights and powers of the
related A/B
Directing Lender under the related A/B Co-Lender Agreement or this
Agreement.
"A/B Custodial Account" shall mean, with respect to any A/B Loan
Combination, the Loan Combination Custodial Account created and
maintained by
the Master Servicer pursuant to Section 3.04A on behalf of the
related A/B
Noteholders, which shall be entitled "[NAME OF MASTER SERVICER], as
Master
Servicer, in trust for [NAME OF RELATED A/B NOTEHOLDERS], as their
interests may
appear".
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"A/B Directing Lender" shall mean, with respect to any A/B Loan
Combination or any related REO Property, as of any date of
determination, the
"Directing Lender" under the A/B Co-Lender Agreement.
"A/B Loan Combination" shall have the meaning assigned thereto in
the
Preliminary Statement.
"A/B Loan Combination Note B Non-Trust Mortgage Loan" shall have
the
meaning assigned thereto in the Preliminary Statement.
"A/B Mortgage Loan" shall mean, with respect to each A/B Loan
Combination, the Note A Trust Mortgage Loan or the Note B Non-Trust
Mortgage
Loan, as applicable, that is part of such A/B Loan Combination.
"A/B Mortgaged Property" shall have the meaning assigned thereto in
the Preliminary Statement.
"A/B Noteholders" shall mean the holder of the Mortgage Note for
any
Note A Trust Mortgage Loan, together with the related Note B
Non-Trust Mortgage
Loan Noteholder.
"A/B REO Account" shall mean, with respect to any A/B REO Property,
the related Loan Combination REO Account created and maintained by
the Special
Servicer pursuant to Section 3.16 on behalf of the related A/B
Noteholders,
which shall be entitled "[NAME OF SPECIAL SERVICER], as Special
Servicer, in
trust for [NAME OF RELATED A/B NOTEHOLDERS], as their interests may
appear".
"A/B REO Property" shall mean any A/B Mortgaged Property at such
time
as it becomes an REO Property hereunder.
"A/B Specially Designated Servicing Action" shall mean, with
respect
to any A/B Loan Combination or any related REO Property, any of the
actions
specified in the roman numbered clauses contained in the first
paragraph of
Section 3.02(a) of the A/B Co-Lender Agreement.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related loan documents
resulting from (a)
the exclusion of acts of terrorism from coverage under the related
all risk
casualty insurance policy maintained on the subject Mortgaged
Property and (b)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but only if the Special Servicer has determined,
in its
reasonable judgment (subject to Section 6.11 and/or Section 6.12,
in each case
if and as applicable), that (i) such insurance is not available at
commercially
reasonable rates and the subject hazards are not commonly insured
against at the
time for real properties similar to the subject Mortgaged Property
and located
in and around the region in which the subject Mortgaged Property is
located, or
(ii) such insurance is not available at any rate. Subject to the
Servicing
Standard, in making any of the determinations under and in
accordance with
subclause (i) or (ii) of this definition, the Special Servicer
shall be entitled
to reasonably rely on the opinion of an insurance consultant.
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"Accepted Servicing Practices" shall mean the Servicing Standard.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest
Certificates, the
amount of which interest shall equal: (a) in the case of any Class
of Class ML
Certificates or any Class of Class CBM Principal Balance
Certificates for any
Interest Accrual Period, the product of (i) the annual Pass-Through
Rate
applicable to such Class of Certificates for such Interest Accrual
Period,
multiplied by (ii) the Class Principal Balance of such Class of
Certificates
outstanding immediately prior to the related Distribution Date,
multiplied by
(iii) a fraction, the numerator of which is the number of days in
such Interest
Accrual Period, and the denominator of which is 360; (b) in the
case of any
other Class of Principal Balance Certificates for any Interest
Accrual Period,
one-twelfth of the product of (i) the annual Pass-Through Rate
applicable to
such Class of Certificates for such Interest Accrual Period,
multiplied by (ii)
the Class Principal Balance of such Class of Certificates
outstanding
immediately prior to the related Distribution Date; and (c) in the
case of any
Class of Interest-Only Certificates for any Interest Accrual
Period, the
aggregate amount of Accrued Component Interest with respect to all
of the REMIC
III Components of such Class of Certificates for such Interest
Accrual Period.
The Class ML Certificates and the Class CBM Principal Balance
Certificates shall
accrue interest on an Actual/360 Basis, and the remaining Regular
Interest
Certificates shall accrue interest on a 30/360 Basis.
"Accrued Component Interest" shall mean the interest accrued from
time
to time with respect to any REMIC III Component of any Class of
Interest-Only
Certificates, the amount of which interest shall equal: (a) in the
case of any
Class X-CBM REMIC III Component for any Interest Accrual Period,
the product of
(i) the annual Pass-Through Rate applicable to such Class X-CBM
REMIC III
Component for such Interest Accrual Period, multiplied by (ii) the
Component
Notional Amount of such Class X-CBM REMIC III Component outstanding
immediately
prior to the related Distribution Date, multiplied by (iii) a
fraction, the
numerator of which is the number of days in such Interest Accrual
Period, and
the denominator of which is 360; and (b) in the case of any Class
X-CL REMIC III
Component or Class X-CP REMIC III Component for any Interest
Accrual Period,
one-twelfth of the product of (i) the annual Pass-Through 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. Each Class
X-CBM REMIC III
Component shall accrue interest on an Actual/360 Basis, and each
Class X-CL
REMIC III Component and Class X-CP REMIC III Component shall accrue
interest on
a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property,
the
first day on which such REO Property or any interest therein is
considered to be
acquired by the Trust Fund within the meaning of Treasury
regulations section
1.856-6(b)(1), which shall be the first day on which the Trust Fund
is treated
as the owner of such REO Property or an interest therein for
federal income tax
purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest
accrual
period in a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the
meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
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"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, subject to Section
2.05(b), all
interest accrued on the principal balance of such ARD Mortgage Loan
at the
Additional Interest Rate and, if so provided in the related loan
documents,
compounded at the related Mortgage Rate (the payment of which
interest shall,
under the terms of such ARD Mortgage Loan, be deferred until the
entire
outstanding principal balance thereof has been paid). For purposes
of this
Agreement, Additional Interest on an ARD Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto shall be deemed not to
constitute principal
or any portion thereof and shall not be added to the unpaid
principal balance or
Stated Principal Balance of such ARD Mortgage Loan or any successor
REO Mortgage
Loan with respect thereto, notwithstanding that the terms of the
related loan
documents so permit. To the extent that any Additional Interest is
not paid on a
current basis, it shall, for purposes of this Agreement, be deemed
to be
deferred interest (regardless of whether it is added to principal
outstanding
with respect to the related ARD Mortgage Loan in accordance with
the related
loan documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, subject to
Section 2.05(b),
the incremental increase in the Mortgage Rate for such loan
resulting from the
passage of such Anticipated Repayment Date.
"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund or any particular asset
therein; (ii) is
not paid by or on behalf of any Mortgagor and is not covered by a
nonreimbursable payment by any party hereto; (iii) is not otherwise
included in
the calculation of a Realized Loss in respect of any particular
Trust Mortgage
Loan or REO Trust Mortgage Loan; and (iv) would result or has
resulted, as the
case may be, in the Holders of Regular Interest Certificates
receiving less than
the full amount of principal and/or Distributable Certificate
Interest to which
they are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean, with
respect
to any Loan REMIC Regular Interest or REMIC I Regular Interest that
relates to
an Interest Reserve Mortgage Loan or an Interest Reserve REO
Mortgage Loan
(other than REMIC I Regular Interest ML-A-1-B and REMIC I Regular
Interest
CBM-A-1-B), for any Interest Accrual Period, an amount of interest
equal to the
product of (a) the Mortgage Rate for the related Trust Mortgage
Loan (or, in the
case of each of REMIC I Regular Interest ML-A-1-A and REMIC I
Regular Interest
CBM-A-1-A, the annual component interest rate for the corresponding
Loan
Component of the related Trust Mortgage Loan) in effect as of the
Closing Date
(without regard to any modifications, extensions, waivers or
amendments of the
related Trust Mortgage Loan subsequent to the Closing Date),
multiplied by (b) a
fraction, the numerator of which is the number of days in such
Interest Accrual
Period, and the denominator of which is 360, multiplied by (c) the
Uncertificated Principal Balance of such Loan REMIC Regular
Interest or REMIC I
Regular Interest, as the case may be, immediately prior to the
Distribution Date
that corresponds to such Interest Accrual Period; provided that, if
the subject
Interest Accrual Period ends during (x) January of 2006 or any year
thereafter
that is not a leap year or (y) February of 2006 or any year
thereafter, then the
amount of interest calculated with respect to any particular Loan
REMIC Regular
Interest or REMIC I Regular Interest pursuant to this definition
for such
Interest Accrual Period without regard to this proviso shall be
decreased by the
Interest Reserve Amount, if any, with respect to the related
Interest Reserve
Mortgage Loan or Interest Reserve REO Mortgage Loan, as the case
may be,
transferred (in accordance with Section 3.04(c)) from the
Collection Account to
the Interest Reserve Account in the calendar month in which such
Interest
Accrual Period ends; and provided, further, that, if the subject
Interest
Accrual Period ends during March of 2006 or any year thereafter,
then the amount
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calculated with respect to any particular Loan REMIC Regular
Interest or REMIC I
Regular Interest pursuant to this definition for such Interest
Accrual Period
without regard to this proviso shall be increased by the Interest
Reserve
Amount(s), if any, with respect to the related Interest Reserve
Mortgage Loan or
Interest Reserve REO Mortgage Loan, as the case may be, transferred
(in
accordance with Section 3.05(c)) from the Interest Reserve Account
to the
Collection Account in the calendar month in which such Interest
Accrual Period
ends.
"Adjusted Net Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Net Principal
Distribution Amount
for such Distribution Date, plus (b) all amounts added to such Net
Principal
Distribution Amount pursuant to Section 1.03(c) for such
Distribution Date,
minus (c) all amounts subtracted from such Net Principal
Distribution Amount
pursuant to Section 1.03(b) for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean, with respect to any
REMIC II Regular Interest (other than REMIC II Regular Interest
ML-1 and REMIC
II Regular Interest ML-2), for any Interest Accrual Period, an
annual rate equal
to the annual Pass-Through Rate in effect during such Interest
Accrual Period
for the Class of Principal Balance Certificates as to which such
REMIC II
Regular Interest is the sole Corresponding REMIC II Regular
Interest or is one
of two or more Corresponding REMIC II Regular Interests, as
applicable.
"Administrative Cost Rate" shall mean, with respect to each Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto),
the corresponding rate per annum specified as the "Administrative
Cost Rate" on
the Trust Mortgage Loan Schedule, which, for each Trust Mortgage
Loan (or any
successor REO Trust Mortgage Loan with respect thereto), is equal
to the sum of
the related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean, subject to Section
2.05(b),
any endangerment to the status of the Grantor Trust as a grantor
trust under the
Grantor Trust Provisions or any imposition of a tax on the Grantor
Trust or any
of its assets or transactions.
"Adverse Rating Event" shall mean: (i) with respect to any Class of
Certificates, as of any date of determination, the qualification,
downgrade or
withdrawal of any rating then assigned to such Class of
Certificates by either
Rating Agency; and (ii) with respect to any class of Pari Passu
Non-Trust
Mortgage Loan Securities, as of any date of determination, the
qualification,
downgrade or withdrawal of any rating then assigned to such
securities by either
Rating Agency or by Fitch.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool,
any
endangerment of the status of such REMIC Pool as a REMIC under the
REMIC
Provisions or, except as permitted by Section 3.17(a), any
imposition of a tax
on such 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
prohibited contributions set forth in Section 860G(d) of the Code
and/or the tax
on "net income from foreclosure property" as defined in Section
860G(c) of the
Code).
"Affiliate" shall mean, 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
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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" shall mean this Pooling and Servicing Agreement,
together
with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned
thereto
in Section 3.14.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, subject to Section 2.05(b), the date specified in
the related
loan documents after which the Mortgage Rate for such ARD Mortgage
Loan will
increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any
Required
Appraisal Loan, an amount (calculated initially as of the
applicable
Determination Date immediately following the later of the date on
which the
subject Trust Mortgage Loan or Loan Combination, as applicable,
became a
Required Appraisal Loan and the date on which the applicable
Required Appraisal
was obtained, and thereafter as of each subsequent applicable
Determination Date
during the period that the subject Trust Mortgage Loan, REO Trust
Mortgage Loan
or Loan Combination, as applicable, remains a Required Appraisal
Loan) 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 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 Additional Interest and/or Default
Interest), (iii) all
accrued and unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in
respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances
made by or on behalf of (plus all accrued interest on such Advances
payable to)
the Master Servicer and/or any other party hereto with respect to
such Required
Appraisal Loan, (v) any other unpaid items that could become
Additional Trust
Fund Expenses in respect of such Required Appraisal Loan, (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
Master Servicer
or the Special Servicer for such items) and (vii) if applicable, in
the case of
the 101 Avenue of the Americas Loan Combination, the 200 Park
Avenue Loan
Combination or the Courtyard by Marriott Loan Combination, to the
extent known
to the Master Servicer, any and all interest accrued on delinquency
advances
comparable to P&I Advances made in respect of a Securitized
Pari Passu Non-Trust
Mortgage Loan included in such Loan Combination (or any successor
REO Mortgage
Loan with respect thereto) that is payable under any related Pari
Passu
Non-Trust Mortgage Loan Securitization Agreement; over (b) the
Required
Appraisal Value. Notwithstanding the foregoing, if (i) any Trust
Mortgage Loan
or Loan Combination becomes a Required Appraisal Loan, (ii) either
(A) no
Required Appraisal or update thereof has been obtained or
conducted, as
applicable, with respect to the related Mortgaged Property during
the 12-month
period prior to the date such Trust Mortgage Loan or Loan
Combination, as the
case may be, became a Required Appraisal Loan or (B) there shall
have occurred
since the date of the most recent Required Appraisal or update
thereof a
material change in the circumstances surrounding the related
Mortgaged
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Property that would, in the Special Servicer's reasonable judgment,
materially
affect the value of the related Mortgaged Property, and (iii) no
Required
Appraisal is obtained or conducted, as applicable, in accordance
with Section
3.09(a), within 60 days after such Trust Mortgage Loan or Loan
Combination, as
the case may be, became a Required Appraisal Loan, then (x) until
such Required
Appraisal or update is obtained or conducted, as applicable, in
accordance with
Section 3.09(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 3.09(a), of
such Required
Appraisal or update thereof by the Special Servicer, the Appraisal
Reduction
Amount for such Required Appraisal Loan shall be recalculated in
accordance with
the preceding sentence of this definition. For purposes of this
definition, each
Required Appraisal Loan that is part of a Cross-Collateralized
Group shall be
treated separately for the purposes of calculating any Appraisal
Reduction
Amount.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Trust Mortgage Loan or Loan Combination, as
applicable, ceases
to be a Required Appraisal Loan, and no Appraisal Reduction Amount
shall exist
as to any Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with
respect thereto) or any Loan Combination after it has been paid in
full,
liquidated, repurchased or otherwise disposed of.
The Master Servicer shall calculate, pursuant to this Agreement and
consistent with the related Co-Lender Agreement, any Appraisal
Reduction Amount
with respect to a Split Trust Mortgage Loan and shall allocate the
resulting
Appraisal Reduction Amount, between the respective Pooled Loan
Component and
Non-Pooled Loan Component of the subject Split Trust Mortgage Loan
in accordance
with this Agreement and the related Co-Lender Agreement; and the
related
Non-Trust Mortgage Loan Noteholder(s) shall be entitled to rely on
such
calculations, and the allocations to the subject Non-Pooled Loan
Components or
any successor REO Trust Mortgage Loan(s) with respect thereto, as
reported to it
or them, as the case may be, by the Master Servicer. The Master
Servicer shall
also calculate, pursuant to this Agreement and consistent with the
related
Co-Lender Agreement, any Appraisal Reduction Amount with respect to
a Loan
Combination and shall allocate the resulting Appraisal Reduction
Amount, between
or among, as the case may be, the respective Mortgage Loans
comprising the
subject Loan Combination in accordance with this Agreement and the
related
Co-Lender Agreement; and the related Non-Trust Mortgage Loan
Noteholder(s) shall
be entitled to rely on such calculations, and the allocations to
the subject
Non-Trust Mortgage Loan(s) or any successor REO Trust Mortgage
Loan(s) with
respect thereto, as reported to it or them, as the case may be, by
the Master
Servicer.
"Appraised Value" shall mean, with respect to each Mortgaged
Property
or REO Property, the appraised value thereof based upon the most
recent
appraisal or update thereof prepared by an Independent Appraiser
that is
contained in the related Servicing File or, in the case of any such
property
with or that had, as the case may be, an allocated loan amount of,
or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as
the case may
be, with a Stated Principal Balance of, less than $2,000,000,
either (a) the
most recent appraisal or update thereof that is contained in the
related
Servicing File or (b) the most recent "desktop" value estimate
performed by the
Special Servicer that is contained in the related Servicing File.
"ARD Mortgage Loan" shall mean, subject to Section 2.05(b), any
Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) that
provides that if the unamortized principal balance thereof is not
repaid by a
date certain set forth in the related loan documents, such Mortgage
Loan (or
successor REO Mortgage Loan) will accrue additional interest at the
rate
specified in the
-20-
related Mortgage Note and the related Mortgagor is required to
apply certain
excess monthly cash flow generated by the related Mortgaged
Property to the
repayment of the outstanding principal balance on such Mortgage
Loan. If none of
the Trust Mortgage Loans are reflected on the Trust Mortgage Loan
Schedule as
being ARD Mortgage Loans, then Section 2.05(b) shall apply.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is
an ARD Mortgage Loan. If none of the Trust Mortgage Loans are
reflected on the
Trust Mortgage Loan Schedule as being ARD Mortgage Loans, then
Section 2.05(b)
shall apply.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar
document or
instrument executed by the Mortgagor in connection with the
origination of the
related Mortgage Loan(s).
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for
each Due Date
coinciding with or following its Maturity Date as of which such
Mortgage Loan
remains outstanding and part of the Trust Fund (or, in the case of
a Non-Trust
Mortgage Loan, if applicable, as of which (i) such Non-Trust
Mortgage Loan
remains outstanding and (ii) the related Trust Mortgage Loan
remains part of the
Trust Fund) (provided that such Mortgage Loan was not paid in full,
and no other
Liquidation Event occurred in respect thereof, before the end of
the related
Collection Period in which such Maturity Date occurs), the
scheduled monthly
payment of principal and/or interest deemed to be due in respect of
such
Mortgage Loan on such Due Date equal to the amount that would have
been due in
respect thereof on such Due Date if such Mortgage Loan had been
required to
continue to accrue interest (other than Default 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) with respect to any REO Mortgage Loan,
for any Due
Date as of which the related REO Property (or any interest therein)
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 (a) of
this definition, the Assumed Monthly Payment) that was due (or
deemed due) in
respect of the related Mortgage Loan on the last Due Date prior to
its becoming
an REO Mortgage Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent
appointed
pursuant to Section 8.12 (or, in the absence of any such
appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to:
(a) the sum, without duplication, of (i) the aggregate amount of
all
payments and other collections on or with respect to the Trust
Mortgage
Loans and any REO Properties (including Loss of Value Payments and,
in the
case of the initial Distribution Date, any Initial Deposits) that
(A) were
Received by the Trust as of the end of the related Collection
Period and
(B) are on deposit in the Collection Account as of 12:00 noon (New
York
City time) on such Distribution Date, (ii) the aggregate amount of
any P&I
Advances made by the Master Servicer, the Trustee and/or the Fiscal
Agent
with respect to the Mortgage Pool for distribution on the
Certificates on
such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount
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deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with
Prepayment
Interest Shortfalls on the Mortgage Pool, (iv) to the extent not
included
in the amount described in clause (a)(i) of this definition, the
aggregate
amount transferred from the Excess Liquidation Proceeds Account to
the
Collection Account pursuant to Section 3.05(d) in respect of such
Distribution Date, (v) to the extent not included in the amount
described
in clause (a)(i) of this definition, if such Distribution Date is
the Final
Distribution Date, the aggregate amount transferred from the Loss
of Value
Reserve Fund to the Collection Account pursuant to Section 3.05(e)
in
respect of such Distribution Date, and (vi) to the extent not
included in
the amount described in clause (a)(i) of this definition, if such
Distribution Date occurs during March of 2006 or any year
thereafter, the
aggregate of the Interest Reserve Amounts transferred from the
Interest
Reserve Account to the Collection Account in respect of the
Interest
Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
for
distribution on such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i)
scheduled
Monthly Payments that are due on a Due Date following the end of
the
related Collection Period (or, in the case of a scheduled Monthly
Payment
that is due on a Due Date in the same month as such Distribution
Date but
subsequent to the end of the related Collection Period, following
the end
of the calendar month in which such Distribution Date occurs), (ii)
any
amounts payable or reimbursable to any Person from the Collection
Account
pursuant to clauses (ii) through (v) and (viii) of Section 3.05(b),
(iii)
Prepayment Consideration and/or Additional Interest, (iv) if such
Distribution Date occurs during January of 2006 or any year
thereafter that
is not a leap year or during February of 2006 or any year
thereafter, the
Interest Reserve Amounts with respect to the Interest Reserve
Mortgage
Loans and any Interest Reserve REO Mortgage Loans to be withdrawn
from the
Collection Account and deposited into the Interest Reserve Account
in
respect of such Distribution Date and held for future distribution,
all
pursuant to Section 3.04(c), and (v) amounts deposited in the
Collection
Account in error;
provided that the Available Distribution Amount for the Final
Distribution Date
shall consist of all amounts on deposit in the Collection Account
as of the time
distributions are to be made to Certificateholders on the Final
Distribution
Date, exclusive of any portion of such amounts that are payable or
reimbursable
to any Person from the Collection Account pursuant to clauses (ii)
through (v)
and (viii) of Section 3.05(b), that were deposited in the
Collection Account in
error or that represent Prepayment Consideration and/or Additional
Interest.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of
the Closing
Date provides for an amortization schedule extending beyond its
Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled
Payment due
on its Stated Maturity Date is significantly larger than the
Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any
regularly
scheduled monthly payment, due with respect to such Mortgage Loan
at maturity.
-22-
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that
is a Balloon Mortgage Loan.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section
7.01(c), the
amount of such proceeds (net of any expenses incurred in connection
with such
bid and the transfer of servicing), multiplied by a fraction equal
to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case
may be, as of such date of determination, over (b) the aggregate of
the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as
of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday
or a
day on which banking institutions in New York, New York, or in any
of the cities
in which the Corporate Trust Office of the Trustee, the Primary
Servicing Office
of the Master Servicer or the Primary Servicing Office of the
Special Servicer
are located, are authorized or obligated by law or executive order
to remain
closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2005-C3, Commercial Mortgage Pass-Through Certificates,
Series 2005-C3, as
executed by the Certificate Registrar and authenticated and
delivered hereunder
by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of
Regular
Interest Certificates, as of any date of determination, a fraction,
expressed as
a decimal carried to six places, the numerator of which is the then
current
Class Principal Balance or Class Notional Amount, as the case may
be, of such
Class of Regular Interest Certificates, and the denominator of
which is the
Original Class Principal Balance or Original Class Notional Amount,
as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the
then notional
amount of such Certificate 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" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such
Certificate as
reflected on the books of the Depository or on the books of
-23-
a Depository Participant or on the books of an indirect
participating brokerage
firm for which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the
then
outstanding principal balance 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" shall mean the register maintained pursuant
to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate
is registered in the Certificate Register, except that: (i) neither
a
Disqualified Organization nor a Disqualified Non-United States Tax
Person shall
be Holder of a Residual Interest Certificate for any purpose
hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver
pursuant to
this Agreement that relates to the rights and/or obligations of any
of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the
Trustee in its respective capacity as such, any Certificate
registered in the
name of the Depositor, the Master Servicer, the Special Servicer,
the Fiscal
Agent or the Trustee, as the case may be, or any Certificate
registered in the
name of any of its Affiliates, 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 relates to it has
been obtained
(provided that the provisions of this clause (ii) are not intended
to limit the
rights of the Controlling Class Representative, the Class ML
Directing
Certificateholder or the Class CBM Directing Certificateholder (any
of which may
be an Affiliate of the Special Servicer) as are specifically set
forth in this
Agreement with respect to any consent, approval or waiver required
or permitted
to be made by the Controlling Class Representative, the Class ML
Directing
Certificateholder or the Class CBM Directing Certificateholder or
any rights
under Section 6.09 with respect to any election, removal or
replacement of the
Special Servicer or the Controlling Class Representative). The
Certificate
Registrar shall be entitled to request and rely upon a certificate
of the
Depositor, the Master Servicer or the Special Servicer in
determining whether a
Certificate is registered in the name of an Affiliate of such
Person. All
references herein to "Certificateholders" shall reflect the rights
of
Certificate Owners as they may indirectly exercise such rights
through the
Depository and the Depository Participants, except as otherwise
specified
herein; provided, however, that the parties hereto shall be
required to
recognize as a "Certificateholder" only the Person in whose name a
Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan
Payoff
Notification Report and the CMSA Investor Reporting Package.
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in
Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the
same alphabetic or alphanumeric, as applicable, class designation.
-24-
"Class A-1 Certificate" shall mean 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" shall mean 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" shall mean 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" shall mean 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-5 Certificate" shall mean any one of the Certificates with
a
"Class A-5" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate" shall mean 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" shall mean, with respect to
any
Distribution Date, the targeted Class Principal Balance of the
Class A-AB
Certificates for such date set forth on Schedule IX attached
hereto.
"Class A-J Certificate" shall mean any one of the Certificates with
a
"Class A-J" designation on the face thereof, substantially in the
form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-M Certificate" shall mean any one of the Certificates with
a
"Class A-M" designation on the face thereof, substantially in the
form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the
form of Exhibit
A-4 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 CBM Available Distribution Amount" shall mean, with respect
to
any Distribution Date, an amount equal to the aggregate (without
duplication) of
the following payments and collections that are allocable to the
Courtyard by
Marriott Non-Pooled Component pursuant to the Courtyard by Marriott
Co-Lender
Agreement:
(a) the sum, without duplication, of (i) any payments and other
collections on or with respect to the Courtyard by Marriott
Non-Pooled
Component and on or with respect to the Courtyard by Marriott REO
Property
that are allocable under the Courtyard by Marriott Co-Lender
Agreement to
the Courtyard by Marriott Non-Pooled Component (including Loss of
Value
Payments with respect to the Courtyard by Marriott Non-Pooled
Component)
that (A) were Received by the Trust as of the end of the related
Collection
Period and (B) are on deposit in the Collection Account as of 12:00
noon
(New York City time) on such Distribution Date, (ii) the amount
deposited
by the Master Servicer in the Collection Account for such
Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls on the Courtyard by Marriott Non-Pooled Component, and
(iii) to
the extent not included in the amount described in clause (a)(i) of
this
definition, if such Distribution Date is the Final Distribution
Date, the
aggregate amount transferred from the Loss of Value Reserve Fund to
the
Collection Account with respect to the Courtyard by Marriott
Non-Pooled
Component pursuant to Section 3.05(e) in respect of such
Distribution Date;
net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i)
scheduled
Monthly Payments with respect to the Courtyard by Marriott
Non-Pooled
Component that are due on a Due Date following the end of the
Courtyard by
Marriott Collection Period, (ii) any amounts payable or
reimbursable to any
Person from the Collection Account from payments and other
collections on
the Courtyard by Marriott Non-Pooled Component pursuant to clauses
(ii)
through (v) and (viii) of Section 3.05(b), (iii) Prepayment
Consideration
with respect to the Courtyard by Marriott Non-Pooled Component, and
(iv)
amounts deposited in the Collection Account with respect to the
Courtyard
by Marriott Non-Pooled Component in error;
provided that, with respect to any Distribution Date, the Class CBM
Available
Distribution Amount shall not exceed the sum of (i) the Class CBM
Principal
Distribution Amount for (or, in the case of the final Distribution
Date, the
aggregate of the Class Principal Balances of all the Classes of the
Class CBM
Principal Balance Certificates immediately prior to) such
Distribution Date,
(ii) the aggregate Distributable Certificate Interest in respect of
all the
Classes of the Class CBM Certificates for such Distribution Date
and, to the
extent not previously paid, for all prior Distribution Dates, if
any, and (iii)
the aggregate Loss Reimbursement Amount with respect to all the
Classes of the
Class CBM Certificates for such Distribution Date.
"Class CBM Certificate" shall mean any of the Class CBM-1, Class
CBM-2
and Class CBM-3 Certificates.
"Class CBM-1 Certificate" shall mean any one of the Certificates
with
a "Class CBM-1" designation on the face thereof, substantially in
the form of
Exhibit A-5 attached hereto, and evidencing a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
-26-
"Class CBM-2 Certificate" shall mean any one of the Certificates
with
a "Class CBM-2" designation on the face thereof, substantially in
the form of
Exhibit A-5 attached hereto, and evidencing a class of "regular
interests" in
REMIC II for purposes of the REMIC Provisions.
"Class CBM-3 Certificate" shall mean any one of the Certificates
with
a "Class CBM-3" designation on the face thereof, substantially in
the form of
Exhibit A-5 attached hereto, and evidencing a class of "regular
interests" in
REMIC II for purposes of the REMIC Provisions.
"Class CBM Certificateholders" shall mean the holders of the Class
CBM
Certificates.
"Class CBM Certificates" shall mean, collectively, the Class X-CBM
Certificates and the Class CBM Principal Balance Certificates.
"Class CBM Change of Control Event" shall mean the event that
exists
when, as of any date of determination, the unpaid principal amount
of the
Courtyard by Marriott Non-Pooled Component (net of any Appraisal
Reduction
Amount with respect to the Courtyard by Marriott Loan Combination
that is
allocable to the Courtyard by Marriott Non-Pooled Loan Component)
is less than
27.5% of the initial unpaid principal amount of the Courtyard by
Marriott
Non-Pooled Component.
"Class CBM Control Period" shall mean any period during which a
Courtyard by Marriott Change of Control Event exists and a Class
CBM Change of
Control Event does not exist.
"Class CBM Directing Certificateholder" shall have the meaning
assigned thereto in Section 6.09(b).
"Class CBM Net Prepayment Consideration" shall mean that portion of
any Net Prepayment Consideration received with respect to, and
allocable to, the
Courtyard by Marriott Non-Pooled Loan Component in accordance with
the related
loan documents and the Courtyard by Marriott Co-Lender Agreement.
"Class CBM Principal Balance Certificates" shall mean,
collectively,
the Class CBM-1, Class CBM-2 and Class CBM-3 Certificates.
"Class CBM Principal Distribution Amount" shall mean, with respect
to
any Distribution Date, an amount equal to the aggregate (without
duplication) of
the following payments and collections that are allocable to the
Courtyard by
Marriott Non-Pooled Component pursuant to the Courtyard by Marriott
Co-Lender
Agreement:
(a) any payments of principal (other than Principal Prepayments)
Received by the Trust with respect to the Courtyard by Marriott
Non-Pooled
Component during the applicable Courtyard by Marriott Collection
Period,
exclusive of any portion of the particular payment that represents
all or
any part of the principal portion of a Monthly Payment allocable to
the
Courtyard by Marriott Non-Pooled Component and due on or before the
Cut-off
Date or on a Due Date subsequent to the Courtyard by Marriott
Collection
Period;
(b) the principal portion of all Monthly Payments with respect to
the
Courtyard by Marriott Non-Pooled Component due on a Due Date
occurring
during the applicable Courtyard
-27-
by Marriott Collection Period, that were Received by the Trust
prior to the
applicable Courtyard by Marriott Collection Period;
(c) any Principal Prepayments with respect to the Courtyard by
Marriott Non-Pooled Component Received by the Trust during the
applicable
Courtyard by Marriott Collection Period;
(d) any Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds with respect to the Courtyard by Marriott Non-Pooled
Component
Received by the Trust during the applicable Courtyard by Marriott
Collection Period that were identified and applied by the Master
Servicer
as recoveries of principal on the Courtyard by Marriott Non-Pooled
Component; and
(e) any Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and REO Revenues with respect to any Courtyard by Marriott
REO
Properties Received by the Trust during the applicable Courtyard by
Marriott Collection Period that were identified and applied by the
Master
Servicer as recoveries of principal on the Courtyard by Marriott
REO Trust
Mortgage Loan that are allocable under the Courtyard by Marriott
Co-Lender
Agreement to the Courtyard by Marriott Non-Pooled Component.
"Class CBM Purchase Option Event" shall mean, for so long as a
Courtyard by Marriott Change of Control Event exists, the existence
of the
following circumstances as of any date of determination: (a) the
Courtyard by
Marriott Mortgage Loans constitute Specially Serviced Mortgage
Loans; and (b)
any Monthly Payment under the Courtyard by Marriott Loan
Combination is at least
60 days delinquent.
"Class CBM Purchase Price" shall mean, with respect to the
Courtyard
by Marriott Trust Mortgage Loan, in connection with a purchase
thereof by the
Class CBM Directing Certificateholder pursuant to Section 3.28, a
price equal to
the sum of, without duplication, the aggregate of (i) the
outstanding principal
balance of the Courtyard by Marriott Trust Mortgage Loan, together
with all
accrued and unpaid interest (including the Master Servicing Fee) on
the
Courtyard by Marriott Trust Mortgage Loan (excluding, however, any
such accrued
and unpaid interest that represents Default Interest), (ii) all
other sums (in
addition to principal and interest) then due and owing under the
terms of the
Courtyard by Marriott Trust Mortgage Loan (excluding, however, any
such accrued
and unpaid interest that represents Default Interest), (iii) all
expenses
(including amounts incurred by and owing to the Trustee, the Fiscal
Agent, the
Master Servicer and the Special Servicer, if any) associated with
the subject
purchase, and (iv) any amount relating to the Courtyard by Marriott
Trust
Mortgage Loan in respect of servicing compensation, Advances and
all interest
paid or payable, as the context may require, to the Master Servicer
or any other
party hereunder with respect to Advances made with respect to the
Courtyard by
Marriott Loan Combination by the Master Servicer or any such other
party, at the
Reimbursement Rate, which Advances are, at the time of purchase,
payable or
reimbursable to the Trustee, the Fiscal Agent, the Master Servicer
or any other
Person under this Agreement.
"Class CBM Sub-Account" shall mean a sub-account of the Pool
Custodial
Account established by the Master Servicer pursuant to Section
3.04(a) on behalf
of the Class CBM Certificateholders, which shall be entitled "[NAME
OF MASTER
SERVICER], as Master Servicer, in trust for the Class CBM
Certificateholders, as
their interests may appear". References herein to Pool Custodial
Account are
intended to include the portion thereof that is the Class CBM
Sub-Account.
-28-
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the
form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class
H" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the
form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of
"regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class
K" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class
L" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a
"Class
M" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class ML Available Distribution Amount" shall mean, with respect
to
any Distribution Date, an amount equal to the aggregate (without
duplication) of
the following payments and collections that are allocable to the
200 Park Avenue
Non-Pooled Component pursuant to the 200 Park Avenue Co-Lender
Agreement:
(a) the sum, without duplication, of (i) any payments and other
collections on or with respect to the 200 Park Avenue Non-Pooled
Component
and on or with respect to the 200 Park Avenue REO Property that are
allocable under the 200 Park Avenue Co-Lender Agreement to the 200
Park
Avenue Non-Pooled Component (including Loss of Value Payments with
respect
to the 200 Park Avenue Non-Pooled Component) that (A) were Received
by the
Trust as of the end of the related Collection Period and (B) are on
deposit
in the Collection Account as of 12:00 noon (New York City time) on
such
Distribution Date, (ii) the amount deposited by the Master
-29-
Servicer in the Collection Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls
on the
200 Park Avenue Non-Pooled Component, and (iii) to the extent not
included
in the amount described in clause (a)(i) of this definition, if
such
Distribution Date is the Final Distribution Date, the aggregate
amount
transferred from the Loss of Value Reserve Fund to the Collection
Account
with respect to the 200 Park Avenue Non-Pooled Component pursuant
to
Section 3.05(e) in respect of such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i)
scheduled
Monthly Payments with respect to the 200 Park Avenue Non-Pooled
Component
that are due on a Due Date following the end of the 200 Park Avenue
Portfolio Collection Period, (ii) any amounts payable or
reimbursable to
any Person from the Collection Account from payments and other
collections
on the 200 Park Avenue Non-Pooled Component pursuant to clauses
(ii)
through (v) and (viii) of Section 3.05(b), (iii) Prepayment
Consideration
with respect to the 200 Park Avenue Non-Pooled Component, and (iv)
amounts
deposited in the Collection Account with respect to the 200 Park
Avenue
Non-Pooled Component in error.
provided that, with respect to any Distribution Date, the Class ML
Available
Distribution Amount shall not exceed the sum of (i) the Class ML
Principal
Distribution Amount for (or, in the case of the final Distribution
Date, the
aggregate of the Class Principal Balances of all the Classes of the
Class ML
Certificates immediately prior to) such Distribution Date, (ii) the
aggregate
Distributable Certificate Interest in respect of all the Classes of
the Class ML
Certificates for such Distribution Date and, to the extent not
previously paid,
for all prior Distribution Dates, if any, and (iii) the aggregate
Loss
Reimbursement Amount with respect to all the Classes of the Class
ML
Certificates for such Distribution Date.
"Class ML-1 Certificate" shall mean any one of the Certificates
with a
"Class ML-1" designation on the face thereof, substantially in the
form of
Exhibit A-5 attached hereto, and evidencing a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class ML-2 Certificate" shall mean any one of the Certificates
with a
"Class ML-2" designation on the face thereof, substantially in the
form of
Exhibit A-5 attached hereto, and evidencing a class of "regular
interests" in
REMIC II for purposes of the REMIC Provisions.
"Class ML Certificateholders" shall mean the holders of the Class
ML
Certificates.
"Class ML Certificates" shall mean any of the Class ML-1 or Class
ML-2
Certificates.
"Class ML Change of Control Event" shall mean the event that exists
when, as of any date of determination, the unpaid principal amount
of the 200
Park Avenue Non-Pooled Component (net of any Appraisal Reduction
Amount with
respect to the 200 Park Avenue Loan Combination that is allocable
to the 200
Park Avenue Non-Pooled Loan Component) is less than 27.5% of the
initial unpaid
principal amount of the 200 Park Avenue Non-Pooled Component.
"Class ML Control Period" shall mean any period when there is no
continuing Class ML Change of Control Event.
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"Class ML Directing Certificateholder" shall have the meaning
assigned
thereto in Section 6.09(b).
"Class ML Net Prepayment Consideration" shall mean that portion of
any
Net Prepayment Consideration received with respect to, and
allocable to, the 200
Park Avenue Non-Pooled Loan Component in accordance with the
related loan
documents and the 200 Park Avenue Co-Lender Agreement.
"Class ML Principal Distribution Amount" shall mean, with respect
to
any Distribution Date, an amount equal to the aggregate (without
duplication) of
the following payments and collections that are allocable to the
200 Park Avenue
Non-Pooled Component pursuant to the 200 Park Avenue Co-Lender
Agreement:
(a) any payments of principal (including Principal Prepayments)
Received by the Trust with respect to the 200 Park Avenue
Non-Pooled
Component during the applicable 200 Park Avenue Collection Period;
(b) any Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds with respect to the 200 Park Avenue Non-Pooled Component
Received
by the Trust during the applicable 200 Park Avenue Collection
Period that
were identified and applied by the Master Servicer as recoveries of
principal on the 200 Park Avenue Non-Pooled Component; and
(c) any Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and REO Revenues with respect to any 200 Park Avenue REO
Property
Received by the Trust during the 200 Park Avenue Collection Period
that
were identified and applied by the Master Servicer as recoveries of
principal on the 200 Park Avenue REO Trust Mortgage Loan that are
allocable
under the 200 Park Avenue Co-Lender Agreement to the 200 Park
Avenue
Non-Pooled Component.
"Class ML Purchase Option Event" shall mean, the following
circumstances as of any date of determination: (a) the 200 Park
Avenue Mortgage
Loans constitute Specially Serviced Mortgage Loans; and (b) any
Monthly Payment
under the 200 Park Avenue Loan Combination is at least 60 days
delinquent.
"Class ML Purchase Price" shall mean, with respect to the 200 Park
Avenue Trust Mortgage Loan, in connection with a purchase thereof
by the Class
ML Directing Certificateholder pursuant to Section 3.27, a price
equal to the
sum of, without duplication, the aggregate of (i) the outstanding
principal
balance of the 200 Park Avenue Trust Mortgage Loan, together with
all accrued
and unpaid interest (including the Master Servicing Fee) on the 200
Park Avenue
Trust Mortgage Loan (excluding, however, any such accrued and
unpaid interest
that represents Default Interest), (ii) all other sums (in addition
to principal
and interest) then due and owing under the terms of the 200 Park
Avenue Trust
Mortgage Loan (excluding, however, any such accrued and unpaid
interest that
represents Default Interest), (iii) all expenses (including amounts
incurred by
and owing to the Trustee, the Fiscal Agent, the Master Servicer and
the Special
Servicer, if any) associated with the subject purchase, and (iv)
any amount
relating to the 200 Park Avenue Trust Mortgage Loan in respect of
servicing
compensation, Advances and all interest paid or payable, as the
context may
require, to the Master Servicer or any other party hereunder with
respect to
Advances made with respect to the 200 Park Avenue Loan Combination
by the Master
Servicer or any such other party, at the Reimbursement Rate, which
Advances are,
at the
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time of purchase, payable or reimbursable to the Trustee, the
Fiscal Agent, the
Master Servicer or any other Person under this Agreement.
"Class ML Sub-Account" shall mean a sub-account of the Pool
Custodial
Account established by the Master Servicer pursuant to Section
3.04(a) on behalf
of the Class ML Certificateholders, which shall be entitled "[NAME
OF MASTER
SERVICER], as Master Servicer, in trust for the Class ML
Certificateholders, as
their interests may appear". References herein to Pool Custodial
Account are
intended to include the portion thereof that is the Class ML
Sub-Account.
"Class N Certificate" shall mean any of the Certificates with a
"Class
N" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of Interest-Only Certificates
accrues or is
deemed to accrue interest from time to time. As of any date of
determination,
the Class Notional Amount of each Class of Interest-Only
Certificates shall
equal the then aggregate of the Component Notional Amounts of all
the REMIC III
Components of such Class of Interest-Only Certificates; provided
that, for
reporting purposes, the Class Notional Amount of the Class X-CP
Certificates
shall be calculated in accordance with the Prospectus Supplement.
"Class P Certificate" shall mean any of the Certificates with a
"Class
P" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal
balance
outstanding from time to time of any Class of Principal Balance
Certificates. As
of the Closing Date, the Class Principal Balance of each Class of
Principal
Balance Certificates shall equal the Original Class Principal
Balance thereof.
On each Distribution Date, the Class Principal Balance of each
Class of
Principal Balance Certificates shall be reduced by the amount of
any
distributions of principal made thereon on such Distribution Date
pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced
(subject to
Section 4.05) by the amount of any Realized Losses and Additional
Trust Fund
Expenses deemed allocated thereto on such Distribution Date
pursuant to Section
4.04. On each Distribution Date, the Class Principal Balance of
each Class of
Principal Balance Certificates shall be increased by the related
Class Principal
Reinstatement Amount, if any, for such Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned
thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a
"Class
Q" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the
form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in REMIC I for purposes of the REMIC
Provisions.
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"Class R-II Certificate" shall mean any of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the
form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in REMIC II for purposes of the REMIC
Provisions.
"Class R-III Certificate" shall mean any of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the
form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in REMIC III for purposes of the REMIC
Provisions.
"Class R-LR Certificate" shall mean, subject to Section 2.06(b),
any
of the Certificates with a "Class R-LR" designation on the face
thereof,
substantially in the form of Exhibit A-6 attached hereto, and
evidencing a
portion of the sole class of "residual interests" in each Loan
REMIC for
purposes of the REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a
"Class
S" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with a
"Class
T" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a portion of a class of "regular
interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean, subject to Section 2.05(b), any
of
the Certificates with a "Class V" designation on the face thereof,
substantially
in the form of Exhibit A-7 attached hereto, and evidencing a pro
rata undivided
interest in the Grantor Trust Assets.
"Class V Sub-Account" shall mean, subject to Section 2.05(b), a
sub-account of the Collection Account established pursuant to
Section 3.04(b),
which sub-account shall constitute an asset of the Trust Fund and
the Grantor
Trust, but not an asset of any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the Certificates
with a
"Class X-CL" designation on the face thereof, substantially in the
form of
Exhibit A-3 attached hereto, and evidencing a portion of 37
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CBM Certificate" shall mean any one of the Certificates
with
a "Class X-CBM" designation on the face thereof, substantially in
the form of
Exhibit A-3 attached hereto, and evidencing a portion of three
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CBM REMIC III Component" shall mean any of the three
separate
"regular interests" in REMIC III evidenced by the Class X-CBM
Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to
time; and (iii)
has a Component Notional Amount equal to the Uncertificated
Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time
to time. The
Class X-CBM REMIC III Components shall have the following
respective alphabetic
and alphanumeric designations: X-CBM-1; X-CBM-2; and X-CBM-3.
"Class X-CL REMIC III Component" shall mean any of the 37 separate
"regular interests" in REMIC III evidenced by the Class X-CL
Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii)
accrues interest at its Pass-Through Rate in effect from
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time to time; and (iii) has a Component Notional Amount equal to
the
Uncertificated Principal Balance of its Corresponding REMIC II
Regular Interest
outstanding from time to time. The Class X-CL REMIC III Components
shall have
the following respective alphabetic and alphanumeric designations:
X-CL-A-1-1;
X-CL-A-1-2; X-CL-A-2-1; X-CL-A-2-2; X-CL-A-2-3; X-CL-A-3-1;
X-CL-A-3-2;
X-CL-A-3-3; X-CL-A-4-1; X-CL-A-4-2; X-CL-A-AB-1; X-CL-A-AB-2;
X-CL-A-5-1;
X-CL-A-5-2; X-CL-A-M; X-CL-A-J; X-CL-B-1; X-CL-B-2; X-CL-C-1;
X-CL-C-2; X-CL-D;
X-CL-E-1; X-CL-E-2; X-CL-F; X-CL-G-1; X-CL-G-2; X-CL-H; X-CL-J-1;
X-CL-J-2;
X-CL-K; X-CL-L; X-CL-M; X-CL-N; X-CL-P; X-CL-Q; X-CL-S; and X-CL-T.
"Class X-CP Certificate" shall mean any one of the Certificates
with a
"Class X-CP" designation on the face thereof, substantially in the
form of
Exhibit A-2 attached hereto, and evidencing a portion of 28
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the 28 separate
"regular interests" in REMIC III evidenced by the Class X-CP
Certificates, each
of which: (i) relates to its Corresponding REMIC II Regular
Interest; (ii)
accrues interest at its Pass-Through Rate in effect from time to
time; and (iii)
has a Component Notional Amount equal to the Uncertificated
Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time
to time. The
Class X-CP REMIC III Components shall have the respective
alphabetic and
alphanumeric designations set forth in the definition of "Class
X-CP Termination
Date".
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"Class X-CP Termination Date" shall mean, with respect to any Class
X-CP REMIC III Component, the Distribution Date in the month and
year specified
opposite the alphanumeric designation for such Class X-CP REMIC III
Component in
the following table.
Designation of Class X-CP
Month and Year of Class X-CP
REMIC III Component
Termination Date
-------------------------
----------------------------
X-CP-A-1-2
June 2006
X-CP-A-2-1
June 2006
X-CP-A-2-2
June 2007
X-CP-A-2-3
June 2008
X-CP-A-3-1
June 2008
X-CP-A-3-2
June 2009
X-CP-A-3-3
June 2010
X-CP-A-4-1
June 2010
X-CP-A-4-2
June 2011
X-CP-A-AB-1
June 2010
X-CP-A-AB-2
June 2011
X-CP-A-5-1
June 2011
X-CP-A-5-2
June 2012
X-CP-A-M
June 2012
X-CP-A-J
June 2012
X-CP-B-1
June 2011
X-CP-B-2
June 2012
X-CP-C-1
June 2010
X-CP-C-2
June 2011
X-CP-D
June 2010
X-CP-E-1
June 2009
X-CP-E-2
June 2010
X-CP-F
June 2009
X-CP-G-1
June 2008
X-CP-G-2
June 2009
X-CP-H
June 2008
X-CP-J-1
June 2007
X-CP-J-2
June 2008
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean June 30, 2005.
"CMSA" shall mean 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
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bonds and the commercial mortgage loans and foreclosed properties
underlying or
backing them to investors holding or owning such certificates or
bonds, and any
successor to such other association or organization. If an
organization or
association described in one of the preceding sentences of this
definition does
not exist, "CMSA" shall be deemed to refer to such other
association or
organization as shall be selected by the Master Servicer and
reasonably
acceptable to the Trustee, the Special Servicer and the Controlling
Class
Representative.
"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the
downloadable form
of the "Advance Recovery Report" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information as may from
time to time be approved by the CMSA for commercial mortgage
securities
transactions generally.
"CMSA Bond Level File" shall mean 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 approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean 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
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean 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 approved by the CMSA
for commercial
mortgage securities transactions generally.
"CMSA Delinquent Loan Status Report" shall mean 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 approved
by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean 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 approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report" shall mean 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 approved
by the CMSA for commercial mortgage securities transactions
generally.
-36-
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report"
shall mean a report substantially in the form of, and containing
the information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six 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;
(b) the following ten supplemental reports: (i) CMSA Delinquent
Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report,
(iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report,
(vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch
List, (viii)
CMSA Advance Recovery Report, (ix) CMSA Loan Level Reserve/LOC
Report and
(x) CMSA NOI Adjustment Worksheet; and
(c) such other reports as the CMSA may approve from time to time as
being part of the CMSA Investor Reporting Package for commercial
mortgage
securitization trusts generally and as are reasonably acceptable to
the
Master Servicer.
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Loan Periodic Update File" shall mean 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 approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Loan Setup File" shall mean 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 approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Mortgage Loans,
and by the
Special Servicer with respect to Specially Serviced Mortgage Loans
and REO
Mortgage Loans, which report shall be substantially in the form of,
and contain
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
-37-
presentation of such information and containing such additional
information as
may from time to time be approved by the CMSA for commercial
mortgage securities
transactions generally.
"CMSA Operating Statement Analysis Report" shall mean 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 approved by the CMSA for commercial mortgage-backed
securities
transactions generally.
"CMSA Property File" shall mean 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 approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean 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 approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean 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 approved by
the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean 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" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and
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 Certificates.
"Co-Lender Agreement" shall mean, with respect to any Loan
Combination, the co-lender agreement governing the relative rights
of the
respective holders of the Mortgage Loans comprising such Loan
Combination. The
Co-Lender Agreements consist of the 101 Avenue of the Americas
Co-Lender
Agreement, the 200 Park Avenue Co-Lender Agreement, the Courtyard
by Marriott
Co-Lender Agreement and the A/B Co-Lender Agreements.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b),
which shall
be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the
registered holders
of LB-UBS Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through
Certificates, Series 2005-C3".
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"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination
Collection
Period with respect to each Loan Combination and all related
matters, and (ii)
the Trust Collection Period with respect to the Mortgage Pool
(exclusive of
those Trust Mortgage Loans and any REO Trust Mortgage Loans that
are part of a
Loan Combination) and all related matters.
"Combination Trust Mortgage Loan" shall mean any Trust Mortgage
Loan
that constitutes part of a Loan Combination. The Combination Trust
Mortgage
Loans are the 101 Avenue of the Americas Trust Mortgage Loan, the
200 Park
Avenue Trust Mortgage Loan, the Courtyard by Marriott Trust
Mortgage Loan and
the Note A Trust Mortgage Loans.
"Commission" shall mean the Securities and Exchange Commission or
any
successor agency.
"Component Notional Amount" shall mean the notional amount on which
any REMIC III Component of any 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" shall mean all cash amounts Received by the
Trust 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,
subject, however, to the rights of any tenants and ground lessors,
as the case
may be, and the terms of the related Mortgage.
"Consent Period" shall mean, with respect to any Loan Combination:
(a)
other than as provided under clause (b) of this definition, ten
(10) Business
Days; and (b) solely with respect to the 200 Park Avenue Loan
Combination and
the Courtyard by Marriott Loan Combination, if and for so long as
the "Directing
Lender" under the related Co-Lender Agreement is the "Majority
Senior Lenders"
(as defined under the related Co-Lender Agreement), thirty (30)
days.
"Controlling Class" shall mean, as of any date of determination,
the
then most subordinate (based on the payment priorities set forth in
Sections
4.01(a) and 4.01(b)) outstanding Class of Principal Balance
Certificates (other
than the Class ML-1, Class ML-2, Class CBM-1, Class CBM-2 and Class
CBM-3
Certificates) that has a Class Principal Balance that is at least
equal to 25%
of the Original Class Principal Balance of such Class; provided
that if no such
Class of Principal Balance Certificates has as of such date of
determination a
Class Principal Balance that is at least equal to 25% of its
Original Class
Principal Balance, then the Controlling Class shall be the then
most subordinate
(based on the payment priorities set forth in Sections 4.01(a) and
4.01(b))
outstanding Class of Principal Balance Certificates (other than the
Class ML-1,
Class ML-2, Class CBM-1, Class CBM-2 and Class CBM-3 Certificates)
that has a
Class Principal Balance greater than zero; and provided, further,
that, for
purposes of determining, and exercising the rights of, the
Controlling Class,
all of the Senior Class A Certificates shall be deemed to
constitute a single
Class of Certificates.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
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"Controlling Class Representative Confirmation" shall have the
meaning
assigned thereto in Section 6.09(b).
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust
business with respect to this Agreement shall be administered,
which office at
the date of the execution of this Agreement is located at 135 South
LaSalle
Street, Suite 1625, Chicago, Illinois 60603, Attention: Global
Securities and
Trust Services Group -- LB-UBS Commercial Mortgage Trust 2005-C3.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had
been a
Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the
related
Mortgaged Property's becoming an REO Property).
"Corrected Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes a Corrected Mortgage Loan.
"Corresponding REMIC II Regular Interest" shall mean: (a) with
respect
to any Class of Principal Balance Certificates, the REMIC II
Regular Interest
that has an alphabetic or alphanumeric, as applicable, designation
that is the
same as the alphabetic or alphanumeric, as the case may be,
designation for such
Class of Principal Balance Certificates (provided that each REMIC
II Regular
Interest with an alphanumeric designation that begins "A-1-" shall
be a
Corresponding REMIC II Regular Interest with respect to the Class
A-1
Certificates, each REMIC II Regular Interest with an alphanumeric
designation
that begins "A-2-" shall be a Corresponding REMIC II Regular
Interest with
respect to the Class A-2 Certificates, each REMIC II Regular
Interest with an
alphanumeric designation that begins "A-3-" shall be a
Corresponding REMIC II
Regular Interest with respect to the Class A-3 Certificates, each
REMIC II
Regular Interest with an alphanumeric designation that begins
"A-4-" shall be a
Corresponding REMIC II Regular Interest with respect to the Class
A-4
Certificates, each REMIC II Regular Interest with an alphanumeric
designation
that begins "A-AB-" shall be a Corresponding REMIC II Regular
Interest with
respect to the Class A-AB Certificates, each REMIC II Regular
Interest with an
alphanumeric designation that begins "A-5-" shall be a
Corresponding REMIC II
Regular Interest with respect to the Class A-5 Certificates, each
REMIC II
Regular Interest with an alphanumeric designation that begins "B-"
shall be a
Corresponding REMIC II Regular Interest with respect to the Class B
Certificates, each REMIC II Regular Interest with an alphanumeric
designation
that begins "C-" shall be a Corresponding REMIC II Regular Interest
with respect
to the Class C Certificates, each REMIC II Regular Interest with an
alphanumeric
designation that begins "E-" shall be a Corresponding REMIC II
Regular Interest
with respect to the Class E Certificates, and each REMIC II Regular
Interest
with an alphanumeric designation that begins "G-" shall be a
Corresponding REMIC
II Regular Interest with respect to the Class G Certificates, and
each REMIC II
Regular Interest with an alphanumeric designation that begins "J-"
shall be a
Corresponding REMIC II Regular Interest with respect to the Class J
Certificates); (b) with respect to any Class X-CL REMIC III
Component, the REMIC
II Regular Interest that has an alphabetic or alphanumeric, as
applicable,
designation that, when preceded by "X-CL-", is the same as the
alphabetic or
alphanumeric, as the case may be, designation for such Class X-CL
REMIC III
Component; (c) with respect to any Class X-CP REMIC III Component,
the REMIC II
Regular Interest that has an alphabetic or alphanumeric, as
applicable,
designation that, when preceded by "X-CP-", is the same as the
alphabetic or
alphanumeric, as the case may be, designation for such Class X-CP
REMIC III
Component; and (d) with respect to any Class X-CBM REMIC III
Component,
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the REMIC II Regular Interest that has an alphabetic or
alphanumeric, as
applicable, designation that, when preceded by "X-", is the same as
the
alphabetic or alphanumeric, as the case may be, designation for
such Class X-CBM
REMIC III Component.
"Corresponding Class X-CP REMIC III Component" shall mean, with
respect to any Class X-CL REMIC III Component, any Class X-CP REMIC
III
Component that has the same Corresponding REMIC II Regular Interest
as such
Class X-CL REMIC III Component. If the Corresponding REMIC II
Regular Interest
for any Class X-CL REMIC III Component is not also a Corresponding
REMIC II
Regular Interest for a Class X-CP REMIC III Component, then such
Class X-CL
REMIC III Component shall not have a Corresponding Class X-CP REMIC
III
Component.
"Courtyard by Marriott Change of Control Event" shall mean the
event
that occurs when: (a) the aggregate outstanding principal amount of
the
Courtyard by Marriott Note B Non-Trust Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto (net of any existing Appraisal
Reduction
Amount with respect to the Courtyard by Marriott Loan Combination)
is less than
27.5% of an amount equal to the original aggregate principal amount
of the
Courtyard by Marriott Note B Non-Trust Mortgage Loan; and (b) the
Courtyard by
Marriott Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with
respect thereto has not been repaid in full.
"Courtyard by Marriott Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Collection Period" shall mean, with respect
to
any Courtyard by Marriott Master Servicer Remittance Date, any
Trust Master
Servicer Remittance Date or any Distribution Date, the period
commencing on the
day immediately following the Courtyard by Marriott Determination
Date in the
calendar month preceding the calendar month in which such Courtyard
by Marriott
Master Servicer Remittance Date, such Trust Master Servicer
Remittance Date or
such Distribution Date, as the case may be, occurs (or, in the case
of each of
the initial Courtyard by Marriott Master Servicer Remittance Date,
the initial
Trust Master Servicer Remittance Date and the initial Distribution
Date,
commencing immediately following the Cut-off Date) and ending on
and including
the Courtyard by Marriott Determination Date in the calendar month
in which such
Courtyard by Marriott Master Servicer Remittance Date, such Trust
Master
Servicer Remittance Date or such Distribution Date, as the case may
be, occurs.
"Courtyard by Marriott Controlling Party" shall mean the Courtyard
by
Marriott Directing Lender or any representative appointed thereby,
consistent
with Section 3.02(d) of the Courtyard by Marriott Co-Lender
Agreement, to
exercise the rights and powers of the Courtyard by Marriott
Directing Lender
under the Courtyard by Marriott Co-Lender Agreement or this
Agreement. For as
long as a Courtyard by Marriott Change of Control Event exists, the
representative, appointed in accordance with Section 3.02(d) of the
Courtyard by
Marriott Co-Lender Agreement and pursuant to Section 6.12(d) of
this Agreement,
(i) of the Courtyard by Marriott Directing Lender, during a Class
CBM Control
Period, shall be the Class CBM Directing Certificateholder, and
(ii) of the
holder of the Courtyard by Marriott Mortgage Loan, with respect to
matters
relating to the Courtyard by Marriott Directing Lender, when a
Class CBM Control
Period is not in effect, shall be the Controlling Class
Representative.
"Courtyard by Marriott Cure Rights" shall mean the cure rights
granted
to the Courtyard by Marriott Note B Non-Trust Mortgage Loan
Noteholder and,
following and during the continuance of
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a Courtyard by Marriott Change of Control Event, the holder of the
Mortgage Note
for the Courtyard by Marriott Trust Mortgage Loan, respectively,
under Article
VII of the Courtyard by Marriott Co-Lender Agreement. The
representative of the
Trust, as holder of the Mortgage Note for the Courtyard by Marriott
Trust
Mortgage Loan, with respect to the exercise of the Courtyard by
Marriott Cure
Rights (if and to the extent it is permitted to exercise such
rights under the
Courtyard by Marriott Co-Lender Agreement), appointed in accordance
with Section
6.13 of the Courtyard by Marriott Co-Lender Agreement and pursuant
to Section
3.28 of this Agreement, shall be the Class CBM Directing
Certificateholder.
"Courtyard by Marriott Custodial Account" shall mean the Loan
Combination Custodial Account created and maintained by the Master
Servicer
pursuant to Section 3.04A on behalf of the Courtyard by Marriott
Noteholders,
which shall be entitled "[NAME OF MASTER SERVICER], as Master
Servicer, in trust
for [NAME OF COURTYARD BY MARRIOTT NOTEHOLDERS], as their interests
may appear".
"Courtyard by Marriott Determination Date" shall mean the
"Determination Date" under the Courtyard by Marriott Co-Lender
Agreement.
"Courtyard by Marriott Directing Lender" shall mean, as of any date
of
determination, the "Directing Lender" under the Courtyard by
Marriott Co-Lender
Agreement.
"Courtyard by Marriott Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Loan Component A-1-A" shall have the meaning
assigned thereto in the Preliminary Statement (and is identified as
"Component
A-1-A" under the related loan agreement); provided that the
Courtyard by
Marriott Loan Component A-1-A shall continue to exist with respect
to any
Courtyard by Marriott REO Trust Mortgage Loan in accordance with
the terms of
the related loan documents and without regard to the fact that the
Courtyard by
Marriott Mortgaged Property has become an REO Property.
"Courtyard by Marriott Loan Component A-1-B" shall have the meaning
assigned thereto in the Preliminary Statement (and is identified as
"Component
A-1-B" under the related loan agreement); provided that the
Courtyard by
Marriott Loan Component A-1-B shall continue to exist with respect
to any
Courtyard by Marriott REO Trust Mortgage Loan in accordance with
the terms of
the related loan documents and without regard to the fact that the
Courtyard by
Marriott Mortgaged Property has become an REO Property.
"Courtyard by Marriott Loan Components" shall have the meaning
assigned thereto in the Preliminary Statement; provided that the
Courtyard by
Marriott Loan Components shall continue to exist with respect to
any Courtyard
by Marriott REO Trust Mortgage Loan in accordance with the terms of
the related
loan documents and without regard to the fact that the Courtyard by
Marriott
Mortgaged Property has become an REO Property.
"Courtyard by Marriott Master Servicer Remittance Date" shall mean
the
"Remittance Date" under the Courtyard by Marriott Co-Lender
Agreement.
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"Courtyard by Marriott Mortgage Loan" shall mean the Courtyard by
Marriott Trust Mortgage Loan or a Courtyard by Marriott Non-Trust
Mortgage Loan,
as applicable.
"Courtyard by Marriott Mortgaged Property" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Non-Pooled Loan Component" shall mean the
Courtyard by Marriott Loan Component A-1-B.
"Courtyard by Marriott Non-Trust Mortgage Loan Noteholder" shall
mean
the holder (or, if applicable, the collective holders) of the
Mortgage Note for
any Courtyard by Marriott Non-Trust Mortgage Loan.
"Courtyard by Marriott Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note A-2 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note A-2 Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders)
of the
Mortgage Note for the Courtyard by Marriott Note A-2 Non-Trust
Mortgage Loan.
"Courtyard by Marriott Note A-3 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note A-3 Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders)
of the
Mortgage Note for the Courtyard by Marriott Note A-3 Non-Trust
Mortgage Loan.
"Courtyard by Marriott Note B Non-Trust Mortgage Loan" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Note B Non-Trust Mortgage Loan Noteholder"
shall mean the holder (or, if applicable, the collective holders)
of the
Mortgage Note for the Courtyard by Marriott Note B Non-Trust
Mortgage Loan.
"Courtyard by Marriott Noteholders" shall mean the holder of the
Mortgage Note for the Courtyard by Marriott Trust Mortgage Loan,
together with
the Courtyard by Marriott Non-Trust Mortgage Loan Noteholders.
"Courtyard by Marriott Pari Passu Non-Trust Mortgage Loan" shall
have
the meaning assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Pooled Loan Component" shall mean the
Courtyard
by Marriott Loan Component A-1-A.
"Courtyard by Marriott REO Account" shall mean the Loan Combination
REO Account created and maintained by the Special Servicer pursuant
to Section
3.16 on behalf of the Courtyard by
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Marriott Noteholders, which shall be entitled "[NAME OF SPECIAL
SERVICER], as
Special Servicer, in trust for [NAME OF COURTYARD BY MARRIOTT
NOTEHOLDERS], as
their interests may appear".
"Courtyard by Marriott REO Mortgage Loan" shall mean any REO
Mortgage
Loan relating to any Courtyard by Marriott REO Property.
"Courtyard by Marriott REO Property" shall mean the Courtyard by
Marriott Mortgaged Property at such time as it becomes an REO
Property
hereunder.
"Courtyard by Marriott REO Trust Mortgage Loan" shall mean any REO
Trust Mortgage Loan relating to the Courtyard by Marriott REO
Property.
"Courtyard by Marriott Specially Designated Servicing Action" shall
mean, with respect to the Courtyard by Marriott Loan Combination or
any related
REO Property, any of the actions specified in clauses (i) through
(ix) of the
first paragraph of Section 3.02(a) of the Courtyard by Marriott
Co-Lender
Agreement.
"Courtyard by Marriott Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which Trust Mortgage
Loan is
identified on the Trust Mortgage Loan Schedule by loan number 4 and
is, together
with the Courtyard by Marriott Non-Trust Mortgage Loan, secured by
the same
Mortgage on the Courtyard by Marriott Mortgaged Property.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor or the UBS
Mortgage Loan
Seller, as applicable, are otherwise required to pay pursuant to
Section 2.03(d)
or the UBS/Depositor Mortgage Loan Purchase Agreement, (i) if such
Trust
Mortgage Loan has an original principal balance equal to or less
than
$10,000,000, the entire amount of such costs and expenses, but only
in the event
such costs and expenses exceed a threshold of $10,000, and (ii) if
such Trust
Mortgage Loan has an original principal balance greater than
$10,000,000, the
entire amount of such costs and expenses, but only in the event
such costs and
expenses exceed a threshold of $25,000. In the case of each of
clauses (i) and
(ii) above in this definition, in the event the subject costs and
expenses do
not exceed the required threshold stated in the subject clause, the
"Covered
Costs" shall be $0.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan
Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that
is cross-defaulted and cross-collateralized with any other Mortgage
Loan;
provided that none of the Mortgage Loans in a Loan Combination
shall constitute
a Cross-Collateralized Mortgage Loan.
"Cure Rights" shall mean the 200 Park Avenue Cure Rights, the 900
North Michigan Cure Rights and the Courtyard by Marriott Cure
Rights.
"Custodial Account" shall mean the Pool Custodial Account or any
Loan
Combination Custodial Account.
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"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some
or all of the
Mortgage Files, which Person shall not be the Depositor, a Mortgage
Loan Seller
or an Affiliate of the Depositor or a Mortgage Loan Seller. If no
such custodian
has been appointed, or if such custodian has been so appointed but
the Trustee
shall have terminated such appointment, then the Trustee shall be
the Custodian.
"Cut-off Date" shall mean, individually and collectively, as
applicable in the context used: (i) with respect to each Mortgage
Loan that was
originated after June 13, 2005, the related date of origination of
such Mortgage
Loan; and (ii) for every other Mortgage Loan, June 13, 2005.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan,
the outstanding principal balance of such Mortgage Loan as of the
Cut-off Date,
net of all unpaid payments of principal due in respect thereof on
or before such
date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to
the Trust (or,
if applicable, a Non-Trust Mortgage Loan Noteholder) in respect of
any Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean, with respect to any Mortgage Loan
(or
any successor REO Mortgage Loan with respect thereto), any amounts
collected
thereon (other than late payment charges and Prepayment
Consideration) that
represent penalty interest (arising out of a default) in excess of
(i) interest
accrued on the principal balance of such Mortgage Loan (or any
successor REO
Mortgage Loan with respect thereto), at the related Mortgage Rate
(net of any
applicable Additional Interest Rate included as part of such
Mortgage Rate), and
(ii) in the case of an ARD Mortgage Loan (or any successor REO
Trust Mortgage
Loan with respect thereto) after the related Anticipated Repayment
Date, any
Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in
Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to
be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain
a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned
thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that
permits
the related Mortgagor to pledge Defeasance Collateral to the holder
of such
Mortgage Loan in connection with obtaining the release of all or
any portion of
the related Mortgaged Property (or permits the holder of such
Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to
the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
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"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depositor Backup Certification" shall have the meaning assigned
thereto in Section 8.15(j).
"Depository" shall mean 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" shall mean 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.
"Determination Date" shall mean, individually and collectively, as
applicable in the context used, (i) the related Loan Combination
Determination
Date with respect to each Loan Combination and all related matters,
and (ii) the
Trust Determination Date with respect to the Mortgage Pool
(exclusive of those
Trust Mortgage Loans and any REO Trust Mortgage Loans that are part
of a Loan
Combination) and all related matters.
"Directing Certificateholder" shall mean the Class ML Directing
Certificateholder or the Class CBM Directing Certificateholder, as
applicable.
"Directly Operate" shall mean, with respect to any 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 REMIC I (or,
if held
thereby, any related Loan REMIC) other than through an Independent
Contractor;
provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer
on behalf of the Trustee) shall not be considered to Directly
Operate an REO
Property solely because the Trustee (or the Special Servicer or any
Sub-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" shall mean, with respect to any prepaid Trust
Mortgage
Loan or REO Trust Mortgage Loan, for purposes of allocating any
Prepayment
Consideration Received by the Trust with respect thereto among the
respective
Classes of the YM Principal Balance Certificates, a rate
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which, when compounded monthly, is equivalent to the Yield
Maintenance Treasury
Rate, when compounded semi-annually.
"Disqualified Non-United States Tax Person" shall mean, with
respect
to any Residual Interest Certificate, any Non-United States Tax
Person or agent
thereof other than: (1) a Non-United States Tax Person that (a)
holds such
Residual Interest 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 Residual Interest
Certificate for United
States federal income tax purposes, it may incur tax liabilities in
excess of
any cash flows generated by such Residual Interest Certificate and
intends to
pay taxes associated with holding such Residual Interest
Certificate, and (c)
has furnished the Transferor and the Trustee 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 and the Certificate
Registrar an
opinion of nationally recognized tax counsel to the effect that (x)
the Transfer
of such Residual Interest Certificate to it is in accordance with
the
requirements of the Code and the regulations promulgated thereunder
and (y) such
Transfer of such Residual Interest Certificate will not be
disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i)
the
United States, any State or any political subdivision thereof, any
foreign
government, international organization, or any agency or
instrumentality of any
of the foregoing; (ii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that 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 income); (iii) rural
electric and
telephone cooperatives described in Section 1381 of the Code; or
(iv) any other
Person so designated by the Trustee or the Tax Administrator based
upon an
Opinion of Counsel that the holding of an Ownership Interest in a
Residual
Interest Certificate by such Person may cause the Trust Fund or any
Person
having an Ownership Interest in any Class of Certificates, other
than such
Person, to incur a liability for any federal tax imposed under the
Code that
would not otherwise be imposed but for the Transfer of an Ownership
Interest in
a Residual Interest 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" shall mean 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" shall mean, with respect to
any
Class of Regular Interest Certificates for any Distribution Date,
subject to
Section 4.05(b), an amount of interest equal to (a) the amount of
Accrued
Certificate Interest in respect of such Class of Certificates for
the related
Interest Accrual Period, reduced (to not less than zero) by (b)
that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such
Distribution
Date allocated to such Class of Certificates as provided below. For
purposes of
the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each
Distribution Date shall be allocated:
(i) to each Class of the Class ML Certificates, in an amount equal
to
the lesser of (A) the amount of Accrued Certificate Interest with
respect
to such Class of Class ML Certificates for the related Interest
Accrual
Period and (B) the product of (1) the entire amount, if any, of
such Net
Aggregate Prepayment Interest Shortfall that is attributable to the
200
Park Avenue
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Trust Mortgage Loan, multiplied by (2) a fraction (not greater than
one or
less than zero), the numerator of which is equal to the amount of
Accrued
Certificate Interest with respect to such Class of Class ML
Certificates
for the related Interest Accrual Period, and the denominator of
which is
the aggregate amount of Accrued Certificate Interest with respect
to all of
the Class ML Certificates for the related Interest Accrual Period,
multiplied by (3) a fraction (not greater than one or less than
zero), the
numerator of which is the portion of the applicable principal
prepayment or
other early collection of principal on the 200 Park Avenue Trust
Mortgage
Loan that is included in the Class ML Principal Distribution Amount
for
such Distribution Date, and the denominator of which is the entire
amount
of such principal prepayment or other early collection of principal
on the
200 Park Avenue Trust Mortgage Loan;
(ii) to each Class of the Class CBM Certificates, in an amount
equal
to the lesser of (A) the amount of Accrued Certificate Interest
with
respect to such Class of Class CBM Certificates for the related
Interest
Accrual Period and (B) the product of (1) the entire amount, if
any, of
such Net Aggregate Prepayment Interest Shortfall that is
attributable to
the Courtyard by Marriott Trust Mortgage Loan, multiplied by (2) a
fraction
(not greater than one or less than zero), the numerator of which is
equal
to the amount of Accrued Certificate Interest with respect to such
Class of
Class CBM Certificates for the related Interest Accrual Period, and
the
denominator of which is the aggregate amount of Accrued Certificate
Interest with respect to all of the Class CBM Certificates for the
related
Interest Accrual Period, multiplied by (3) a fraction (not greater
than one
or less than zero), the numerator of which is the portion of the
applicable
principal prepayment or other early collection of principal on the
Courtyard by Marriott Trust Mortgage Loan that is included in the
Class CBM
Principal Distribution Amount for such Distribution Date, and the
denominator of which is the entire amount of such principal
prepayment or
other early collection of principal on the Courtyard by Marriott
Trust
Mortgage Loan; and
(iii) to each other Class of Regular Interest Certificates, in an
amount equal to the lesser of (A) the amount of Accrued Certificate
Interest with respect to the subject Class of Regular Interest
Certificates
for the related Interest Accrual Period and (B) the product of (1)
the
entire amount of such Net Aggregate Prepayment Interest Shortfall
(exclusive of any portion thereof that is allocable to the Class
CBM
Certificates and/or the Class ML Certificates), multiplied by (2) a
fraction, the numerator of which is equal to the amount of Accrued
Certificate Interest with respect to the subject Class of Regular
Interest
Certificates for the related Interest Accrual Period, and the
denominator
of which is equal to the aggregate amount of Accrued Certificate
Interest
with respect to all the Classes of Regular Interest Certificates
(exclusive
of the Class CBM Certificates and the Class ML Certificates) for
the
related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of any Class of Interest-Only Certificates for
any
Distribution Date, subject to Section 4.05(b), an amount of
interest equal to
(a) the amount of Accrued Component Interest in respect of such
REMIC III
Component for the related Interest Accrual Period, reduced (to not
less than
zero) by (b) the product of (i) the entire portion of any Net
Aggregate
Prepayment Interest Shortfall for such Distribution Date that was
allocated to
such Class of Interest-Only Certificates in accordance with the
definition of
"Distributable Certificate Interest", multiplied by (ii) a
fraction, the
numerator of which is the amount of any Accrued Component Interest
in respect of
such REMIC III Component for the related Interest
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Accrual Period, and the denominator of which is the amount of the
Accrued
Certificate Interest in respect of such Class of Interest-Only
Certificates for
the related Interest Accrual Period.
"Distribution Date" shall mean the date each month, commencing in
July
2005, on which, among other things, the Trustee is to make
distributions on the
Certificates, which date shall be the fourth Business Day following
the Trust
Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned
thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section
2.03(a).
"Due Date" shall mean: (i) with respect to 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) with respect to 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) with respect to 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.
"Early Defeasance Trust Mortgage Loan" shall mean, subject to
Section
2.06(b), any Trust Mortgage Loan that provides the related
Mortgagor with the
option to defease such Trust Mortgage Loan in its entirety prior to
the second
anniversary of the Closing Date. The Early Defeasance Trust
Mortgage Loans, if
any, are identified on Schedule VII hereto. If Schedule VII hereto
does not
identify any Trust Mortgage Loan as an Early Defeasance Trust
Mortgage Loan,
then Section 2.06(b) shall apply.
"EDGAR" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained
with a
federal or state chartered depository institution or trust company,
the
long-term deposit or unsecured debt obligations of which are rated
at least
"Aa3" by Moody's, at least "AA-" (or, if such depository
institution or trust
company has short-term unsecured debt obligations rated at least
"A-1" by S&P,
at least "A-") by S&P and, if applicable, at least "AA-" by
Fitch (or, in the
case of either Rating Agency (or, if applicable, Fitch), such lower
rating as
will not result in an Adverse Rating Event with respect to any
Class of
Certificates (or, in the case of an account that relates solely to
a Loan
Combination that includes a Securitized Pari Passu Non-Trust
Mortgage Loan, with
respect to any Class of Certificates or any class of related Pari
Passu
Non-Trust Mortgage Loan Securities) that is rated by such Rating
Agency (or, if
applicable, by Fitch), as evidenced in writing by such Rating
Agency (or, if
applicable, by Fitch)) at any time funds are on deposit therein (if
such funds
are to be held for more than 30 days), or the short-term deposits
of which are
rated at least "P-1" by Moody's, at least "A-1" by S&P and, if
applicable, at
least "F-1" by Fitch (or, in the case of either Rating Agency (or,
if
applicable, Fitch), such lower rating as will not result in an
Adverse Rating
Event with respect to any Class of Certificates (or, in the case of
an account
that relates solely to a Loan Combination that includes a
Securitized Pari Passu
Non-Trust Mortgage Loan, with respect to any Class of Certificates
or any class
of related Pari Passu Non-Trust Mortgage Loan Securities) that is
rated by such
Rating Agency (or, if applicable, by Fitch), as evidenced in
writing by such
Rating Agency (or, if applicable, by Fitch)) at any time funds are
on deposit
therein (if such funds are to be held for 30 days or less); or (ii)
a segregated
trust account maintained with the
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trust department of a federal or state chartered depository
institution or trust
company acting in its fiduciary capacity (which may be the
Trustee), which has a
combined capital and surplus of at least $50,000,000, is subject to
supervision
or examination by federal or state authority and, in the case of a
state
chartered depository institution or trust company, is subject to
regulations
regarding fiduciary funds on deposit therein substantially similar
to 12 CFR
Section 9.10(b); or (iii) any other account, the use of which would
not, in and
of itself, cause an Adverse Rating Event with respect to any Class
of
Certificates (or, in the case of an account that relates solely to
a Loan
Combination that includes a Securitized Pari Passu Non-Trust
Mortgage Loan, with
respect to any Class of Certificates or any class of related Pari
Passu
Non-Trust Mortgage Loan Securities) that is rated by either Rating
Agency (or,
if applicable, Fitch), as evidenced in writing by such Rating
Agency (or, if
applicable, by Fitch). Notwithstanding anything in this definition
to the
contrary, any rating requirement with respect to Fitch set forth in
this
definition shall only be required if any class of Pari Passu
Non-Trust Mortgage
Loan Securities is rated by Fitch.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie
Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments,
each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering
pollution
conditions and/or other environmental conditions that is maintained
from time to
time in respect of such Mortgaged Property or REO Property, as the
case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans
identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor
for
application toward the payment of real estate taxes, assessments,
insurance
premiums, ground rents (if applicable) and other items for which an
escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section
7.01(a).
"Excess Defeasance Deposit Proceeds" shall mean, with respect to an
Early Defeasance Trust Mortgage Loan for which the related
Mortgagor has
exercised its option to defease such Trust Mortgage Loan prior to
the second
anniversary of the Closing Date, subject to Section 2.06(b), the
excess, if any,
of any cash amount tendered by such Mortgagor in order to purchase
Defeasance
Collateral or other permitted collateral for purposes of defeasing
such Trust
Mortgage Loan in accordance with the related loan documents, over
an amount
equal to, with respect to such Trust Mortgage Loan, the aggregate
of the amounts
specified in clauses (a) through (e) of the definition of "Purchase
Price" in
this Agreement.
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"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a
Specially
Serviced Trust Mortgage Loan or an REO Property, net of (i)
interest on any
related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee
payable from such Net Liquidation Proceeds, and (iv) in the case of
a Trust
Mortgage Loan that is part of, or an REO Property that relates to,
a Loan
Combination, the portion of such Net Liquidation Proceeds payable
to the related
Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the
subject Trust Mortgage Loan or the related REO Trust Mortgage Loan,
as
applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the
Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d)
in trust for
the Certificateholders, which shall be entitled "[NAME OF TRUSTEE],
as Trustee,
in trust for the registered holders of LB-UBS Commercial Mortgage
Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3".
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Lehman Brothers,
(ii)
any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with Lehman
Brothers, and
(iii) any member of any underwriting syndicate or selling group of
which any
Person described in clauses (i) and (ii) is a manager or co-manager
with respect
to a Class of Investment Grade Certificates.
"Fannie Mae" shall mean the Federal National Mortgage Association
or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing
of Financial
Assets and Extinguishment of Liabilities", issued in September
2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or
any
successor.
"Final Distribution Date" shall mean 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" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage
Loan or REO
Property that there has been a recovery of all Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special
Servicer has determined, in accordance with the Servicing Standard,
will be
ultimately recoverable; provided that the term "Final Recovery
Determination"
shall not apply to: (i) a Specially Serviced Mortgage Loan that was
paid in
full; or (ii) a Specially Serviced Trust Mortgage Loan or REO
Property, as the
case may be, that was the subject of a Permitted Purchase.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein
provided.
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"Fitch" shall mean Fitch, Inc. or its successor in interest.
"FV Bid" shall have the meaning assigned thereto in Section
3.18(d).
"FV Price" shall have the meaning assigned thereto in Section
3.18(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"General Special Servicer" shall have the meaning assigned thereto
in
Section 7.01(e).
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule
144A Global
Certificate or any related Regulation S Global Certificate.
"Government Securities" shall mean "Government Securities" as
defined
in Section 2(a)(16) of the Investment Company Act of 1940,
excluding any such
securities that are not acceptable to either Rating Agency as
Defeasance
Collateral.
"Grantor Trust" shall mean, subject to Section 2.05(b), that
certain
"grantor trust" (within the meaning of the Grantor Trust
Provisions) consisting
of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean, subject to Section 2.05(b), any
collections of Additional Interest Received by the Trust with
respect to any ARD
Trust Mortgage Loans and any successor REO Trust Mortgage Loans
with respect
thereto.
"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which
the related Mortgagor has a leasehold interest in the related
Mortgaged
Property, the lease agreement(s) (including any lease agreement
with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean 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,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the
Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer,
each
Controlling Class Certificateholder, each Holder of a Class ML or
Class CBM
Certificate, each Non-Trust Mortgage Loan Noteholder and any and
all Affiliates
thereof, (ii) does not
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have any direct financial interest in or any material indirect
financial
interest in any of the Depositor, any Mortgage Loan Seller, the
Master Servicer,
the Special Servicer, any Controlling Class Certificateholder, any
Holder of a
Class ML or Class CBM Certificate, any Non-Trust Mortgage Loan
Noteholder, or
any Affiliate thereof, and (iii) is not connected with the
Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Controlling
Class Certificateholder, any Holder of a Class ML or Class CBM
Certificate, any
Non-Trust Mortgage Loan Noteholder 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, a Mortgage Loan Seller, the Master
Servicer, the
Special Servicer, a Controlling Class Certificateholder, a Holder
of a Class ML
or Class CBM Certificate, a Non-Trust Mortgage Loan Noteholder 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 Mortgage Loan
Seller, the
Master Servicer, the Special Servicer, such Controlling Class
Certificateholder,
such Holder of a Class ML or Class CBM Certificate, such Non-Trust
Mortgage Loan
Noteholder or any Affiliate thereof, as the case may be; provided
that such
ownership constitutes less than 1% of the total assets owned by
such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the
Appraisal
Institute, (ii) if the state in which the subject Mortgaged
Property is located
certifies or licenses appraisers, is certified or licensed in such
state, and
(iii) has a minimum of five years experience in the subject
property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be
an
"independent contractor" with respect to REMIC I (or, solely for
purposes of an
Early Defeasance Trust Mortgage Loan or any corresponding REO
Property, any
related Loan REMIC) 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 percent or more of any Class of
Certificates, or such
other interest in any Class of Certificates as is set forth in an
Opinion of
Counsel, which shall be at no expense to the Master Servicer, the
Special
Servicer, the Trustee or the Trust Fund, delivered to the Trustee
(and, if a
Loan Combination is involved, to the related Non-Trust Mortgage
Loan
Noteholder(s)), provided that (i) such REMIC Pool does not receive
or derive any
income from such Person and (ii) the relationship between such
Person and such
REMIC Pool 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 (and,
if a Loan Combination is involved, by the related Non-Trust
Mortgage Loan
Noteholder(s)) of an Opinion of Counsel, which shall be at no
expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, to the
effect that the taking of any action in respect of any REO Property
by such
Person, subject to any conditions therein specified, that is
otherwise herein
contemplated to be taken by an Independent Contractor, will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of
the Code, or
cause any income realized in respect of such REO Property to fail
to qualify as
Rents from Real Property, due to such Person's failure to be
treated as an
Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Deposit" shall mean, with respect to each Initial Deposit
Mortgage Loan, if any, the supplemental payment from the related
Mortgage Loan
Seller identified on Schedule V hereto, in the amount specified for
such Initial
Deposit Mortgage Loan on Schedule V hereto.
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"Initial Deposit Mortgage Loans" shall mean each of the Trust
Mortgage
Loans, if any, identified on Schedule V hereto.
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of all the Trust Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto
in
Section 2.03(a).
"Institutional Accredited Investor" or "IAI" shall mean 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" shall mean, with respect to any Mortgage Loan,
any
hazard insurance policy, flood insurance policy, title policy,
Environmental
Insurance Policy or other insurance policy that is maintained from
time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance
Policy, to the extent such proceeds are not applied to the
restoration of the
related Mortgaged Property, released to the Mortgagor, or any
tenants or ground
lessors, as the case may be, pursuant to the terms of the related
Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto
in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any REO Mortgage Loan, any
Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II
Regular Interest,
any Class of Regular Interest Certificates or any particular REMIC
III Component
of a Class of Interest-Only Certificates, in each case consisting
of one of the
following: (i) a 360-day year consisting of twelve 30-day months;
(ii) actual
number of days elapsed in a 360-day year; (iii) actual number of
days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual
calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean, with respect to any
Distribution
Date, the period commencing on the 11th calendar day of the month
immediately
preceding the month in which such Distribution Date occurs and
ending on the
10th calendar day of the month in which such Distribution Date
occurs.
"Interest-Only Certificates" shall mean, collectively, the Class
X-CL,
Class X-CP and Class X-CBM Certificates.
"Interested Person" shall mean the Depositor, the Master Servicer,
the
Special Servicer, the Trustee, the Fiscal Agent, any
Certificateholder, or any
Affiliate of any such Person.
"Interest Reserve Account" shall mean the segregated account or
accounts (or the segregated sub-account of the Collection Account)
created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as
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Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust
2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for
any
Distribution Date that occurs during February of 2006 or February
of any year
thereafter or that occurs 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 Mortgage Rate (net of the related Additional
Interest
Rate, in the case of an ARD Trust Mortgage Loan or any successor
REO Trust
Mortgage Loan with respect thereto after the related Anticipated
Repayment Date)
on the related Stated Principal Balance as of the Due Date in the
month in which
such Distribution Date occurs (but prior to the application of any
amounts due
on such Due Date), to the extent that a Monthly Payment or an
Assumed Monthly
Payment, as applicable, is Received by the Trust in respect thereof
for such Due
Date as of the related Determination Date or a P&I Advance is
made under this
Agreement in respect thereof for such Due Date by such Distribution
Date;
provided that, in the case of a Split Trust Mortgage Loan or any
successor REO
Trust Mortgage Loan with respect thereto, the Interest Reserve
Amount shall be
calculated based on the related Stated Principal Balance of, and be
solely
allocable to, the related Pooled Loan Component only.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust
Mortgage
Loan as to which the predecessor Trust Mortgage Loan was an
Interest Reserve
Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, 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.
"Investment Period" shall mean: (a) with respect to any investment
of
funds in any Master Servicer Account (other than a Custodial
Account) or any REO
Account, the period that ends at the close of business (New York
City time) on
each Trust Determination Date (or, if the subject Investment
Account relates
solely to a Loan Combination, on each related Loan Combination
Determination
Date) and commences immediately following the end of the prior such
period (or,
in the case of the first such period, commences on the Closing
Date); (b) with
respect to any investment of funds in the Pool Custodial Account,
the Interest
Reserve Account or the Excess Liquidation Proceeds Account, the
period that ends
at the close of business (New York City time) on the Business Day
prior to each
Trust Master Servicer Remittance Date and commences immediately
following the
end of the prior such period (or, in the case of the first such
period,
commences on the Closing Date); (c) with respect to any investment
of funds in
any Loan Combination Custodial Account, the period that ends at the
close of
business (New York City time) on the Business Day prior to each
related Loan
Combination Master Servicer Remittance Date and commences
immediately following
the end of the prior such period (or, in the case of the first such
period,
commences on the Closing Date); and (d) with respect to any
investment of funds
in the Collection Account, the period that ends at the close of
business (New
York City time) on each Trust Master Servicer Remittance Date and
commences
immediately following the end of the prior such period (or, in the
case of the
first such period, commences on the Closing Date); provided that,
if and to the
extent that the depository institution maintaining any REO Account,
Custodial
Account or Trustee Account is the obligor on any investment of
funds in such
Investment
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Account, and if such funds are to be transferred to another
Investment Account
or distributed to Certificateholders or any Non-Trust Mortgage Loan
Noteholder
on the Business Day following the end of any particular Investment
Period
(determined without regard to this proviso) for such investment,
then such
Investment Period shall be deemed extended through such time on
such next
succeeding Business Day when such transfer or distribution is to
occur.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"JER" shall mean J.E. Robert Company, Inc. or its successor in
interest.
"LaSalle" shall mean LaSalle Bank National Association] or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Trust
Mortgage
Loan, all amounts Received by the Trust in connection therewith
during any
related Collection Period, whether as payments, Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late
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
Trust Mortgage
Loan due or deemed due on a Due Date in a previous related
Collection Period, or
on a Due Date coinciding with or preceding the Cut-off Date, and
not previously
recovered; and (b) with respect to any REO Trust Mortgage Loan, all
amounts
Received by the Trust in connection with the related REO Property
during any
related Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent
late
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 Trust Mortgage Loan, or the principal and/or interest
portions of an
Assumed Monthly Payment in respect of such REO Trust Mortgage Loan,
due or
deemed due on a Due Date in a previous related Collection Period
and not
previously recovered.
"LBHI" shall mean Lehman Brothers Holdings Inc. or its successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of June 21, 2005,
between the
LBHI Mortgage Loan Seller and the Depositor.
"LBHI Mortgage Loan Seller" shall mean LBHI.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the LBHI Mortgage Loan Seller to the Depositor,
pursuant to the
LBHI/Depositor Mortgage Loan Purchase Agreement.
"Legal Final Distribution Date" shall mean, with respect to any
Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II
Regular
Interest, any Class of Regular Interest Certificates or any
particular REMIC III
Component of a Class of Interest-Only Certificates, the "latest
possible
maturity date" thereof, calculated solely for purposes of
satisfying Treasury
regulations section 1.860G-1(a)(4)(iii).
"Lehman Brothers" shall mean Lehman Brothers Inc. or its successor
in
interest.
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"Lehman Mortgage Loan Seller" shall mean (i) the LBHI Mortgage Loan
Seller in matters relating to an LBHI Trust Mortgage Loan and (ii)
the LUBS
Mortgage Loan Seller in matters relating to a LUBS Trust Mortgage
Loan.
"Lehman Trust Mortgage Loan" shall mean any LBHI Trust Mortgage
Loan
or LUBS Trust Mortgage Loan, as applicable.
"Liquidation Event" shall mean: (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, or
(iii) in the case of a Trust Mortgage Loan, such Mortgage Loan is
the subject of
a Permitted Purchase; and (b) with respect to any REO Property (and
the related
REO Mortgage Loan(s)), any of the following events--(i) a Final
Recovery
Determination is made with respect to such REO Property, or (ii)
such REO
Property is the subject of a Permitted Purchase.
"Liquidation Expenses" shall mean 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 pursuant to Section 3.09 or in
connection with
the sale of a Specially Serviced Mortgage Loan or an REO Property
in accordance
with Section 3.18, or in connection with the final payoff of a
Corrected
Mortgage Loan (including legal fees and expenses, committee or
referee fees and,
if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain
specified events in
respect of a Specially Serviced Mortgage Loan or an REO Property
pursuant to,
Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation
Fee is payable,
1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues)
Received by the
Trust (or, in the case of a Loan Combination or any related REO
Property,
collected on behalf of the Trust and/or the related Non-Trust
Mortgage Loan
Noteholder(s)) in connection with: (i) the full or partial
liquidation of a
Mortgaged Property or other collateral constituting security for a
defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or
otherwise, exclusive of any portion thereof required to be released
to the
related Mortgagor in accordance with applicable law and the terms
and conditions
of the related Mortgage Note and Mortgage; (ii) the realization
upon any
deficiency judgment obtained against a Mortgagor; (iii) a Permitted
Purchase; or
(iv) except for purposes of Section 3.11(c), the transfer of any
Loss of Value
Payments from the Loss of Value Reserve Fund, or the deposit of any
other
payments contemplated by Section 2.03(d), in any event to the Pool
Custodial
Account.
"Loan Combination" shall mean any group of two or more mortgage
loans,
at least one of which mortgage loans is included in the Trust Fund
and at least
one of which mortgage loans is not included in the Trust Fund, and
all of which
mortgage loans are secured by the same Mortgage(s) on the same
Mortgaged
Property or Properties, as applicable. The Loan Combinations are
the 101 Avenue
of the Americas Loan Combination, the 200 Park Avenue Loan
Combination, the
Courtyard by Marriott Loan Combination and the A/B Loan
Combinations.
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"Loan Combination Change of Control Event" shall mean: (a) with
respect to the Courtyard by Marriott Loan Combination, the
Courtyard by Marriott
Change of Control Event; and (b) with respect to any A/B Loan
Combination, a
related A/B Change of Control Event. There shall not be any Loan
Combination
Change of Control Event with respect to the 101 Avenue of the
Americas Loan
Combination or the 200 Park Avenue Loan Combination.
"Loan Combination Collection Period" shall mean, individually and
collectively, as applicable in the context used, (i) the 200 Park
Avenue
Collection Period with respect to the 200 Park Avenue Loan
Combination and all
related matters, (ii) the Courtyard by Marriott Collection Period
with respect
to the Courtyard by Marriott Loan Combination and all related
matters, and (iii)
the Trust Collection Period with respect to each other Loan
Combination and all
related matters.
"Loan Combination Controlling Party" shall mean: (a) with respect
to
the 101 Avenue of the Americas Loan Combination, the 101 Avenue of
the Americas
Controlling Party; (b) with respect to the 200 Park Avenue Loan
Combination, the
200 Park Avenue Controlling Party; (c) with respect to the
Courtyard by Marriott
Loan Combination, the Courtyard by Marriott Controlling Party; and
(d) with
respect to any A/B Loan Combination, the related A/B Controlling
Party.
"Loan Combination Custodial Account" shall mean, with respect to
each
Loan Combination, the segregated account or accounts created and
maintained by
the Master Servicer pursuant to Section 3.04A on behalf of the
holders of the
Mortgage Loans included in such Loan Combination, which shall be
entitled "[NAME
OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF
RELATED MORTGAGE
NOTEHOLDERS], as their interests may appear".
"Loan Combination Determination Date" shall mean, individually and
collectively, as applicable in the context used, (i) the 200 Park
Avenue
Determination Date with respect to the 200 Park Avenue Loan
Combination and all
related matters, (ii) the Courtyard by Marriott Determination Date
with respect
to the Courtyard by Marriott Loan Combination and all related
matters, and (iii)
the Trust Determination Date with respect to each other Loan
Combination and all
related matters.
"Loan Combination Directing Lender" shall mean: (a) with respect to
the 101 Avenue of the Americas Loan Combination, the 101 Avenue of
the Americas
Directing Lender; (b) with respect to the 200 Park Avenue Loan
Combination, the
200 Park Avenue Directing Lender; (c) with respect to the Courtyard
by Marriott
Loan Combination, the Courtyard by Marriott Directing Lender; and
(d) with
respect to any A/B Loan Combination, the related A/B Directing
Lender.
"Loan Combination Master Servicer Remittance Date" shall mean,
individually and collectively, as applicable in the context used,
(i) the 101
Avenue of the Americas Master Servicer Remittance Date with respect
to the 101
Avenue of the Americas Loan Combination and all related matters,
(ii) the 200
Park Avenue Master Servicer Remittance Date with respect to the 200
Park Avenue
Loan Combination and all related matters, (iii) the Courtyard by
Marriott Master
Servicer Remittance Date with respect to the Courtyard by Marriott
Loan
Combination and all related matters, and (iv) the Trust Master
Servicer
Remittance Date with respect to each other Loan Combination and all
related
matters.
"Loan Combination REO Account" shall mean, with respect to each
Loan
Combination, the segregated account or accounts created and
maintained by the
Special Servicer pursuant to Section 3.16 on behalf of the holders
of the
Mortgage Loans included in such Loan Combination, which shall be
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entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in trust
for [NAMES
OF RELATED MORTGAGE NOTEHOLDERS], as their interests may appear".
"Loan Combination Servicing Reports" shall mean, with respect to
each
Loan Combination, each of the CMSA Delinquent Loan Status Report,
CMSA
Historical Loan Modification and Corrected Mortgage Loan Report,
CMSA Advance
Recovery Report, CMSA Loan Level Reserve/LOC Reserve, CMSA
Historical
Liquidation Report, CMSA REO Status Report, Loan Payoff
Notification Report,
CMSA Loan Periodic Update File, CMSA Property File, CMSA Financial
File, CMSA
Loan Setup File, CMSA Servicer Watch List, CMSA Operating Statement
Analysis,
CMSA NOI Adjustment Worksheet and CMSA Comparative Financial Status
Report, each
as may be modified to reflect the fact that only the related
Mortgaged Property
or Properties or any related REO Property or Properties, as the
case may be,
shall be the subject of such report.
"Loan Combination-Specific Special Servicer" shall have the meaning
assigned thereto in Section 7.01(e).
"Loan Component" shall mean any 200 Park Avenue Loan Component or
Courtyard by Marriott Loan Component.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached
hereto, and
setting forth for each Mortgage Loan as to which written notice of
anticipated
payoff has been received by the Master Servicer as of the related
Determination
Date preceding the delivery of such report, among other things, the
loan number,
the property name, the ending scheduled loan balance for the
related Collection
Period ending on such Determination Date, the expected date of
payment, the
expected related Distribution Date and the estimated amount of the
Prepayment
Consideration due (if any).
"Loan REMIC" shall mean, with respect to any Early Defeasance Trust
Mortgage Loan, subject to Section 2.06(b), the segregated pool of
assets, as to
which a separate REMIC election is to be made, consisting of: (i)
such Trust
Mortgage Loan (for so long as it is subject to this Agreement) and
all payments
under and proceeds of such Trust Mortgage Loan Received by the
Trust after the
Closing Date (other than scheduled payments of interest and
principal due on or
before the Cut-off Date), together with all documents included in
the related
Mortgage File; (ii) any REO Property acquired in respect of such
Trust Mortgage
Loan (for so long as it is subject to this Agreement) and all
income and
proceeds therefrom; (iii) such funds or assets as from time to time
are
deposited in the Pool Custodial Account, the Collection Account,
the Interest
Reserve Account and, if established, the Pool REO Account with
respect to such
Trust Mortgage Loan or any related REO Property; and (iv) insofar
as they relate
to such Trust Mortgage Loan or any related REO Property, the rights
of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement
(but only if
such Trust Mortgage Loan is a UBS Trust Mortgage Loan); provided
that none of
the Loan REMICs shall include (x) any collections of Additional
Interest or (y)
the Loss of Value Reserve Fund or any amounts on deposit therein.
"Loan REMIC Interest" shall mean, subject to Section 2.06(b),
either a
Loan REMIC Regular Interest or a Loan REMIC Residual Interest.
"Loan REMIC Regular Interest" shall mean, subject to Section
2.06(b),
the uncertificated "regular interest" within the meaning of Section
860G(a)(1)
of the Code, in a Loan REMIC.
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"Loan REMIC Remittance Rate" shall mean: (a) with respect to any
Loan
REMIC Regular Interest that, as of the Closing Date, corresponds to
a Trust
Mortgage Loan that accrues interest on a 30/360 Basis, a rate per
annum that is,
for any Interest Accrual Period, equal to (i) the Mortgage Rate in
effect for
such corresponding Trust Mortgage Loan as of the Closing Date
(without regard to
any modifications, extensions, waivers or amendments of such
corresponding Trust
Mortgage Loan subsequent to the Closing Date), minus (ii) the
Administrative
Cost Rate for such corresponding Trust Mortgage Loan (or any
successor REO Trust
Mortgage Loan with respect thereto); and (b) with respect to any
Loan REMIC
Regular Interest that, as of the Closing Date, corresponds to a
Trust Mortgage
Loan that accrues interest on an Actual/360 Basis, a rate per annum
that is, for
any Interest Accrual Period, equal to (i) a fraction (expressed as
a
percentage), the numerator of which is the product of 12 times the
Adjusted
Actual/360 Accrued Interest Amount with respect to such Loan REMIC
Regular
Interest for such Interest Accrual Period, and the denominator of
which is the
Uncertificated Principal Balance of such Loan REMIC Regular
Interest immediately
prior to the Distribution Date that corresponds to such Interest
Accrual Period,
minus (ii) the Administrative Cost Rate for the corresponding Trust
Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect
thereto).
"Loan REMIC Residual Interest" shall mean, subject to Section
2.06(b),
the sole uncertificated "residual interest", within the meaning of
Section
860G(a)(2) of the Code, in each Loan REMIC.
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such loan until a date
specified in the
related Mortgage Note or other loan document, the period from the
Closing Date
until such specified date.
"Loan-Specific Certificates" shall mean the Class ML Certificates
and
the Class CBM Certificates.
"Loan-Specific Principal Balance Certificates" shall mean the Class
ML
Certificates and the Class CBM Principal Balance Certificates.
"Loss of Value Payment" shall have the meaning assigned thereto
under
Section 2.03(e).
"Loss of Value Reserve Fund" shall mean the account or accounts
created and maintained by the Special Servicer pursuant to Section
3.04(e) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, on
behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS
Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series
2005-C3, Loss of Value Reserve Fund". The Loss of Value Reserve
Fund shall be
designated as an "outside reserve fund" (within the meaning of
Treasury
regulations section 1.860G-2(h)), pursuant to Section 2.05(b). The
Loss of Value
Reserve Fund will be part of the Trust Fund but not part of the
Grantor Trust
(if created hereunder taking into account Section 2.05(b)) or any
REMIC Pool.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of
all
reductions, if any, made in the related Uncertificated Principal
Balance
(without any corresponding deemed distribution of principal) on all
prior
Distribution Dates, if any, pursuant to Section 4.04(d), over (ii)
the
total amount reimbursed to
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REMIC I with respect to any Loss Reimbursement Amount for such Loan
REMIC
Regular Interest on all prior Distribution Dates, if any, pursuant
to
Section 4.01(l);
(b) with respect to any REMIC I Regular Interest, for any
Distribution
Date, the excess, if any, of (i) the total amount of all
reductions, if
any, made in the related Uncertificated Principal Balance (without
any
corresponding deemed distribution of principal) on all prior
Distribution
Dates, if any, pursuant to Section 4.04(c), over (ii) the total
amount
reimbursed to REMIC II with respect to any Loss Reimbursement
Amount for
such REMIC I Regular Interest on all prior Distribution Dates, if
any,
pursuant to Section 4.01(k);
(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of
all
reductions, if any, made in the related Uncertificated Principal
Balance
(without any corresponding deemed distribution of principal) on all
prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii)
the sum
of (A) the total amount reimbursed to REMIC III with respect to any
Loss
Reimbursement Amount for such REMIC II Regular Interest on all
prior
Distribution Dates, if any, pursuant to Section 4.01(j), plus (B)
the total
amount reinstated to the Uncertificated Principal Balance of such
REMIC II
Regular Interest on all prior Distribution Dates, if any, pursuant
to
Section 4.05(c); and
(d) with respect to any Class of Principal Balance Certificates,
for
any Distribution Date, the excess, if any, of (i) the total amount
of all
reductions, if any, made in the related Class Principal Balance
(without
any corresponding distribution of principal) on all prior
Distribution
Dates, if any, pursuant to Section 4.04(a), over (ii) the sum of
(A) the
total amount of such reductions reimbursed to the Holders of such
Class of
Certificates with respect to any related Loss Reimbursement Amount
on all
prior Distribution Dates, if any, pursuant to Section 4.01(a) or
Section
4.01(b), as applicable, plus (B) the total amount of such
reductions
reinstated to the Class Principal Balance of such Class of
Certificates on
all prior Distribution Dates, if any, pursuant to Section 4.05(a).
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of June 21, 2005,
between
LBHI, LUBS Inc. as mortgage loan seller and the Depositor.
"LUBS Mortgage Loan Seller" shall mean LUBS Inc. or its successor
in
interest.
"LUBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the LUBS Mortgage Loan Seller to the Depositor,
pursuant to the
LUBS/Depositor Mortgage Loan Purchase Agreement.
"Majority Class CBM Certificateholder(s)" shall mean any single
Holder
or group of Holders (or any single Certificate Owner or group of
Certificate
Owners) of Class CBM Certificates evidencing a majority of the
Voting Rights
allocated to all Classes of Class CBM Certificates.
"Majority Class ML Certificateholder(s)" shall mean any single
Holder
or group of Holders (or any single Certificate Owner or group of
Certificate
Owners) of Class ML Certificates evidencing a majority of the
Voting Rights
allocated to all Classes of Class ML Certificates.
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"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner
or group of
Certificate Owners) of Certificates evidencing a majority of the
Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Wells Fargo, in its capacity as master
servicer hereunder, or any successor master servicer appointed as
herein
provided.
"Master Servicer Account" shall have the meaning assigned thereto
in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning
assigned
thereto in Section 8.15(h).
"Master Servicer Certification" shall have the meaning assigned
thereto in Section 2.01(d).
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the
aggregate
amount of all payments and other collections on or with respect to
the Trust
Mortgage Loans and any related REO Properties (including Loss of
Value Payments
and, in the case of the initial Distribution Date, any Initial
Deposits) that
(i) were Received by the Trust as of the close of business on the
immediately
preceding applicable Determination Date and (ii) are on deposit or
are required
to be on deposit in the Pool Custodial Account as of 12:00 noon
(New York City
time) on such Trust Master Servicer Remittance Date, including any
such payments
and other collections transferred or required to be transferred to
the Pool
Custodial Account from the Pool REO Account (if established) and/or
a Loan
Combination Custodial Account, net of (b) the portion of the
aggregate amount
described in clause (a) of this definition that represents one or
more of the
following--(i) scheduled Monthly Payments that are due on a Due
Date following
the end of the related Collection Period (or, in the case of a
scheduled Monthly
Payment that is due on a Due Date in the same month as such Trust
Master
Servicer Remittance Date but subsequent to the end of the related
Collection
Period, following the end of the calendar month in which such Trust
Master
Servicer Remittance Date occurs), (ii) any amount payable or
reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii)
through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv)
any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the related
Loan
Combination Master Servicer Remittance Date with respect to each
Loan
Combination and all related matters, and (ii) the Trust Master
Servicer
Remittance Date with respect to the Mortgage Pool (exclusive of the
Combination
Trust Mortgage Loans and any REO Trust Mortgage Loans with respect
to the
Combination Trust Mortgage Loans) and all related matters.
"Master Servicing Fee" shall mean, with respect to each of the
Mortgage Loans and REO Mortgage Loans, the fee designated as such
and payable to
the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto),
a rate per annum equal to the related Administrative Cost Rate
minus the Trustee
Fee Rate; and (b) with respect to each Non-Trust Mortgage Loan (and
any
successor REO Mortgage Loan with respect thereto), 0.01% per annum.
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"Material Breach" shall have the meaning assigned thereto in
Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in
Section 2.03(a).
"Maturity Date" shall mean, with respect to any Mortgage Loan as of
any date of determination, the Due Date on which the last payment
of principal
is due and payable under the terms of the related Mortgage Note, as
such terms
may be changed or modified from time to time in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by
he Special
Servicer (or the Master Servicer, if applicable) pursuant to
Section 3.20.
"Modified Loan" shall mean any Mortgage Loan as to which any
Servicing
Transfer Event has occurred and which has been modified by the
Special Servicer
pursuant to Section 3.20 in a manner that:
(a) 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 Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any
material
portion of the related Mortgaged Property without a corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less than
the fair
market value (as is) of the property to be released, as determined
by an
appraisal delivered to the Special Servicer (at the expense of the
related
Mortgagor and upon which the Special Servicer may conclusively
rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, 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 monthly
debt service
payment required to be paid on a current basis) on such Mortgage
Loan that is
actually payable by the related Mortgagor 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
Mortgagor or by reason of a modification, extension, waiver or
amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20,
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; and provided, further, that if the
related loan
documents for any Loan Combination provide for a single monthly
debt service
payment for the entire such Loan Combination, then the Monthly
Payment for each
Mortgage Loan comprising such Loan Combination for any Due Date
shall be that
portion of the monthly debt service payment for such Loan
Combination and such
Due Date that is, in accordance with the related loan documents
and/or the
related Co-Lender Agreement, in the absence of default, allocable
to interest at
the related Mortgage Rate on and/or principal of the subject
Mortgage Loan
comprising such Loan Combination; and
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provided, further, that with respect to each Split Trust Mortgage
Loan which
consists of Loan Components (for which a single monthly debt
service payment on
the entire related Loan Combination has been allocated to the
subject Split
Trust Mortgage Loan in accordance with the preceding proviso), the
Monthly
Payment for each Loan Component comprising the subject Split Trust
Mortgage Loan
for any Due Date shall be that portion of the Monthly Payment for
such Split
Trust Mortgage Loan and such Due Date that is, in accordance with
the related
loan documents and/or the related Co-Lender Agreement, in the
absence of
default, allocable to interest at the related Mortgage Rate on
and/or principal
of the subject Loan Component comprising such Split Trust Mortgage
Loan.
"Moody's" shall mean 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 agency or other comparable Person
designated by
the Depositor, notice of which designation shall be given to the
Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, and
specific ratings
of Moody's Investors Service, Inc. herein referenced shall be
deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument
that secures
such Mortgage Loan and creates a lien on the related Mortgaged
Property.
"Mortgage File" shall mean, with respect to any Trust Mortgage Loan
and, in the case of each Loan Combination, also with respect to
each Non-Trust
Mortgage Loan that is part of such Loan Combination, the following
documents
collectively (which, in the case of each Loan Combination, except
for the
Mortgage Notes referred to in clause (i) of this definition and any
modifications thereof referred to in clause (xiii) of this
definition, relate to
the entire such Loan Combination):
(i)
(A) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through Certificates, Series 2005-C3" or in blank, and
further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note), and (B) in the case
of each Loan Combination, a copy of the executed Mortgage Note
for each Non-Trust Mortgage Loan in such Loan Combination;
(ii) an original or a copy of the Mortgage, together with originals
or
copies of any and all intervening assignments thereof, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
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(iv) 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 LB-UBS Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series 2005-C3" (or, in the case of a Loan
Combination, in favor of "LaSalle Bank National Association, in
its capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through Certificates, Series 2005-C3, and in its capacity as
lead lender on behalf of the [IDENTIFY RELATED NON-TRUST MORTGAGE
LOAN NOTEHOLDER(S)]") (or, in each case, a copy thereof,
certified to be the copy of such assignment submitted for
recording);
(v)
an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C3, Commercial
Mortgage Pass-Through Certificates, Series 2005-C3" (or, in the
case of a Loan Combination, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C3, Commercial
Mortgage Pass-Through Certificates, Series 2005-C3, and in its
capacity as lead lender on behalf of the [IDENTIFY RELATED
NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) the original or a copy of the policy or certificate of
lender's
title insurance issued in connection with such Trust Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the
title insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(vii) an original or a copy of the Ground Lease relating to such
Trust
Mortgage Loan, if any;
(viii) an original or a copy of the loan agreement for such Trust
Mortgage Loan, if any;
(ix) an original of the related guaranty of payment under such
Trust
Mortgage Loan, if any;
(x)
an original or a copy of the environmental indemnity from the
related Mortgagor, if any;
(xi) an original or a copy of the lock-box agreement or cash
management agreement relating to such Trust Mortgage Loan, if
any;
(xii) a copy of the original letter of credit in connection with
such
Trust Mortgage Loan, if any;
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(xiii) originals or copies of final written modification agreements
in
those instances where the terms or provisions of the Mortgage
Note for such Trust Mortgage Loan (and/or, if applicable, the
Mortgage Note for a related Non-Trust Mortgage Loan) or the
related Mortgage have been modified as to a monetary term or
other material term thereof, in each case (unless the particular
item has not been returned from the applicable recording office)
with evidence of recording indicated thereon if the instrument
being modified is a recordable document;
(xiv) only if such Trust Mortgage Loan is secured by a nursing
facility or hospitality property as identified on Schedule VI
hereto, filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Trust Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the related Mortgage Loan Seller
had possession of such UCC Financing Statements prior to the
Closing Date) and an original assignment thereof, as appropriate,
in form suitable for filing, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C3, Commercial
Mortgage Pass-Through Certificates, Series 2005-C3" (or, in the
case of a Loan Combination, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2005-C3, Commercial
Mortgage Pass-Through Certificates, Series 2005-C3, and in its
capacity as lead lender on behalf of the [IDENTIFY RELATED
NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(xv) an original or a copy of the 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;
(xvi) an original assignment of the related security agreement (if
such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (iv)
or clause (v) of this definition), in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3"
(or, in the case of a Loan Combination, in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3,
and in its capacity as lead lender on behalf of the [IDENTIFY
RELATED NON-TRUST MORTGAGE LOAN NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Combination Trust Mortgage
Loan, a copy of the related Co-Lender Agreement;
(xviii) in the case of any Trust Mortgage Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement;
(xix) an original or a copy of any related Environmental Insurance
Policy; and
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(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter (if
any);
provided that 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 (vii) 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.
"Mortgage Loan" shall mean any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes
the related
Mortgage Note, Mortgage and other security documents contained in
the related
Mortgage File or otherwise held on behalf of the Trust and/or any
affected
Non-Trust Mortgage Loan Noteholder(s), as applicable.
"Mortgage Loan Origination Documents" shall mean, with respect to
any
Trust Mortgage Loan, any of the following documents (other than any
document
that constitutes part of the Mortgage File for such Trust Mortgage
Loan), if
applicable with respect to such Trust Mortgage Loan: copies of any
final
appraisal, final survey, final engineering report, final
environmental report,
opinion letters of counsel to the related mortgagor delivered in
connection with
the closing of such Trust Mortgage Loan, escrow agreements,
organizational
documentation for the related mortgagor, organizational
documentation for any
related guarantor or indemnitor (if the related guarantor or
indemnitor is an
entity), insurance certificates, leases for tenants representing
25% or more of
the annual income with respect to the related Mortgaged Property,
final seismic
report and property management agreements, but, in each case, only
if the
subject document (a) was in fact obtained in connection with the
origination of
such Trust Mortgage Loan, (b) relates to the administration or
servicing of such
Trust Mortgage Loan, (c) is reasonably necessary for the ongoing
administration
and/or servicing of such Trust Mortgage Loan by the Master Servicer
or Special
Servicer in connection with its duties under this Agreement, and
(d) is in the
possession or under the control of the Depositor (if such Trust
Mortgage Loan is
a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (if
such Trust
Mortgage Loan is a UBS Trust Mortgage Loan), as applicable;
provided that
neither the Depositor nor the UBS Mortgage Loan Seller shall be
required to
deliver any draft documents, privileged or other communications or
correspondence, credit underwriting or due diligence analyses or
information,
credit committee briefs or memoranda or other internal approval
documents or
data or internal worksheets, memoranda, communications or
evaluations.
"Mortgage Loan Purchase Agreements" shall mean the LBHI/Depositor
Mortgage Loan Purchase Agreement or the UBS/Depositor Mortgage Loan
Purchase
Agreement, as applicable.
"Mortgage Loan Seller" shall mean the Lehman Mortgage Loan Seller
or
the UBS Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note evidencing
the
indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any
REO
Trust Mortgage Loans, collectively.
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"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the
Distribution
Date Statement), prepared by the Trustee, containing information
regarding the
Trust Mortgage Loans as of the end of the related Collection
Period, which
report shall contain substantially the categories of information
regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-4 to the
Prospectus
Supplement (calculated, where applicable, on the basis of the most
recent
relevant information provided by the Mortgagors to the Master
Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or
the Special
Servicer, as the case may be, to the Trustee), and which
information shall be
presented in tabular format substantially similar to the format
utilized on such
annexes and shall also include a loan-by-loan listing (in
descending balance
order) showing loan number, property type, location, unpaid
principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest
portion of the
Monthly Payment, principal portion of the Monthly Payment, and any
Prepayment
Consideration received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto) or, in the
case of a Split
Trust Mortgage Loan (and any successor REO Mortgage Loan with
respect thereto),
with respect to each Loan Component of such Split Trust Mortgage
Loan, the
related annualized rate at which interest is scheduled (in the
absence of a
default) to accrue on such Mortgage Loan or such Loan Component, as
the case may
be, from time to time in accordance with the related Mortgage Note,
the related
loan agreement and applicable law, as such rate may be modified in
accordance
with Section 3.20 or in connection with a bankruptcy, insolvency or
similar
proceeding involving the related Mortgagor. In the case of any 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" shall mean the real property subject to the
lien
of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context
may require, (i) the primary obligor or obligors under a Mortgage
Note,
including any Person that has acquired the related Mortgaged
Property and
assumed the obligations of the original obligor under the Mortgage
Note, and
(ii) the owner of the related Mortgaged Property, if such owner has
executed the
related Mortgage with respect to the subject Mortgage Loan in
addition to a
guaranty of the obligations of the named obligor on the related
Mortgage Note,
and such guaranty is secured by such Mortgage; provided that the
foregoing
definition of "Mortgagor" shall not include any guarantors except
to the extent
described in clause (ii) above.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect
to any Distribution Date, the amount, if any, by which (a) the
aggregate of all
Prepayment Interest Shortfalls incurred with respect to the
Mortgage Pool in
connection with Principal Prepayments and/or, insofar as they
result from the
application of Insurance Proceeds and/or Condemnation Proceeds,
other early
recoveries of principal Received by the Trust on the Trust Mortgage
Loans
(including Specially Serviced Trust Mortgage Loans) during the
related
Collection Period, exceeds (b) the aggregate amount deposited by
the Master
Servicer in the Collection Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with such Prepayment Interest
Shortfalls.
"Net Available Distribution Amount" shall mean, with respect to any
Distribution Date, the Available Distribution Amount for such
Distribution Date,
reduced (to not less than zero) by the
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aggregate of the Class CBM Available Distribution Amount and the
Class ML
Available Distribution Amount for such Distribution Date.
"Net Default Charges" shall have, with respect to any Trust
Mortgage
Loan or REO Trust Mortgage Loan, the meaning assigned thereto in
Section
3.26(a).
"Net Investment Earnings" shall mean, with respect to any
Investment
Account for any related Investment Period, the amount, if any, by
which the
aggregate of all interest and other income realized during such
Investment
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 Mortgagor in
accordance
with the related loan documents and applicable law), exceeds the
aggregate of
all losses, if any, incurred during such Investment 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 Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the
aggregate of
all losses, if any, incurred during such Investment Period in
connection with
the investment of funds held in such Investment Account 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
Mortgagor),
exceeds the aggregate of all interest and other income realized
during such
Investment Period on such funds (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 Mortgagor in accordance with
the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially
Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses
incurred with
respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration
Received by the Trust (or, if applicable, on behalf of a Non-Trust
Mortgage Loan
Noteholder) with respect to any Mortgage Loan or REO Mortgage Loan
(or, with
respect to a Split Trust Mortgage Loan, with respect to any Loan
Component
thereof), net of any Workout Fee or Liquidation Fee payable
therefrom.
"Net Principal Distribution Amount" shall mean, with respect to any
Distribution Date, the Principal Distribution Amount, net of the
Class ML
Principal Distribution Amount and the Class CBM Principal
Distribution Amount,
for such Distribution Date.
"New Lease" shall mean any lease of an REO Property entered into at
the direction of the Special Servicer, including any lease renewed,
modified or
extended on behalf of the Trustee and, in the case of a Loan
Combination, the
related Non-Trust Mortgage Loan Noteholder(s).
"Non-Pooled Loan Component" shall mean the 200 Park Avenue Loan
Component A-1-B or the Courtyard by Marriott Loan Component A-1-B,
as
applicable.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or
Nonrecoverable Servicing Advance.
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"Nonrecoverable P&I Advance" shall mean:
(1)
any P&I Advance previously made or proposed to be made in
respect
of any Trust Mortgage Loan or REO Trust Mortgage Loan (or, in the
case of a Split Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, the related Pooled Component)
by the Master Servicer, the Trustee or the Fiscal Agent, which
P&I Advance such party has determined in its reasonable, good
faith judgment, will not be ultimately recoverable from late
payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of
such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case
may be; and
(2)
any P&I Advance previously made or proposed to be made in
respect
of any Specially Serviced Trust Mortgage Loan or any REO Trust
Mortgage Loan (or, in the case of a specially serviced Split
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, the related Pooled Component) that the Special
Servicer has determined, in accordance with the Servicing
Standard, will not be ultimately recoverable from late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such
Specially Serviced Trust Mortgage Loan or REO Trust Mortgage
Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean:
(1)
any Servicing Advance previously made or proposed to be made in
respect of any Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent,
which Servicing Advance such party has determined, in its
reasonable, good faith judgment, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in
respect of such Mortgage Loan (or, if such Mortgage Loan is part
of a Loan Combination, on or in respect of such Loan Combination)
or such REO Property, as the case may be; and
(2)
any Servicing Advance previously made or proposed to be made in
respect of any Specially Serviced Mortgage Loan or REO Property
by the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, that the Special Servicer has determined, in
accordance with the Servicing Standard, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such Specially Serviced Mortgage Loan (or, if such
Mortgage Loan is part of a Loan Combination, on or in respect of
such Loan Combination) or such REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has
not
been the subject of registration under the Securities Act. As of
the Closing
Date, the Class X-CL, Class G, Class H, Class J, Class K, Class L,
Class M,
Class N, Class P, Class Q, Class S, Class T, Class X-CBM, Class
ML-1, Class
ML-2, Class CBM-1, Class CBM-2, Class CBM-3, Class R-I, Class R-II
and Class
R-III
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Certificates, the Class R-LR Certificates (if issued in accordance
with Section
2.06) and the Class V Certificates (if issued in accordance with
Section 2.05)
are Non-Registered Certificates.
"Non-Trust Mortgage Loan" shall mean any mortgage loan that is part
of
a Loan Combination but is not included in the Trust Fund. The
Non-Trust Mortgage
Loans consist of the 101 Avenue of the Americas Non-Trust Mortgage
Loan, 200
Park Avenue Non-Trust Mortgage Loans, the Courtyard by Marriott
Non-Trust
Mortgage Loans and the Note B Non-Trust Mortgage Loans.
"Non-Trust Mortgage Loan Noteholder" shall mean the holder of the
Mortgage Note for a Non-Trust Mortgage Loan.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Note A Trust Mortgage Loan" shall have the meaning assigned to
that
term in the Preliminary Statement.
"Note B Non-Trust Mortgage Loan" shall mean the Courtyard by
Marriott
Note B Non-Trust Mortgage Loan or any A/B Loan Combination Note B
Non-Trust
Mortgage Loan, as applicable.
"Note B Non-Trust Mortgage Loan Noteholder" shall mean the holder
of
the Mortgage Note for a Note B Non-Trust Mortgage Loan.
"Offering Memorandum" shall mean the Offering Memorandum dated June
21, 2005, relating to the Class X-CL, Class G, Class H, Class J,
Class K, Class
L, Class M, Class N, Class P, Class Q, Class S, Class T, Class
X-CBM, Class
ML-1, Class ML-2, Class CBM-1, Class CBM-2 and Class CBM-3
Certificates.
"Officer's Certificate" shall mean a certificate signed by a
Servicing
Officer of the Master Servicer or the Special Servicer, as the case
may be, or
by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be,
and shall mean 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 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" shall mean a written opinion of counsel, who
may,
without limitation, be salaried counsel for the Depositor, the
Master Servicer
or the Special Servicer, acceptable in form and delivered to the
Trustee or any
other specified Person, as the case may be, except that any opinion
of counsel
relating to (a) the qualification of any REMIC Pool as a REMIC, (b)
compliance
with the REMIC Provisions, (c) qualification of the Grantor Trust
(if created
hereunder taking into account Section 2.05(b)) as a grantor trust,
(d) whether
any act or event would cause an Adverse REMIC Event or Adverse
Grantor Trust
Event, as may be applicable, or (e) the resignation of the Master
Servicer or
the Special Servicer pursuant to this Agreement, must be a written
opinion of
Independent counsel acceptable to and delivered to the Trustee or
any other
specified Person, as the case may be.
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"Original Class Notional Amount" shall mean, with respect to either
Class of Interest-Only Certificates, the initial Class Notional
Amount thereof
as of the Closing Date, which shall equal: $1,966,695,523, in the
case of the
Class X-CL Certificates; $1,841,754,000, in the case of the Class
X-CP
Certificates; and $42,700,000, in the case of the Class X-CBM
Certificates.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class
Principal Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership
or security interest in such Certificate as the Holder thereof and
any other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance" shall mean, as to any Trust Mortgage Loan or REO
Trust
Mortgage Loan (or, in the case of a Split Trust Mortgage Loan or
any successor
REO Trust Mortgage Loan with respect thereto, the related Pooled
Component), any
advance made by the Master Servicer, the Trustee or the Fiscal
Agent pursuant to
Section 4.03.
"Pari Passu Non-Trust Mortgage Loan" shall mean the 200 Park Avenue
Non-Trust Mortgage Loans, the Courtyard by Marriott Pari Passu
Non-Trust
Mortgage Loans and the 101 Avenue of the Americas Non-Trust
Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan Securities" shall mean any
securities evidencing an interest in, or secured by, a Pari Passu
Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Pari Passu Non-Trust Mortgage Loan Securitization Agreement" shall
mean any agreement governing the securitization of a Pari Passu
Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Pari Passu Non-Trust Mortgage Loan Securitization Trust" shall
mean
any commercial mortgage securitization trust similar to the
commercial mortgage
securitization trust contemplated by this Agreement, that from time
to time
holds a Pari Passu Non-Trust Mortgage Loan or any successor REO
Mortgage Loan
with respect thereto.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 4.394% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 4.553% per annum;
(c) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 4.647% per annum;
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(d) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the
Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period
and (ii)
5.500% per annum;
(e) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 4.664% per annum;
(f) with respect to the Class A-5 Certificates, for any Interest
Accrual Period, 4.739% per annum;
(g) with respect to the Class A-M Certificates, for any Interest
Accrual Period, 4.794% per annum;
(h) with respect to the Class A-J Certificates, for any Interest
Accrual Period, 4.843% per annum;
(i) with respect to the Class B Certificates, for any Interest
Accrual
Period, 4.895% per annum;
(j) with respect to the Class C Certificates, for any Interest
Accrual
Period, 4.924% per annum;
(k) with respect to the Class D Certificates, for any Interest
Accrual
Period, 4.954% per annum;
(l) with respect to the Class E Certificates, for any Interest
Accrual
Period, 4.983% per annum;
(m) with respect to the Class F Certificates, for any Interest
Accrual
Period, 5.013% per annum;
(n) with respect to the Class G Certificates, for any Interest
Accrual
Period, an annual rate equal to the lesser of (i) the Weighted
Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.111%
per annum;
(o) with respect to the Class H Certificates, for any Interest
Accrual
Period,, an annual rate equal to the lesser of (i) the Weighted
Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.500%
per annum;
(p) with respect to the Class J Certificates, for any Interest
Accrual
Period, an annual rate equal to the lesser of (i) the Weighted
Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.500%
per annum;
(q) with respect to the Class K Certificates, for any Interest
Accrual
Period, an annual rate equal to the lesser of (i) the Weighted
Average
REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.500%
per annum;
(r) with respect to the Class L, Class M, Class N, Class P, Class
Q,
Class S and Class T Certificates, for any Interest Accrual Period,
4.563%
per annum;
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(s) with respect to the Class ML-1 Certificates, for any Interest
Accrual Period, 5.45690% per annum;
(t) with respect to the Class ML-2 Certificates, for any Interest
Accrual Period, 5.79380% per annum;
(u) with respect to the Class CBM-1 Certificates, for any Interest
Accrual Period, 4.94400% per annum;
(v) with respect to the Class CBM-2 Certificates, for any Interest
Accrual Period, 5.36760% per annum;
(w) with respect to the Class CBM-3 Certificates, for any Interest
Accrual Period, 5.75310% per annum;
(x) with respect to any Class X-CL REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if
such Class
X-CL REMIC III Component has a Corresponding Class X-CP REMIC III
Component, and if such Interest Accrual Period relates to, or
otherwise
ends prior to, the Class X-CP Termination Date for such
Corresponding Class
X-CP REMIC III Component, the excess, if any, of (A) the REMIC II
Remittance Rate with respect to such Class X-CL REMIC III
Component's
Corresponding REMIC II Regular Interest for such Interest Accrual
Period,
over (B) the greater of (1) the Adjusted REMIC II Remittance Rate
with
respect to such Class X-CL REMIC III Component's Corresponding
REMIC II
Regular Interest for such Interest Accrual Period and (2) the
Reference
Rate for such Interest Accrual Period; or (ii) in all other cases,
the
excess, if any, of (X) the REMIC II Remittance Rate with respect to
such
Class X-CL REMIC III Component's Corresponding REMIC II Regular
Interest
for such Interest Accrual Period, over (Y) the Adjusted REMIC II
Remittance
Rate with respect to such Class X-CL REMIC III Component's
Corresponding
REMIC II Regular Interest for such Interest Accrual Period;
(y) with respect to the Class X-CL Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average
(expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CL REMIC III
Components for
such Interest Accrual Period, weighted on the basis of the
respective
Component Notional Amounts of the Class X-CL REMIC III Components
outstanding immediately prior to the related Distribution Date;
(z) with respect to any Class X-CP REMIC III Component, for any
Interest Accrual Period, an annual rate equal to either: (i) if
such
Interest Accrual Period relates to, or otherwise ends prior to, the
Class
X-CP Termination Date for such Class X-CP REMIC III Component, the
excess,
if any, of (A) the lesser of (1) the REMIC II Remittance Rate with
respect
to such Class X-CP REMIC III Component's Corresponding REMIC II
Regular
Interest for such Interest Accrual Period and (2) the Reference
Rate for
such Interest Accrual Period, over (B) the Adjusted REMIC II
Remittance
Rate with respect to such Class X-CP REMIC III Component's
Corresponding
REMIC II Regular Interest for such Interest Accrual Period; or (ii)
if such
Interest Accrual Period relates to a Distribution Date subsequent
to the
Class X-CP Termination Date for such Class X-CP REMIC III
Component, 0% per
annum;
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(aa) with respect to the Class X-CP Certificates, for any Interest
Accrual Period, an annual rate equal to the weighted average
(expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CP REMIC III
Components for
such Interest Accrual Period, weighted on the basis of the
respective
Component Notional Amounts of the Class X-CP REMIC III Components
outstanding immediately prior to the related Distribution Date;
provided
that, for reporting purposes, the Pass-Through Rate of the Class
X-CP
Certificates for each Interest Accrual Period shall be calculated
in
accordance with the Prospectus Supplement;
(bb) with respect to any Class X-CBM REMIC III Component for any
Interest Accrual Period, an annual rate equal to the excess, if
any, of (i)
the REMIC II Remittance Rate with respect to such Class X-CBM REMIC
III
Component's Corresponding REMIC II Regular Interest for such
Interest
Accrual Period, over (ii) the Adjusted REMIC II Remittance Rate
with
respect to such Class X-CBM REMIC III Component's Corresponding
REMIC II
Regular Interest for such Interest Accrual Period; and
(cc) with respect to the Class X-CBM Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average
(expressed as
a percentage and rounded to six decimal places) of the respective
Pass-Through Rates applicable to the Class X-CBM REMIC III
Components for
such Interest Accrual Period, weighted on the basis of the
respective
Component Notional Amounts of the Class X-CBM REMIC III Components
outstanding immediately prior to the related Distribution Date.
The Weighted Average REMIC I Remittance Rate referenced above in
this
definition is also the REMIC II Remittance Rate for each REMIC II
Regular
Interest (other than REMIC II Regular Interests ML-1, ML-2, CBM-1,
CBM-2 and
CBM-3).
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest 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 Original Class
Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant
Class; and
(b) with respect to any other Certificate, the percentage interest
in
distributions to be made with respect to the relevant Class, as
stated on the
face of such Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage Loan
and
any Mortgage Loan as to which a Servicing Transfer Event has never
occurred.
"Performing Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Performing Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
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"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of
the Trustee
(in its individual capacity) if otherwise qualifying hereunder):
(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 (having original maturities
of not more than 365 days), provided that such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(ii) repurchase obligations with respect to any security described
in
clause (i) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations of the party agreeing to repurchase such obligations
are rated in the highest rating category of each of S&P,
Moody's
and, if applicable, Fitch (or, in the case of either Rating
Agency or, if applicable, Fitch, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Certificates or any class of Pari Passu Non-Trust Mortgage Loan
Securities that is rated by such rating agency, as evidenced in
writing by such rating agency). In addition, any such item by its
terms must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of S&P, Moody's and, if applicable, Fitch (or, in the case
of either Rating Agency or, if applicable, Fitch, such lower
rating as will not result in an Adverse Rating Event with respect
to any Class of Certificates or any class of Pari Passu Non-Trust
Mortgage Loan Securities that is rated by such rating agency, as
evidenced in writing by such rating agency). In addition, any
such item by its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index;
(iv) commercial paper (having original maturities of not more than
90
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
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) which is rated in
the highest rating
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category of each of S&P, Moody's and, if applicable, Fitch (or,
in the case of either Rating Agency or, if applicable, Fitch,
such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Certificates or any class of Pari
Passu Non-Trust Mortgage Loan Securities that is rated by such
rating agency, as evidenced in writing by such rating agency). In
addition, such commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(v)
units of money market funds rated in the highest applicable
rating category of each of S&P, Moody's and, if applicable,
Fitch
(or, in the case of either Rating Agency or, if applicable,
Fitch, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class of
Pari Passu Non-Trust Mortgage Loan Securities that is rated by
such rating agency, as evidenced in writing by such rating
agency) and which seeks to maintain a constant net asset value;
and
(vi) any other obligation or security that (A) is acceptable to
each
Rating Agency and, if applicable, Fitch, evidence of which
acceptability shall (1) in the case of either Rating Agency or,
if applicable, Fitch, be evidenced in a writing by such Rating
Agency or, if applicable, Fitch to the effect that such
obligation or security will not result in an Adverse Rating Event
with respect to any Class of Certificates or any class of Pari
Passu Non-Trust Mortgage Loan Securities that is rated by such
rating agency, or (2) otherwise be evidenced in a writing by each
Rating Agency and, if applicable, Fitch to the Master Servicer,
the Special Servicer and the Trustee, (B) has a short-term rating
of at least "A-1" or its equivalent from each Rating Agency and
(C) constitutes a "cash flow investment" (within the meaning of
the REMIC Provisions), as evidenced by an Opinion of Counsel
obtained at the expense of the Person that wishes to include such
obligation or security as a Permitted Investment;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; (2) no investment described hereunder may
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; and
(3) no
investment described hereunder may have a "r" highlighter or other
comparable
qualifier attached to its rating; and provided, further, that the
phrases "and,
if applicable, Fitch" and "or, if applicable, Fitch" in this
definition shall
mean that if any class of Pari Passu Non-Trust Mortgage Loan
Securities is rated
by Fitch, the Fitch rating shall be applicable.
"Permitted Purchase" shall mean:
(i) the repurchase of a Lehman Trust Mortgage Loan or any related
REO
Property by the Depositor, pursuant to Section 2.03;
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(ii) the repurchase of a UBS Trust Mortgage Loan or any related REO
Property by or on behalf of the UBS Mortgage Loan Seller, pursuant
to the
UBS/Depositor Mortgage Loan Purchase Agreement;
(iii) the purchase of a Specially Serviced Trust Mortgage Loan by a
Purchase Option Holder or its assignee, pursuant to Section 3.18;
(iv) the purchase of a Trust Mortgage Loan or REO Property by the
Special Servicer, a Controlling Class Certificateholder, the Master
Servicer, the Depositor or Lehman Brothers, pursuant to Section
9.01;
(v) the purchase of a Mortgage Loan by the holder of a related
mezzanine loan in connection with a default under such Mortgage
Loan, as
set forth in the related intercreditor agreement;
(vi) in the case of a Combination Trust Mortgage Loan, the purchase
of
such Mortgage Loan by a related Non-Trust Mortgage Loan Noteholder
or its
designee, pursuant to the related Co-Lender Agreement; or
(vii) in the case of a Split Trust Mortgage Loan, the purchase of
such
Mortgage Loan by a related Directing Certificateholder or its
designee,
pursuant to Sections 3.27 or 3.28 of this Agreement.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization,
(b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of
Counsel,
obtained at the request of the Trustee at the expense of such
Person or the
Person seeking to Transfer a Residual Interest Certificate,
supporting such
determination), the Transfer of a Residual Interest Certificate may
cause any
REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a
Disqualified
Partnership, or (e) 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.
"Person" shall mean 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.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any
taxable year of any REMIC Pool, the Holder of Certificates
evidencing the
largest Percentage Interest in the related Class of Residual
Interest
Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts
created and maintained by the Master Servicer pursuant to Section
3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, on behalf
of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS
Commercial
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Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series
2005-C3, Pool Custodial Account".
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section
3.16 on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, on
behalf of [NAME OF
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS
Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series
2005-C3, Pool REO Account".
"Pooled Loan Component" shall mean the 200 Park Avenue Loan
Component
A-1-A or the Courtyard by Marriott Loan Component A-1-A, as
applicable.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if
any, on the
Certificates for federal income tax purposes, the assumption that
no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed
that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium, Yield
Maintenance Charge and/or Excess Defeasance Deposit Proceeds.
"Prepayment Consideration Entitlement" shall mean, with respect to
(a)
any Distribution Date on which any Net Prepayment Consideration
Received by the
Trust on any Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto) is distributable and (b) any Class of YM Principal
Balance
Certificates that is entitled to distributions of principal on such
Distribution
Date, for purposes of determining the portion of such Net
Prepayment
Consideration distributable with respect to such Class of YM
Principal Balance
Certificates, an amount equal to the product of (x) the amount of
such Net
Prepayment Consideration (reduced, if applicable, to not less than
zero, by any
portion thereof that constitutes Class ML Net Prepayment
Consideration or Class
CBM Net Prepayment Consideration), multiplied by (y) a fraction
(not greater
than 1.0 or less than 0.0), the numerator of which is equal to the
excess, if
any, of the Pass-Through Rate for such Class of YM Principal
Balance
Certificates for the related Interest Accrual Period over the
relevant Discount
Rate, and the denominator of which is equal to the excess, if any,
of the
Mortgage Rate for such Trust Mortgage Loan (or REO Trust Mortgage
Loan) over the
relevant Discount Rate, and further multiplied by (z) a fraction,
the numerator
of which is equal to the amount of principal to be distributed on
such Class of
YM Principal Balance Certificates on such Distribution Date
pursuant to Section
4.01 or 9.01, as applicable, and the denominator of which is equal
to the
Adjusted Net Principal Distribution Amount for such Distribution
Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage
Loan (or, in the case of a Split Trust Mortgage Loan, any related
Loan
Component) 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 its
Due Date in
any applicable Collection Period, any payment of interest (net of
related Master
Servicing Fees) actually collected from the related Mortgagor or
otherwise and
intended to cover interest accrued on such Principal Prepayment
during the
period from and after such Due Date (exclusive, however, of any
related
Prepayment Consideration that may have been collected and, in the
case of an ARD
Mortgage Loan after its Anticipated Repayment Date, further
exclusive of any
Additional Interest).
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"Prepayment Interest Shortfall" shall mean, with respect to any
Mortgage Loan (or, in the case of a Split Trust Mortgage Loan, any
related Loan
Component) 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
its Due Date
in any applicable Collection Period, the amount of interest, to the
extent not
collected from the related Mortgagor or otherwise (without regard
to any
Prepayment Consideration that may have been collected), that would
have accrued
at a rate per annum equal to the related Mortgage Rate (reduced, in
the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, by the
related
Additional Interest Rate) on the amount of such Principal
Prepayment during the
period from the date to which interest was paid by the related
Mortgagor to, but
not including, such Due Date (exclusive of any related Master
Servicing Fees
that would have been payable out of such uncollected interest).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge or any Excess Defeasance Deposit
Proceeds) paid
or payable, as the context requires, as a result of a Principal
Prepayment on,
or other early collection of principal of, a Mortgage Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that
are primarily
responsible for such party's servicing obligations hereunder. As of
the Closing
Date, the Primary Servicing Office of the Master Servicer is
located at 45
Fremont Street, 2nd Floor, San Francisco, California 94105, and the
Primary
Servicing Office of the Special Servicer is located at 1650 Tysons
Boulevard,
Suite 1600, McLean, Virginia 22102.
"Prime Rate" shall mean 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 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 Fiscal Agent, the Master Servicer, the
Special Servicer
and each Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without
duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal
Prepayments) Received by the Trust with respect to the Trust
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 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
subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Trust Mortgage Loans for their respective Due
Dates
occurring during the related Collection Period, that were Received
by the
Trust prior to the related Collection Period;
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(c) the aggregate of all Principal Prepayments Received by the
Trust
on the Trust Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds
and Insurance Proceeds Received by the Trust with respect to any
Trust
Mortgage Loans during the related Collection Period that were
identified
and applied by the Master Servicer as recoveries of principal of
such Trust
Mortgage Loans, in each case exclusive 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 was previously made under this
Agreement for a
prior Distribution Date;
(e) 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 Master Servicer as recoveries of
principal of
the related REO Trust Mortgage Loans, in each case exclusive 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 was
previously made under this Agreement for a prior Distribution Date;
and
(f) the aggregate of the principal portions of all P&I Advances
made
under this Agreement with respect to the Trust Mortgage Loans and
any REO
Trust Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) through
(f) of this
definition shall represent amounts received, due or advanced on or
in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect
thereto.
"Principal Prepayment" shall mean any voluntary payment of
principal
made by or on behalf of the Mortgagor on a Mortgage Loan (or, in
the case of a
Split Trust Mortgage Loan, on a related Loan Component) that is
received in
advance of its scheduled Due Date, that is Received by the Trust
and that is not
accompanied by an amount of interest (without regard to any
Prepayment
Consideration 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.
"Prohibited Transaction Exemption" shall mean Prohibited
Transaction
Exemption 91-14 granted to a predecessor of Lehman Brothers by the
United States
Department of Labor, as such Prohibited Transaction Exemption may
be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated June 13, 2005, as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
June 21, 2005, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
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"Purchase Option Holders" shall have the meaning assigned thereto
in
Section 3.18(b).
"Purchase Price" shall mean, with respect to any Trust Mortgage
Loan
(or REO Property or, in the case of any REO Property that relates
to a Loan
Combination, the Trust's interest therein), a cash price equal to
the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage
Loan (or, in
the case of an REO Property, the related REO Trust Mortgage Loan)
as of the date
of purchase, (b) all accrued and unpaid interest on such Trust
Mortgage Loan
(or, in the case of an REO Property, the related REO Trust Mortgage
Loan) to,
but not including, the Due Date in the applicable Collection Period
of purchase
(exclusive, however, of any portion of such accrued but unpaid
interest that
represents Default Interest or, in the case of an ARD Trust
Mortgage Loan (or,
in the case of an REO Property, any successor REO Trust Mortgage
Loan with
respect thereto) after its Anticipated Repayment Date, Additional
Interest), (c)
all related unreimbursed Servicing Advances with respect to such
Trust Mortgage
Loan (or REO Property), if any, together with the amount of any
Servicing
Advance (and accrued interest thereon in accordance with Section
3.11(g)) with
respect to such Trust Mortgage Loan (or REO Property) that has been
previously
reimbursed as a Nonrecoverable Advance out of general collections
of principal
on the Mortgage Pool (but only to the extent such amounts have not
been
reimbursed to the Trust), (d) all accrued and unpaid interest, if
any, in
respect of related Advances in accordance with, as applicable,
Section 3.11(g)
and/or Section 4.03(d), and (e) in the case of a repurchase by the
Depositor
pursuant to Section 2.03 or by the UBS Mortgage Loan Seller
pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement, (i) to the extent
not otherwise
included in the amount described in clause (d) of this definition,
any unpaid
Special Servicing Fees and other Additional Trust Fund Expenses
with respect to
such Trust Mortgage Loan (or REO Property), including any
Liquidation Fee that
may be payable because the subject repurchase occurred subsequent
to the
expiration of the Seller/Depositor Resolution Period for the
Material Document
Defect or Material Breach, as applicable, that gave rise to the
repurchase, and
(ii) to the extent not otherwise included in the amount described
in clause (c)
of this definition, any costs and expenses incurred by the Master
Servicer, the
Special Servicer or the Trustee (on behalf of the Trust) in
enforcing the
obligation of such Person to purchase such Trust Mortgage Loan (or
such REO
Property or an interest therein); provided that, in the case of a
Trust Mortgage
Loan that is part of a Loan Combination, the Purchase Price
calculated above may
be reduced (subject to the provisions of the related Co-Lender
Agreement) by any
related unpaid Master Servicing Fees, unreimbursed Advances and/or,
to the
extent included therein pursuant to clause (d) above, unpaid
interest on
Advances which, following the subject purchase, will continue to be
payable or
reimbursable under the related Co-Lender Agreement and/or any
successor
servicing agreement to the Master Servicer and/or the Special
Servicer in
respect of such Trust Mortgage Loan (which amounts shall no longer
be payable
hereunder); and provided, further, that, in the case of an REO
Property that
relates to a Loan Combination, for purposes of Section 3.18,
Section 6.11 and
Section 6.12, the Purchase Price for such REO Property shall
instead equal the
aggregate of the amounts described in clauses (a), (b), (c) and (d)
above with
respect to all of the REO Mortgage Loans comprising such Loan
Combination.
"Qualified Bidder" shall have the meaning assigned thereto in
Section
7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities
Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in
the relevant
jurisdiction.
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"Qualified Mortgage" shall have the meaning assigned thereto in
Section 2.03(a).
"Rated Final Distribution Date" shall mean: (a) with respect to the
Senior Class A Certificates, the Distribution Date in July 2030;
(b) with
respect to the Class ML Certificates, the Distribution Date in May
2020; (c)
with respect to the Class CBM Principal Balance Certificates, Date
in April
2020; and (d) with respect to the other Classes of Principal
Balance
Certificates (exclusive of the Class T Certificates), the
Distribution Date in
July 2040.
"Rating Agency" shall mean each of S&P and Moody's.
"Realized Loss" shall mean:
(1) with respect to each Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any REO Mortgage
Loan as to
which a Final Recovery Determination has been made as to the
related REO
Property, or with respect to any Trust Mortgage Loan that was the
subject
of a Permitted Purchase for less than the applicable Purchase
Price, an
amount (not less than zero) equal to the excess, if any, of (a) the
sum of
(i) the unpaid principal balance of such Mortgage Loan or REO
Mortgage
Loan, as the case may be, as of the commencement of the applicable
Collection Period in which the Final Recovery Determination or
purchase, as
the case may be, was made, plus (ii) without taking into account
the amount
described in subclause (1)(b) of this definition, all accrued but
unpaid
interest on such Mortgage Loan or such REO Mortgage Loan, as the
case may
be, to but not including the Due Date in the applicable Collection
Period
in which the Final Recovery Determination or purchase, as the case
may be,
was made (exclusive, however, of any portion of such accrued but
unpaid
interest that represents Default Interest or, in the case of an ARD
Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto
after its Anticipated Repayment Date, Additional Interest), over
(b) all
payments and proceeds, if any, received in respect of such Mortgage
Loan
or, to the extent allocable to such REO Mortgage Loan, the related
REO
Property, as the case may be, during the applicable Collection
Period in
which such Final Recovery Determination or purchase, as the case
may be,
was made, insofar as such payments and proceeds are allocable to
interest
(other than Default Interest and Additional Interest) on or
principal of
such Mortgage Loan or REO Mortgage Loan;
(2) with respect to each Mortgage Loan as to which any portion of
the
principal or previously accrued interest payable thereunder was
canceled in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to
Section 3.20, 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) so canceled;
(3) with respect to each 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
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to
Section 3.20, the amount of the consequent reduction in the
interest
portion of each successive Monthly Payment due thereon (each such
Realized
Loss shall be deemed to have been incurred on the Due Date for each
affected Monthly Payment); and
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(4) with respect to any Trust Mortgage Loan or REO Trust Mortgage
Loan, to the extent not otherwise taken into account as part of a
Realized
Loss determined pursuant to any of clauses (1), (2) and (3) of this
definition, the amount of any related Advance that is reimbursed as
a
Nonrecoverable Advance out of general collections on the Mortgage
Pool (net
of any Recovered Amount in connection with the item for which such
Nonrecoverable Advance was made).
Notwithstanding the foregoing, "Realized Loss" shall mean, with
respect to each
Loan Component, the portion of the Realized Loss of the related
Split Trust
Mortgage Loan or any related REO Trust Mortgage Loan that is
allocable to such
Loan Component in accordance with the related Co-Lender Agreement
and this
Agreement.
"Received by the Trust" shall mean, in the case of any Trust
Mortgage
Loan or REO Property, received by the Master Servicer or any of its
Sub-Servicers, the Special Servicer or any of its Sub-Servicers or
the Trustee,
as the case may be, in any event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date,
the
last Business Day of the month immediately preceding the month in
which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section
1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference
Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference Rates
set
forth on the schedule attached hereto as Schedule VIII.
"Registered Certificate" shall mean 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-4, Class A-AB, Class A-5,
Class X-CP,
Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class
F
Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold
outside of the
United States in reliance on Regulation S, one or collectively more
global
Certificates of such Class registered in the name of the Depository
or its
nominee, in definitive, fully registered form without interest
coupons, each of
which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, 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
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the United States or to a United States Securities Person prior to
the
applicable Regulation S Release Date, except pursuant to an
exemption from the
registration requirements of the Securities Act.
"Regulation S Release Date" shall mean, with respect to any Class
of
Book-Entry Non-Registered Certificates offered and sold outside the
United
States in reliance on Regulation S, the date that is 40 days after
the later of
(a) the commencement of the offering of such Certificates to
Persons other than
distributors in reliance on Regulation S, and (b) the date of
closing of the
offering.
"Reimbursement Rate" shall mean the rate per annum applicable to
the
accrual of interest, compounded annually, on Servicing Advances in
accordance
with Section 3.11(g) and on P&I Advances in accordance with
Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with
respect to
which a separate REMIC election is to be made, and consisting of:
(i) any Loan
REMIC Regular Interests; (ii) the Trust Mortgage Loans (exclusive
of any Early
Defeasance Trust Mortgage Loans) as from time to time are subject
to this
Agreement and all payments under and proceeds of such Trust
Mortgage Loans
Received by the Trust after the Closing Date (other than any such
payments
and/or proceeds that represent (A) scheduled payments of interest
and principal
due in respect of the Trust Mortgage Loans on or before the Cut-off
Date, or (B)
Additional Interest Received by the Trust in respect of the ARD
Trust Mortgage
Loans, if any, after their respective Anticipated Repayment Dates),
together
with all documents included in the related Mortgage Files; (iii)
any REO
Properties (other than an REO Property acquired in respect of any
Early
Defeasance Trust Mortgage Loan) as from time to time are subject to
this
Agreement (or, in the case of any REO Property that relates to a
Loan
Combination, the Trust's interest therein) and all income and
proceeds
therefrom; (iv) such funds or assets (including any Initial
Deposits) as from
time to time are deposited in the Pool Custodial Account, the
Collection
Account, the Interest Reserve Account and, if established, the Pool
REO Account,
exclusive of any such funds or assets that (A) are included in a
Loan REMIC or
(B) represent Additional Interest Received by the Trust in respect
of the ARD
Trust Mortgage Loans, if any, after their respective Anticipated
Repayment
Dates; (v) to the extent not included in a Loan REMIC, the rights
of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement;
and (vi) the
rights of the holder of the Mortgage Note for each Trust Mortgage
Loan that is
part of a Loan Combination under the related Co-Lender Agreement;
provided that
REMIC I shall not include the Non-Trust Mortgage Loans or any
successor REO
Mortgage Loans with respect thereto or any payments or other
collections of
principal, interest, Prepayment Consideration or other amounts
collected on such
Non-Trust Mortgage Loans or any successor REO Mortgage Loans with
respect
thereto; and provided, further, that REMIC I shall not include the
Loss of Value
Reserve Fund or any amounts on deposit therein.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and
designated as a "regular interest" in REMIC I, as described in the
Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean: (a) with respect to any REMIC
I
Regular Interest issued in respect of a Loan REMIC Regular
Interest, a rate per
annum that is, for any Interest Accrual Period, equal to the Loan
REMIC
Remittance Rate with respect to such Loan REMIC Regular
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Interest for such Interest Accrual Period; (b) with respect to any
REMIC I
Regular Interest that, as of the Closing Date, corresponds to a
Trust Mortgage
Loan (other than any Early Defeasance Trust Mortgage Loan) that
accrues interest
on a 30/360 Basis, a rate per annum that is, for any Interest
Accrual Period,
equal to (i) the Mortgage Rate in effect for such corresponding
Trust Mortgage
Loan as of the Closing Date (without regard to any modifications,
extensions,
waivers or amendments of such corresponding Trust Mortgage Loan
subsequent to
the Closing Date), minus (ii) the Administrative Cost Rate for such
corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto); (c) with respect to any REMIC I Regular Interest
(other than
REMIC I Regular Interest ML-A-1-B and REMIC I Regular Interest
CBM-A-1-B) that,
as of the Closing Date, corresponds to a Trust Mortgage Loan (other
than any
Early Defeasance Trust Mortgage Loan) that accrues interest on an
Actual/360
Basis, a rate per annum that is, for any Interest Accrual Period,
equal to (i) a
fraction (expressed as a percentage), the numerator of which is the
product of
12 times the Adjusted Actual/360 Accrued Interest Amount with
respect to such
REMIC I Regular Interest for such Interest Accrual Period, and the
denominator
of which is the Uncertificated Principal Balance of such REMIC I
Regular
Interest immediately prior to the Distribution Date that
corresponds to such
Interest Accrual Period, minus (ii) the Administrative Cost Rate
for the
corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto); and (d) with respect to any REMIC I Regular
Interest ML-A-1-B
and REMIC I Regular Interest CBM-A-1-B, a rate per annum that is,
for any
Interest Accrual Period, equal to (i) the Mortgage Rate in effect
for such
corresponding Non-Pooled Loan Component as of the Closing Date
(without regard
to any modifications, extensions, waivers or amendments of such
corresponding
Non-Pooled Loan Component subsequent to the Closing Date), minus
(ii) the
Administrative Cost Rate for such corresponding Non-Pooled Loan
Component of the
subject Split Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto).
"REMIC II" shall mean the segregated pool of assets consisting of
all
of the REMIC I Regular Interests conveyed in trust to the Trustee
for the
benefit of REMIC III, as holder of the REMIC II Regular Interests,
and the
Holders of the Class R-II Certificates, pursuant to Section 2.09,
with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the 42 separate
non-certificated beneficial ownership interests in REMIC II issued
hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II
Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect
from time to
time and, further, shall be entitled to distributions of principal,
subject to
the terms and conditions hereof, in an aggregate amount equal to
its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement
hereto. The designations for the respective REMIC II Regular
Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean, during any Interest Accrual
Period, with respect to: (i) any REMIC II Regular Interest (other
than REMIC II
Regular Interests ML-1, ML-2, CBM-1, CBM-2 and CBM-3) an annual
rate equal to
the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period;
(ii) REMIC II Regular Interest ML-1, 5.45690%; (iii) REMIC II
Regular Interest
ML-2, 5.79380%; (iv) each of REMIC II Regular Interest CBM-1, REMIC
II Regular
Interest CBM-2 and REMIC II Regular Interest CBM-3, the REMIC I
Remittance Rate
in effect for REMIC I Regular Interests CBM-A-1-B during such
Interest Accrual
Period.
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"REMIC III" shall mean the segregated pool of assets consisting of
all
of the REMIC II Regular Interests conveyed in trust to the Trustee
for the
benefit of the Holders of the REMIC III Certificates, pursuant to
Section 2.11,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2, Class
A-3, Class A-4, Class A-AB, Class A-5, Class X-CL, Class X-CP,
Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S,
Class T, Class
ML-1, Class ML-2, Class CBM-1, Class CBM-2, Class CBM-3, Class
X-CBM or Class
R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the Class
X-CL
REMIC III Components;
(b) with respect to the Class X-CP Certificates, any of the Class
X-CP
REMIC III Components; and
(c) with respect to the Class X-CBM Certificates, any of the Class
X-CBM REMIC III Components.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and,
subject to Section 2.06(b), the Loan REMICs.
"REMIC Provisions" shall mean the provisions of the federal income
tax
law relating to REMICs, 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" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d)
of the Code.
"REO Account" shall mean the Pool REO Account or a Loan Combination
REO Account, as applicable.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO
Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Loan
Combination is involved, one of the two or more mortgage loans
comprising such
Loan Combination) deemed for purposes hereof to be outstanding with
respect to
each REO Property. Each REO Mortgage Loan shall be deemed to relate
to and
succeed the Mortgage Loan (or, in the case of any REO Property that
relates
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to a Loan Combination, one of the two or more Mortgage Loans)
relating to the
subject 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 as part of the Trust Fund or, if applicable in the case of
any REO
Property that relates to a Loan Combination, on behalf of the Trust
and the
related Non-Trust Mortgage Loan Noteholder(s)). Each REO Mortgage
Loan shall be
deemed to have an initial unpaid principal balance and, if
applicable hereunder,
an initial 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. Amounts
Received by the
Trust (or, if applicable, received on behalf of the related
Non-Trust Mortgage
Loan Noteholder) with respect to each REO Mortgage Loan (after
provision for
amounts to be applied to
