EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LNR PARTNERS, 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 August 11, 2005
----------
$2,344,068,538
LB-UBS Commercial Mortgage Trust 2005-C5
Commercial Mortgage Pass-Through Certificates,
Series 2005-C5
TABLE OF CONTENTS
<TABLE>
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS
TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01.
Defined
Terms................................................................11
SECTION 1.02.
General Interpretive
Principles.............................................108
SECTION 1.03.
Certain Adjustments to the Principal Distributions on the
Certificates......109
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.......................112
SECTION 2.02.
Acceptance of Trust Fund by
Trustee.........................................115
SECTION 2.03.
Repurchase of Trust Mortgage Loans for Document Defects and
Breaches of
Representations and
Warranties...........................................117
SECTION 2.04.
Representations, Warranties and Covenants of the
Depositor..................124
SECTION 2.05.
Acceptance of Grantor Trust Assets by Trustee; Issuance of the
Class V
Certificates.............................................................126
SECTION 2.06.
Acceptance of Loan REMICs by Trustee; Execution, Authentication and
Delivery
of Class R-LR
Certificates; Creation of Loan REMIC Regular Interests....127
SECTION 2.07.
Conveyance of Loan REMIC Regular
Interests..................................127
SECTION 2.08.
Execution, Authentication and Delivery of Class R-I Certificates;
Creation
of REMIC I Regular
Interests.............................................128
SECTION 2.09.
Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee..128
SECTION 2.10.
Execution, Authentication and Delivery of Class R-II Certificates;
Creation
of REMIC II Regular
Interests............................................128
SECTION 2.11.
Conveyance of REMIC II Regular Interests; Acceptance of REMIC III
by
Trustee..................................................................128
SECTION 2.12.
Execution, Authentication and Delivery of REMIC III
Certificates............129
SECTION 2.13.
Acceptance of Loss of Value Reserve Fund by
Trustee.........................129
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Mortgage
Loans........................................130
SECTION 3.02.
Collection of Mortgage Loan
Payments........................................132
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts;
Reserve
Accounts.........................................................135
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SECTION 3.04.
Pool Custodial Account, Defeasance Deposit Account, Collection
Account,
Interest Reserve Account, Excess Liquidation Proceeds Account and
Loss of
Value Reserve
Fund.......................................................137
SECTION 3.04A.
Loan Combination Custodial Accounts for Serviced Loan
Combinations..........143
SECTION 3.05.
Permitted Withdrawals From the Pool Custodial Account, the
Collection
Account, the Interest Reserve Account and the Excess Liquidation
Proceeds
Account..................................................................145
SECTION 3.05A.
Permitted Withdrawals From the Loan Combination Custodial
Accounts..........153
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.........................................................162
SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity
Coverage; Environmental
Insurance........................................164
SECTION 3.08.
Enforcement of Alienation
Clauses...........................................168
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required Appraisals;
Appraisal
Reduction
Calculation....................................................173
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files...............178
SECTION 3.11.
Servicing Compensation; Payment of Expenses; Certain Matters
Regarding
Servicing
Advances.......................................................179
SECTION 3.12.
Property Inspections; Collection of Financial Statements; Delivery
of
Certain
Reports..........................................................187
SECTION 3.12A.
Preparation and Delivery of Certain Statements and Reports to the
Serviced
Non-Trust Mortgage Loan
Noteholders......................................190
SECTION 3.13.
Annual Statement as to
Compliance...........................................192
SECTION 3.14.
Reports by Independent Public
Accountants...................................193
SECTION 3.15.
Access to Certain
Information...............................................194
SECTION 3.16.
Title to REO Property; REO
Accounts.........................................195
SECTION 3.17.
Management of REO
Property..................................................197
SECTION 3.18.
Sale of Trust Mortgage Loans and Administered REO
Properties................201
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; Mortgage Enforcement
Actions...................................205
SECTION 3.20.
Modifications, Waivers, Amendments and Consents;
Defeasance.................208
SECTION 3.21.
Transfer of Servicing Between Master Servicer and Special Servicer;
Record
Keeping..................................................................217
SECTION 3.22.
Sub-Servicing
Agreements....................................................219
SECTION 3.23.
Representations and Warranties of the Master
Servicer.......................221
SECTION 3.24.
Representations and Warranties of the Special
Servicer......................223
SECTION 3.25.
Certain Matters Regarding the Purchase of the Trust Mortgage Loan
in a Loan
Combination..............................................................224
SECTION 3.26.
Application of Default
Charges..............................................225
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions...............................................................228
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SECTION 4.02.
Statements to Certificateholders and
Others.................................239
SECTION 4.03.
P&I Advances With Respect to the Mortgage
Pool..............................247
SECTION 4.04.
Allocations of Realized Losses and Additional Trust Fund
Expenses...........253
SECTION 4.05.
Various Reinstatement
Amounts...............................................254
SECTION 4.06.
Calculations................................................................256
SECTION 4.07.
Use of
Agents...............................................................256
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates............................................................257
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates.......................257
SECTION 5.03.
Book-Entry
Certificates.....................................................265
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen
Certificates...........................267
SECTION 5.05.
Persons Deemed
Owners.......................................................267
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................268
SECTION 6.02.
Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or Conversion of Depositor, Master Servicer or
Special
Servicer.................................................................268
SECTION 6.03.
Limitation on Liability of Depositor, Master Servicer and Special
Servicer..269
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer.....................270
SECTION 6.05.
Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan
Noteholders in Respect of the Master Servicer and the Special
Servicer...271
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to Cooperate with
Trustee...271
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate with Master
Servicer...271
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate with Special
Servicer...272
SECTION 6.09.
Designation of Special Servicer and Controlling Class
Representative by the
Controlling Class; Designation of 500 West Madison Special Servicer
by
the 500 West Madison Note B Non-Trust Mortgage Loan
Noteholder...........272
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate...............276
SECTION 6.11.
Certain Powers of the Controlling Class
Representative......................276
SECTION 6.12.
Certain Matters Regarding the Serviced Loan
Combinations....................279
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of Default and Outside Servicer
Defaults.............................284
</TABLE>
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SECTION 7.02.
Trustee to Act; Appointment of
Successor....................................292
SECTION 7.03.
Notification to
Certificateholders..........................................293
SECTION 7.04.
Waiver of Events of Default and Outsider Servicer
Defaults..................293
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default or Outside
Servicer
Default..................................................................294
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of
Trustee...........................................................295
SECTION 8.02.
Certain Matters Affecting
Trustee...........................................296
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage
Loans...........................................297
SECTION 8.04.
Trustee and Fiscal Agent May Own
Certificates...............................297
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of and by
Trustee.............298
SECTION 8.06.
Eligibility Requirements for
Trustee........................................299
SECTION 8.07.
Resignation and Removal of
Trustee..........................................299
SECTION 8.08.
Successor
Trustee...........................................................301
SECTION 8.09.
Merger or Consolidation of Trustee and Fiscal
Agent.........................301
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee...............................301
SECTION 8.11.
Appointment of
Custodians...................................................302
SECTION 8.12.
Appointment of Authenticating
Agents........................................303
SECTION 8.13.
Appointment of Tax
Administrators...........................................304
SECTION 8.14.
Access to Certain
Information...............................................305
SECTION 8.15.
Reports to the Securities and Exchange Commission and Related
Reports.......306
SECTION 8.16.
Representations and Warranties of
Trustee...................................313
SECTION 8.17.
The Fiscal
Agent............................................................314
SECTION 8.18.
Representations and Warranties of Fiscal
Agent..............................315
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Trust Mortgage
Loans......317
SECTION 9.02.
Additional Termination
Requirements.........................................319
SECTION 9.03.
Outside Administered REO
Properties.........................................320
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC
Administration........................................................321
SECTION 10.02.
Grantor Trust
Administration................................................324
</TABLE>
<TABLE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment...................................................................327
SECTION 11.02.
Recordation of Agreement;
Counterparts......................................329
SECTION 11.03.
Limitation on Rights of
Certificateholders..................................329
SECTION 11.04.
Governing Law; Consent to
Jurisdiction......................................330
SECTION 11.05.
Notices.....................................................................330
SECTION 11.06.
Severability of
Provisions..................................................331
SECTION 11.07.
Grant of a Security
Interest................................................331
SECTION 11.08.
Streit
Act..................................................................332
SECTION 11.09.
Successors and Assigns;
Beneficiaries.......................................332
SECTION 11.10.
Article and Section
Headings................................................333
SECTION 11.11.
Notices to Rating
Agencies..................................................333
SECTION 11.12.
Complete
Agreement..........................................................334
</TABLE>
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-AB] [A-4] [A-1A] Certificate
A-2
Form of Class X-CP Certificate
A-3
Form of Class X-CL 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]
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
M
Form of Defeasance Certification
-vi-
Exhibit No.
Exhibit Description
-----------
-------------------
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
S
Form of Outside Master Servicer Notice
-vii-
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of August 11, 2005, among STRUCTURED ASSET SECURITIES
CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master
Servicer, LNR
PARTNERS, 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 there
will be no
Loan REMICs, neither the Class R-LR Certificates nor any Loan REMIC
Regular
Interests will be issued and 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. A separate REMIC I Regular Interest will, on the Closing
Date, be
issued with respect to, and will thereafter relate to, each Trust
Mortgage Loan
included in REMIC I and each 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. 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) 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 the
Cut-off Date
Balance of the related Trust Mortgage Loan. 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 and the initial Uncertificated Principal Balance
for each of the
REMIC II Regular Interests.
-2-
Initial Uncertificated
Designation of REMIC II Regular
Principal Balance of REMIC II
Interests
Regular Interests
-------------------------------
-----------------------------
A-1-1
$ 52,283,000
A-1-2
$ 25,717,000
A-1A-1
$
3,660,000
A-1A-2
$
3,674,000
A-1A-3
$
7,581,000
A-1A-4
$
7,156,000
A-1A-5
$ 36,043,000
A-1A-6
$
4,998,000
A-1A-7
$
3,976,000
A-1A-8
$105,234,000
A-2-1
$ 39,873,000
A-2-2
$118,670,000
A-2-3
$112,453,000
A-2-4
$ 76,004,000
A-3
$158,000,000
A-AB
$ 76,000,000
A-4-1
$ 36,490,000
A-4-2
$106,510,000
A-4-3
$ 67,365,000
A-4-4
$599,160,000
A-M
$234,407,000
A-J
$187,526,000
B
$ 20,510,000
C-1
$
7,434,000
C-2
$ 24,797,000
D-1
$
1,373,000
D-2
$ 27,928,000
E
$ 23,441,000
F-1
$ 18,347,000
F-2
$ 10,954,000
G-1
$
6,994,000
G-2
$ 19,377,000
H
$ 23,440,000
J-1
$
413,000
J-2
$ 14,238,000
K
$ 20,510,000
L
$
8,790,000
M
$
5,861,000
N
$
8,790,000
P
$
2,930,000
Q
$
5,860,000
S
$
5,860,000
T
$ 23,441,538
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
-3-
the Class X-CL and Class X-CP Certificates), each REMIC III
Component of the
Class X-CL Certificates and each REMIC III Component of the Class
X-CP
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 Class X-CL and Class X-CP
Certificates), for each
REMIC III Component of the Class X-CL Certificates and for each
REMIC III
Component of the Class X-CP Certificates is the latest Rated Final
Distribution
Date. The following table sets forth the Class designation and
original Class
Principal Balance for each Class of the Regular Interest
Certificates.
Class
Original Class
Designation of Regular Interest
Principal Balance of Regular
Certificate Classes
Interest Certificate Classes
-------------------------------
-----------------------------
Class A-1
$ 78,000,000
Class A-2
$347,000,000
Class A-3
$158,000,000
Class A-AB
$ 76,000,000
Class A-4
$809,525,000
Class A-1A
$172,322,000
Class A-M
$234,407,000
Class A-J
$187,526,000
Class B
$ 20,510,000
Class C
$ 32,231,000
Class D
$ 29,301,000
Class E
$ 23,441,000
Class F
$ 29,301,000
Class G
$ 26,371,000
Class H
$ 23,440,000
Class J
$ 14,651,000
Class K
$ 20,510,000
Class L
$
8,790,000
Class M
$
5,861,000
Class N
$
8,790,000
Class P
$
2,930,000
Class Q
$
5,860,000
Class S
$
5,860,000
Class T
$ 23,441,538
Class X-CL
(1)
Class X-CP
(2)
----------
(1)
The Class X-CL Certificates will not have a Class Principal Balance
and
will not entitle their Holders to receive distributions of
principal. The
Class X-CL Certificates will have a Class Notional Amount which
will be
equal to the aggregate of the Component Notional Amounts of the
Class X-CL
REMIC III Components from time to time. As more specifically
provided
herein, interest in respect of the Class X-CL Certificates will
consist of
the aggregate amount of interest accrued on the respective
Component
Notional Amounts of the Class X-CL REMIC III Components from time
to time.
-4-
(2)
The Class X-CP Certificates will not have a Class Principal Balance
and
will not entitle their Holders to receive distributions of
principal. The
Class X-CP Certificates will have a Class Notional Amount which
will be
equal to the aggregate of the Component Notional Amounts of the
Class X-CP
REMIC III Components from time to time. As more specifically
provided
herein, interest in respect of the Class X-CP Certificates will
consist of
the aggregate amount of interest accrued on the respective
Component
Notional Amounts of the Class X-CP REMIC III Components from time
to time.
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 $2,344,068,539.
There exists one Trust Mortgage Loan (the "200 Park Avenue Trust
Mortgage Loan"), with a Cut-off Date Balance of $285,131,898, that
is evidenced
by a Mortgage Note designated as the Second Amended and Restated
Promissory Note
A-2 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 Non-Trust Mortgage Loans consist of: (i) one mortgage
loan (the "200
Park Avenue Note A-1 Non-Trust Mortgage Loan") that has an unpaid
principal
balance as of the Cut-off Date of $329,736,204, is evidenced by a
Mortgage Note
designated as the Second Amended and Restated Promissory Note A-1
and is, as of
the Closing Date, together with various other commercial and
multifamily
mortgage loans, included in a commercial mortgage securitization
(the "LB-UBS
Series 2005-C3_Securitization") involving the issuance of the
LB-UBS Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series
2005-C3 (the "LB-UBS Series 2005-C3 Certificates"); and (ii) an
additional
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 the Second Amended and Restated
Promissory 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 or other
comparable
deemed 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.
As of the Closing Date, the entire 200 Park Avenue Loan Combination
is to be
serviced and administered in accordance with a pooling and
servicing agreement,
dated as of June 13, 2005 (together with any successor servicing
agreement
provided for under the 200 Park Avenue Co-Lender Agreement, as any
such
servicing agreement may be amended, restated, supplemented or
otherwise modified
from time to
-5-
time, the "200 Park Avenue Servicing Agreement"), between
Structured Asset
Securities Corporation II, as depositor, Wells Fargo Bank, National
Association,
as master servicer (in such capacity, and together with any
successor master
servicers in respect of the 200 Park Avenue Loan Combination, the
"200 Park
Avenue Master Servicer"), J.E. Robert Company, Inc., as special
servicer (in
such capacity, and together with any successor special servicers in
respect of
the 200 Park Avenue Loan Combination, the "200 Park Avenue Special
Servicer"),
LaSalle Bank National Association, as trustee (in such capacity,
and together
with any successor trustees under such pooling and servicing
agreement, the "200
Park Avenue Trustee") and ABN AMRO Bank N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "Courtyard by Marriott
Trust
Mortgage Loan"), with a Cut-off Date Balance of $177,900,000, that
is evidenced
by a Mortgage Note designated as Promissory Note (Replacement Note
A-2) 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 Non-Trust
Mortgage Loans consist of: (i) one (1) mortgage loan (the
"Courtyard by Marriott
Note A-1 Mortgage Loan") that has an unpaid principal balance as of
the Cut-off
Date of $164,200,000, is evidenced by a Mortgage Note designated as
Promissory
Note (Replacement Note A-1), consists of two (2) loan components
and is, as of
the Closing Date, together with various other commercial and
multifamily
mortgage loans, included in the LB-UBS Series 2005-C3
Securitization, which
involves the issuance of the LB-UBS Series 2005-C3 Certificates;
(ii) one (1)
mortgage loan (the "Courtyard by Marriott Note A-3 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 Promissory Note
(Replacement 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
Promissory Note
(Replacement 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 or comparable deemed 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. As of the Closing Date, the
entire
Courtyard by Marriott Loan Combination is to be serviced and
administered in
accordance with a pooling and servicing agreement, dated as of June
13, 2005
(together with any successor servicing agreement provided for under
the
Courtyard by Marriott Co-Lender Agreement, as any such servicing
agreement may
be amended, restated, supplemented or otherwise modified from time
to time, the
"Courtyard by Marriott Servicing Agreement"), between Structured
Asset
Securities Corporation II, as depositor, Wells Fargo Bank, National
Association,
as master servicer (in such capacity, and together with any
successor master
servicers in respect of the Courtyard by Marriott Loan Combination,
the
"Courtyard by Marriott Master Servicer"), J.E. Robert Company,
Inc., as special
servicer (in such capacity, and together with any successor special
servicers in
-6-
respect of the Courtyard by Marriott Loan Combination, the
"Courtyard by
Marriott Special Servicer"), LaSalle Bank National Association, as
trustee (in
such capacity, and together with any successor trustees under such
pooling and
servicing agreement, the "Courtyard by Marriott Trustee") and ABN
AMRO Bank
N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "1345 Avenue of the
Americas
Trust Mortgage Loan"), with a Cut-off Date Balance of $46,800,000,
that is
evidenced by a Mortgage Note designated as Note 1-A2 and is,
together with ten
(10) other mortgage loans that will not be part of the Trust Fund
(such ten (10)
other mortgage loans, collectively, the "1345 Avenue of the
Americas Non-Trust
Mortgage Loans"), secured on a collective basis by the same
Mortgage encumbering
the property identified on the Trust Mortgage Loan Schedule as 1345
Avenue of
the Americas (the "1345 Avenue of the Americas Mortgaged
Property"). The 1345
Avenue of the Americas Non-Trust Mortgage Loans consist of: (i) one
(1) mortgage
loan (the "1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage
Loan") that
has an unpaid principal balance as of the Cut-off Date of
$46,800,000 and is
evidenced by a Mortgage Note designated as Note 1-A1; (ii) one (1)
mortgage loan
(the "1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage
Loan") that has
an unpaid principal balance as of the Cut-off Date of $169,193,977
and is
evidenced by a Mortgage Note designated as Note 1-A3; (iii) one (1)
mortgage
loan (the "1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage
Loan") that
has an unpaid principal balance as of the Cut-off Date of
$169,193,977 and is
evidenced by a Mortgage Note designated as Note 1-A4; (iv) one (1)
mortgage loan
(the "1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan")
that has an
unpaid principal balance as of the Cut-off Date of $100,000,000, is
evidenced by
a Mortgage Note designated as Note 2 and consists of two (2) loan
components;
and (v) six (6) other mortgage loans (collectively, the "1345
Avenue of the
Americas Note 1-B/C Non-Trust Mortgage Loans") that have an
aggregate unpaid
principal balance as of the Cut-off Date of $198,012,046, are
evidenced by
Mortgage Notes designated as Note 1-B1, Note 1-B2, Note 1-C1, Note
1-C2, Note
1-C3 and Note 1-C4 respectively. The 1345 Avenue of the Americas
Trust Mortgage
Loan and the 1345 Avenue of the Americas Non-Trust Mortgage Loans
collectively
constitute the "1345 Avenue of the Americas Loan Combination"
(which term shall
include any group of successor REO Mortgage Loans or comparable
deemed mortgage
loans with respect to those 11 Mortgage Loans). The 1345 Avenue of
the Americas
Note 1-A3 Non-Trust Mortgage Loan, the 1345 Avenue of the Americas
Note 1-A4
Non-Trust Mortgage Loan and two (2) of the 1345 Avenue of the
Americas Note
1-B/C Non-Trust Mortgage Loans are included in a commercial
mortgage
securitization (the "Series FB 2005-1 Securitization") involving
the issuance of
the 1345 Avenue of the Americas and Park Avenue Plaza Trust,
Commercial Mortgage
Pass-Through Certificates, Series FB 2005-1 (the "Series FB 2005-1
Certificates"). The other 1345 Avenue of the Americas Non-Trust
Mortgage Loans
are held by third party institutional investors.
The relative rights of the respective lenders in respect of the
1345
Avenue of the Americas Loan Combination are set forth in a
co-lender agreement
dated as of July 6, 2005 (as amended, restated, supplemented or
otherwise
modified from time to time, the "1345 Avenue of the Americas
Co-Lender
Agreement"), between the holder of the Mortgage Note for the 1345
Avenue of the
Americas Trust Mortgage Loan and the respective holders of the
Mortgage Notes
for the 1345 Avenue of the Americas Non-Trust Mortgage Loans. As of
the Closing
Date, the entire 1345 Avenue of the Americas Loan Combination is to
be serviced
and administered in accordance with a pooling and servicing
agreement, dated as
of August 25, 2005 (together with any successor servicing agreement
provided for
under the 1345 Avenue of the Americas Co-Lender Agreement, as any
such servicing
agreement may be amended, restated, supplemented or otherwise
modified from time
to time, the "1345
-7-
Avenue of the Americas Servicing Agreement"), between Morgan
Stanley Capital I
Inc., as depositor, Wells Fargo Bank, National Association, as
master servicer
(in such capacity, and together with any successor master servicers
in respect
of the 1345 Avenue of the Americas Loan Combination, the "1345
Avenue of the
Americas Master Servicer"), Wells Fargo Bank, National Association,
as special
servicer (in such capacity, and together with any successor special
servicers in
respect of the 1345 Avenue of the Americas Loan Combination, the
"1345 Avenue of
the Americas Special Servicer"), LaSalle Bank National Association,
as trustee
(in such capacity, and together with any successor trustees under
such pooling
and servicing agreement, the "1345 Avenue of the Americas Trustee")
and ABN AMRO
Bank N.V., as fiscal agent.
There exists one Trust Mortgage Loan (the "Park Avenue Plaza Trust
Mortgage Loan"), with a Cut-off Date Balance of $19,350,000, that
is evidenced
by a Mortgage Note designated as Note 1-A2 and is, together with
six (6) other
mortgage loans that will not be part of the Trust Fund (such six
(6) other
mortgage loans, collectively, the "Park Avenue Plaza Non-Trust
Mortgage Loans"),
secured on a collective basis by the same Mortgage encumbering the
property
identified on the Trust Mortgage Loan Schedule as Park Avenue Plaza
(the "Park
Avenue Plaza Mortgaged Property"). The Park Avenue Plaza Non-Trust
Mortgage
Loans consist of: (i) one (1) mortgage loan (the "Park Avenue Plaza
Note 1-A1
Non-Trust Mortgage Loan") that has an unpaid principal balance as
of the Cut-off
Date of $19,350,000 and is evidenced by a Mortgage Note designated
as Note 1-A1;
(ii) one (1) mortgage loan (the "Park Avenue Plaza Note 1-A3
Non-Trust Mortgage
Loan") that has an unpaid principal balance as of the Cut-off Date
of
$55,494,045 and is evidenced by a Mortgage Note designated as Note
1-A3; (iii)
one (1) mortgage loan (the "Park Avenue Plaza Note 1-A4 Non-Trust
Mortgage
Loan") that has an unpaid principal balance as of the Cut-off Date
of
$55,494,045 and is evidenced by a Mortgage Note designated as Note
1-A4; (iv)
one (1) mortgage loan (the "Park Avenue Plaza Note 2 Non-Trust
Mortgage Loan")
that has an unpaid principal balance as of the Cut-off Date of
$100,000,000 and
is evidenced by a Mortgage Note designed as Note 2; and (v) two (2)
other
mortgage loans (together, the "Park Avenue Plaza Note 1-B Non-Trust
Mortgage
Loans") that have an aggregate principal balance as of the Cut-off
Date of
$1,311,910, and are evidenced by Mortgage Notes designated as Note
1-B1 and Note
1-B2, respectively. The Park Avenue Plaza Trust Mortgage Loan and
the Park
Avenue Plaza Non-Trust Mortgage Loans collectively constitute the
"Park Avenue
Plaza Loan Combination" (which term shall include any group of
successor REO
Mortgage Loans or comparable deemed mortgage loans with respect to
those seven
(7) Mortgage Loans). The Park Avenue Plaza Non-Trust Mortgage Loans
(other than
the Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan and the
Park Avenue
Plaza Note 2 Non-Trust Mortgage Loan) are included in the Series FB
2005-1
Securitization involving the issuance of the Series FB 2005-1
Certificates. The
Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan and the Park
Avenue Plaza
Note 2 Non-Trust Mortgage Loan are held by third party
institutional investors.
The relative rights of the respective lenders in respect of the
Park
Avenue Plaza Loan Combination are set forth in a co-lender
agreement dated as of
July 25, 2005 (as amended, restated, supplemented or otherwise
modified from
time to time, the "Park Avenue Plaza Co-Lender Agreement"), between
the holder
of the Mortgage Note for the Park Avenue Plaza Trust Mortgage Loan
and the
respective holders of the Mortgage Notes for the Park Avenue Plaza
Non-Trust
Mortgage Loans. As of the Closing Date, the entire Park Avenue
Plaza Loan
Combination is to be serviced and administered in accordance with a
pooling and
servicing agreement, dated as of August 25, 2005 (together with any
successor
servicing agreement provided for under the Park Avenue Plaza
Co-Lender
Agreement, as any such servicing agreement may be amended,
restated,
supplemented or otherwise modified from time to time, the "Park
Avenue Plaza
Servicing Agreement"), between Morgan Stanley
-8-
Capital I Inc., as depositor, Wells Fargo Bank, National
Association, as master
servicer (in such capacity, and together with any successor master
servicers in
respect of the Park Avenue Plaza Loan Combination, the "Park Avenue
Plaza Master
Servicer"), Wells Fargo Bank, National Association, as special
servicer (in such
capacity, and together with any successor special servicers in
respect of the
Park Avenue Plaza Loan Combination, the "Park Avenue Plaza Special
Servicer"),
LaSalle Bank National Association, as trustee (in such capacity,
and together
with any successor trustees under such pooling and servicing
agreement, the
"Park Avenue Plaza Trustee") and ABN AMRO Bank N.V., as fiscal
agent.
There exist another ten (10) Trust Mortgage Loans (each, a
"Serviced
Note A Trust Mortgage Loan") that, in each 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, a
"Serviced 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 Serviced Note A Trust Mortgage Loan and Serviced Note B
Non-Trust Mortgage
Loan that are secured by the same Mortgage on a particular A/B
Mortgaged
Property will, together, constitute a "Serviced 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 Serviced A/B Loan Combination are set forth in a
co-lender
agreement dated as of a date in August 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 Serviced
Note A Trust Mortgage Loan comprising such Serviced A/B Loan
Combination and the
holder of the Mortgage Note for the Serviced Note B Non-Trust
Mortgage Loan
comprising such Serviced A/B Loan Combination. From and after the
Closing Date,
each Serviced A/B Loan Combination is to be serviced and
administered in
accordance with this Agreement. The table below identifies each
Serviced A/B
Loan Combination by name of the related Mortgaged Property, the
Cut-off Date
Balance of each Serviced Note A Trust Mortgage Loan and Serviced
Note B
Non-Trust Mortgage Loan included in the subject Serviced A/B Loan
Combination
and the holder of the Serviced Note B Non-Trust Mortgage Loan
included in the
subject Serviced A/B Loan Combination.
SERVICED A/B LOAN COMBINATIONS
<TABLE>
CUT-OFF DATE BALANCE OF
CUT-OFF DATE BALANCE OF
HOLDER OF SERVICED
NAME OF A/B
SERVICED NOTE A TRUST
SERVICED NOTE B NON-TRUST
NOTE B NON-TRUST MORTGAGE
MORTGAGED PROPERTY(1)
MORTGAGE LOAN
MORTGAGE LOAN
LOAN(2)
-----------------------
-----------------------
-------------------------
-------------------------
500 West Madison Street
$220,000,000
$25,000,000
Affiliate of Depositor
Polo Towne Center
$ 23,600,000
$ 1,475,000
Affiliate of Depositor
Fairfax Junction
$ 13,425,000
$
635,000
Affiliate of Depositor
Star Plaza
$ 10,060,000
$
785,000
Affiliate of Depositor
McDermott
$
9,870,000
$
705,000
Affiliate of Depositor
Kiln Creek
$
8,140,000
$
615,000
Affiliate of Depositor
Centre Court
$
7,720,000
$
525,000
Affiliate of Depositor
401 Frederick
$
6,880,000
$
387,500
Affiliate of Depositor
Ulster Terrace
$
6,565,000
$
515,000
Affiliate of Depositor
Lexington Commons
$
5,475,000
$
135,000
Affiliate of Depositor
</TABLE>
----------
-9-
(1)
Reflects property identified by that name on the Trust Mortgage
Loan
Schedule.
(2)
As of Closing Date.
Accordingly, as and to the extent provided herein, (i) the 200 Park
Avenue Trust Mortgage Loan, although part of the Trust Fund, will
be serviced
and administered in accordance with the 200 Park Avenue Servicing
Agreement, by
the 200 Park Avenue Master Servicer and the 200 Park Avenue Special
Servicer,
(ii) the Courtyard by Marriott Trust Mortgage Loan, although part
of the Trust
Fund, will be serviced and administered in accordance with the
Courtyard by
Marriott Servicing Agreement, by the Courtyard by Marriott Master
Servicer and
the Courtyard by Marriott Special Servicer, (iii) the 1345 Avenue
of the
Americas Trust Mortgage Loan, although part of the Trust Fund, will
be serviced
and administered in accordance with the 1345 Avenue of the Americas
Servicing
Agreement, by the 1345 Avenue of the Americas Master Servicer and
the 1345
Avenue of the Americas Special Servicer, and (iv) the Park Avenue
Plaza Trust
Mortgage Loan, although part of the Trust Fund, will be serviced
and
administered in accordance with the Park Avenue Plaza Servicing
Agreement, by
the Park Avenue Plaza Master Servicer and the Park Avenue Plaza
Special
Servicer. The Serviced Note B Non-Trust Mortgage, although not part
of the Trust
Fund, will be serviced hereunder by the Master Servicer and the
Special
Servicer.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent hereby agree, in each case, as follows:
-10-
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.
"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
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 Trust
Master Servicer Remittance Date or such Distribution Date, as the
case may be,
occurs (or, in the case of each of 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 Trust Master Servicer
Remittance Date or
such Distribution Date, as the case may be, occurs.
"200 Park Avenue Determination Date" shall mean the "Remittance
Date"
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 Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"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.
-11-
"200 Park Avenue Note A-1 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"200 Park Avenue Note A-1 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-1 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 Servicer" shall mean the 200 Park Avenue Master
Servicer or the 200 Park Avenue Special Servicer, as applicable.
"200 Park Avenue Servicing Agreement" shall have the meaning
assigned
thereto in the Preliminary Statement.
"200 Park Avenue Special Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"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.
"200 Park Avenue Trustee" shall have the meaning assigned thereto
in
the Preliminary Statement.
"200 Park Avenue Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer
Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the
initial 200 Park
Avenue Servicing Agreement) with respect to the 200 Park Avenue
Loan Combination
that ends in the calendar month in which such Distribution Date or
Trust Master
Servicer Remittance Date, as the case may be, occurs.
"500 West Madison Change of Control Event" shall mean any Serviced
Loan Combination Change of Control Event with respect to the 500
West Madison
Loan Combination.
"500 West Madison Co-Lender Agreement" shall mean the Co-Lender
Agreement dated as of August 11, 2005, between Lehman Brothers
Bank, FSB as
holder of the Mortgage Note for the 500 West Madison Trust Mortgage
Loan and
Lehman Brothers Bank, FSB as holder of the Mortgage Note for the
500 West
Madison Note B Non-Trust Mortgage Loan.
-12-
"500 West Madison Collection Period" shall mean, with respect to
any
500 West Madison Master Servicer Remittance Date, any Trust Master
Servicer
Remittance Date or any Distribution Date, the period commencing on
the day
immediately following the 500 West Madison Determination Date in
the calendar
month preceding the month in which such 500 West Madison 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 500
West Madison Master Servicer Remittance Date, the initial Trust
Master Servicer
Remittance Date or the initial Distribution Date, commencing
immediately
following the Cut-off Date) and ending on and including the 500
West Madison
Determination Date in the calendar month in which such 500 West
Madison Master
Servicer Remittance Date, such Trust Master Servicer Remittance
Date or such
Distribution Date, as the case may be, occurs.
"500 West Madison Controlling Party" shall mean the Serviced Loan
Combination Controlling Party with respect to the 500 West Madison
Loan
Combination.
"500 West Madison Cure Rights" shall mean the Cure Rights granted
to
the 500 West Madison Note B Non-Trust Mortgage Loan Noteholder
under Article VII
of the 500 West Madison Co-Lender Agreement.
"500 West Madison Determination Date" shall have the same meaning
as
Trust Determination Date.
"500 West Madison Directing Lender" shall mean the Serviced Loan
Combination Directing Lender with respect to the 500 West Madison
Loan
Combination.
"500 West Madison Loan Combination" shall mean the Serviced Loan
Combination consisting of the 500 West Madison Trust Mortgage Loan
and the 500
West Madison Note B Non-Trust Mortgage Loan (or any successor REO
Mortgage Loans
with respect thereto).
"500 West Madison Master Servicer Remittance Date" shall have the
same
meaning as Trust Master Servicer Remittance Date.
"500 West Madison Mortgage Loan" shall mean the 500 West Madison
Trust
Mortgage Loan or the 500 West Madison Note B Non-Trust Mortgage
Loan, as
applicable.
"500 West Madison Mortgaged Property" shall mean the Mortgaged
Property identified on the Trust Mortgage Loan Schedule as 500 West
Madison
Street.
"500 West Madison Note B Non-Trust Mortgage Loan" shall mean the
mortgage loan that is, together with the 500 West Madison Trust
Mortgage Loan,
secured by the same Mortgage on the 500 West Madison Mortgaged
Property.
"500 West Madison Note B Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or the collective holders) of the Mortgage Note
for the 500
West Madison Note B Non-Trust Mortgage Loan.
"500 West Madison Noteholders" shall mean the holder of the
Mortgage
Note for the 500 West Madison Trust Mortgage Loan, together with
the 500 West
Madison Note B Non-Trust Mortgage Loan Noteholder.
-13-
"500 West Madison Special Servicer" shall mean any special servicer
hereunder responsible for special servicing the 500 West Madison
Loan
Combination or any related REO Property; provided that, if such
special servicer
has special servicing responsibilities with respect to other
Serviced Mortgage
Loans and/or Administered REO Properties, then the term 500 West
Madison Special
Servicer shall refer to such party only to the extent of its
rights, duties and
obligations in respect of the 500 West Madison Loan Combination or
any related
REO Property.
"500 West Madison Trust Mortgage Loan" shall mean the Trust
Mortgage
Loan that is secured by the 500 West Madison Mortgaged Property and
that is
identified on the Trust Mortgage Loan Schedule by loan number 3.
"1345 Avenue of the Americas Co-Lender Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Collection Period" shall mean, with
respect to any Trust Master Servicer Remittance Date or any
Distribution Date,
the period commencing on the day immediately following the 1345
Avenue of the
Americas Determination Date in the calendar month preceding the
calendar month
in which 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
Trust Master
Servicer Remittance Date and the initial Distribution Date,
commencing
immediately following the Cut-off Date) and ending on and including
the 1345
Avenue of the Americas Determination Date in the calendar month in
which such
Trust Master Servicer Remittance Date or such Distribution Date, as
the case may
be, occurs.
"1345 Avenue of the Americas Determination Date" shall mean the
"Business Day" (within the meaning of the initial 1345 Avenue of
the Americas
Servicing Agreement) following the eighth calendar day of each
month, commencing
in September 2005.
"1345 Avenue of the Americas Loan Combination" shall have the
meaning
assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Master Servicer" shall have the
meaning
assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Mortgage Loan" shall mean the 1345
Avenue
of the Americas Trust Mortgage Loan or any 1345 Avenue of the
Americas Non-Trust
Mortgage Loan, as applicable.
"1345 Avenue of the Americas Mortgaged Property" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Non-Trust Mortgage Loan Noteholder"
shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the 1345 Avenue of the Americas Non-Trust Mortgage Loan.
"1345 Avenue of the Americas Non-Trust Mortgage Loans" shall have
the
meaning assigned thereto in the Preliminary Statement.
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"1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage Loan"
shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A1 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the
collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A1
Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage Loan"
shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A3 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the
collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A3
Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage Loan"
shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 1-A4 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the
collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 1-A4
Non-Trust
Mortgage Loan.
"1345 Avenue of the Americas Note 1-B/C Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the
collective holders) of
the Mortgage Note for a 1345 Avenue of the Americas 1- B/C
Non-Trust Mortgage
Loan.
"1345 Avenue of the Americas Note 1-B/C Non-Trust Mortgage Loans"
shall have the meaning assigned thereto in the Preliminary
Statement.
"1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan" shall
have the meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Note 2 Non-Trust Mortgage Loan
Noteholder" shall mean the holder (or, if applicable, the
collective holders) of
the Mortgage Note for the 1345 Avenue of the Americas Note 2
Non-Trust Mortgage
Loan.
"1345 Avenue of the Americas Noteholders" shall mean, collectively,
the holder of the Mortgage Note for the 1345 Avenue of the Americas
Trust
Mortgage Loan, together with the 1345 Avenue of the Americas
Non-Trust Mortgage
Loan Noteholders.
"1345 Avenue of the Americas Servicer" shall mean the 1345 Avenue
of
the Americas Master Servicer or the 1345 Avenue of the Americas
Special
Servicer.
"1345 Avenue of the Americas Servicing Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"1345 Avenue of the Americas Special Servicer" shall have the
meaning
assigned thereto in the Preliminary Statement.
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"1345 Avenue of the Americas 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 12
and is,
together with the 1345 Avenue of the Americas Non-Trust Mortgage
Loans, secured
by the same Mortgage on the 1345 Avenue of the Americas Mortgaged
Property.
"1345 Avenue of the Americas Trustee" shall have the meaning
assigned
thereto in the Preliminary Statement.
"1345 Avenue of the Americas Underlying Collection Period" shall
mean,
with respect to any Distribution Date or Trust Master Servicer
Remittance Date,
the "Due Period" (within the meaning of the initial 1345 Avenue of
the Americas
Servicing Agreement) with respect to the 1345 Avenue of the
Americas Loan
Combination that ends in the calendar month in which such
Distribution Date or
Trust Master Servicer Remittance Date, as the case may be, occurs.
"A/B Co-Lender Agreement" shall have the meaning assigned thereto
in
the Preliminary Statement.
"A/B Mortgaged Property" shall have the meaning assigned thereto in
the Preliminary Statement.
"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.
"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 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 (b) in the case of either 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 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 either Class of
Interest-Only
Certificates, the amount of which
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interest shall equal, 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 REMIC III Component of a Class of
Interest-Only
Certificates 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 (or, in the case of an Outside Administered REO
Property, acquired
for the benefit of) 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).
"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
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or an Interest Reserve REO Mortgage Loan, for any Interest Accrual
Period, an
amount of interest equal to the product of (a) the Mortgage Rate
for 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 and, in the case of an Outside
Serviced
Trust Mortgage Loan, reduced by the Actual/360 Equivalent of the
related Outside
Servicing Fee Rate), 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 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. For purposes of clause (a) of the prior
sentence, the term
"Actual/360 Equivalent of the related Outside Servicing Fee Rate"
means a rate
per annum equal to the product of (a) the subject Outside Servicing
Fee Rate,
multiplied by (b) a fraction, expressed as a percentage, the
numerator of which
is 30 and the denominator of which is the number of days in the
applicable
Interest Accrual Period.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to (a) the Principal
Distribution Amount for
such Distribution Date, plus (b) all amounts to be added to such
Principal
Distribution Amount pursuant to Section 1.03(c) for such
Distribution Date,
minus (c) all amounts to be subtracted from such 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, 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.
"Administered REO Property" shall mean any REO Property other than,
if
applicable, any Outside Administered REO Property.
"Administrative Cost Rate" shall mean: (a) with respect to each
Outside Serviced Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan
with respect thereto), the sum of (i) the related Outside Servicing
Fee Rate,
(ii) the Trustee Fee Rate, and (iii) the related Master Servicing
Fee Rate; and
(b) with respect to each other Trust Mortgage Loan (or any
successor REO Trust
Mortgage
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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, 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.
"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
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 Serviced Trust Mortgage Loan or Serviced 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
Serviced Trust
Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan
Combination, as
applicable, remains a Required Appraisal Loan) equal to the excess,
if any, of:
(a) the sum of,
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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, and (vi) all currently due and unpaid real estate
taxes and
assessments, insurance premiums and, if applicable, ground rents,
and any
unfunded improvement or other applicable reserves, in respect of
the related
Mortgaged Property or REO Property, as the case may be (in each
case, net of any
amounts escrowed with the Master Servicer or the Special Servicer
for such
items); over (b) the Required Appraisal Value. Notwithstanding the
foregoing, if
(i) any Serviced Trust Mortgage Loan or Serviced 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 Serviced
Trust Mortgage Loan or Serviced 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 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 Serviced Trust Mortgage Loan or Serviced 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.
Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated between or among, as
the case may
be, the respective Mortgage Loans comprising the subject Serviced
Loan
Combination, by the Master Servicer pursuant to this Agreement and
consistent
with the related Co-Lender Agreement; and the related Serviced
Non-Trust
Mortgage Loan Noteholder(s) shall be entitled to rely on such
calculations, and
the allocations to the subject Serviced 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.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Serviced Trust Mortgage Loan or Serviced Loan
Combination, as
applicable, ceases to be a Required Appraisal Loan, and no
Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any
successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan
Combination after
it has been paid in full, liquidated, repurchased or otherwise
disposed of.
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Notwithstanding the foregoing, in the case of an Outside Serviced
Loan
Combination, the term "Appraisal Reduction Amount" shall have the
meaning
assigned to that term or any analogous term in the related Outside
Servicing
Agreement. Further notwithstanding the foregoing, any Appraisal
Reduction Amount
with respect to an Outside Serviced Loan Combination shall be
calculated, and
allocated between the respective Mortgage Loans comprising such
Outside Serviced
Loan Combination by the applicable Outside Servicer pursuant to the
related
Outside Servicing Agreement; and the parties hereto shall be
entitled to rely on
such calculations, and the allocations to the Trust Mortgage Loan
or REO Trust
Mortgage Loan, as applicable, in such Outside Serviced Loan
Combination, as
reported to them by the applicable Outside 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 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 then Maturity Date as of which
such Mortgage
Loan remains outstanding and part of the Trust Fund (or, in the
case of a
Serviced 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
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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
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
-22-
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.
"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.
-23-
"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-C5, Commercial Mortgage Pass-Through Certificates,
Series 2005-C5, 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 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 (which may be an
Affiliate of the
Special Servicer) as are specifically set forth in this Agreement
with respect
to any consent, approval or
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waiver required or permitted to be made by the Controlling Class
Representative
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, the CMSA Investor Reporting Package and any
reports
comparable to the foregoing with respect to an Outside Serviced
Trust Mortgage
Loan or any related REO Property that are deliverable to the
Trustee (or to the
Master Servicer on behalf of the Trustee), as holder of the
Mortgage Note for
such Outside Serviced Trust Mortgage Loan.
"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
or all of the
Holders of Certificates bearing the same alphabetic or
alphanumeric, as
applicable, class designation, as the context may require.
"Class A Certificate" shall mean any of the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M and Class
A-J
Certificates.
"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-1A Certificate" shall mean any one of the Certificates
with a
"Class A-1A" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" 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.
-25-
"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 B Through T Certificate" shall mean any 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 or Class T Certificate.
"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.
"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-5 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.
-26-
"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 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.
-27-
"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.
"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 43
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CL REMIC III Component" shall mean any of the 43 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 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 alphabetic
and
alphanumeric designations: X-CL-A-1-1; X-CL-A-1-2; X-CL-A-1A-1;
X-CL-A-1A-2;
X-CL-A-1A-3; X-CL-A-1A-4; X-CL-A-1A-5; X-CL-A-1A-6; X-CL-A-1A-7;
X-CL-A-1A-8;
X-CL-A-2-1; X-CL-A-2-2; X-CL-A-2-3; X-CL-A-2-4; X-CL-A-3;
X-CL-A-AB; X-CL-A-4-1;
X-CL-A-4-2; X-CL-A-4-3; X-CL-A-4-4; X-CL-A-M; X-CL-A-J; X-CL-B;
X-CL-C-1;
X-CL-C-2; X-CL-D-1; X-CL-D-2; X-CL-E; X-CL-F-1; X-CL-F-2; X-CL-G-1;
X-CL-G-
-28-
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 33
separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the 33 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".
-29-
"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
August 2006
X-CP-A-1A-2
August 2006
X-CP-A-1A-3
August 2007
X-CP-A-1A-4
August 2008
X-CP-A-1A-5
August 2009
X-CP-A-1A-6
August 2010
X-CP-A-1A-7
August 2011
X-CP-A-1A-8
August 2012
X-CP-A-2-1
August 2006
X-CP-A-2-2
August 2007
X-CP-A-2-3
August 2008
X-CP-A-2-4
August 2009
X-CP-A-3
August 2009
X-CP-A-AB
August 2009
X-CP-A-4-1
August 2009
X-CP-A-4-2
August 2010
X-CP-A-4-3
August 2011
X-CP-A-4-4
August 2012
X-CP-A-M
August 2012
X-CP-A-J
August 2012
X-CP-B
August 2012
X-CP-C-1
August 2011
X-CP-C-2
August 2012
X-CP-D-1
August 2010
X-CP-D-2
August 2011
X-CP-E
August 2010
X-CP-F-1
August 2009
X-CP-F-2
August 2010
X-CP-G-1
August 2008
X-CP-G-2
August 2009
X-CP-H
August 2008
X-CP-J-1
August 2007
X-CP-J-2
August 2008
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean August 25, 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
-30-
whose principal membership consists of servicers, trustees,
issuers, placement
agents and underwriters generally involved in the commercial
mortgage loan
securitization industry, which is the principal such association or
organization
in the commercial mortgage loan securitization industry and one of
whose
principal purposes is the establishment of industry standards for
reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be 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. In connection with
preparing the
CMSA Comparative Financial Status Report, the Master Servicer shall
process (a)
interim financial statements beginning with interim financial
statements for the
fiscal quarter ending December of 2005, and (b) annual financial
statements
beginning with annual financial statements for the 2005 fiscal
year.
"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
-31-
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.
"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
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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 Serviced
Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage
Loans and,
if they relate to Administered REO Properties, 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
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 200 Park Avenue Co-
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Lender Agreement, the Courtyard by Marriott Co-Lender Agreement,
the 1345 Avenue
of the Americas Co-Lender Agreement, the Park Avenue Plaza
Co-Lender Agreement,
the 500 West Madison Co-Lender Agreement and the other 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-C5, Commercial Mortgage
Pass-Through
Certificates, Series 2005-C5".
"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 200 Park Avenue Trust Mortgage Loan, the Courtyard by
Marriott
Trust Mortgage Loan, the 1345 Avenue of the Americas Trust Mortgage
Loan, the
Park Avenue Plaza Trust Mortgage Loan, the 500 West Madison Trust
Mortgage Loan
and the other Serviced 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 either Class of Interest-Only
Certificates accrues
interest, which, as of any date of determination, is equal to the
then current
Uncertificated Principal Balance of such REMIC III Component's
Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds" 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.
"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 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 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 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.
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"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
"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-C5.
"Corrected Mortgage Loan" shall mean any Serviced Mortgage Loan
that
had been a Specially Serviced Mortgage Loan but has ceased to be
such in
accordance with the definition of "Specially Serviced Mortgage
Loan" (other than
by reason of a Liquidation Event occurring in respect of such
Serviced Mortgage
Loan or the related Mortgaged Property's becoming an REO Property).
None of the
Mortgage Loans comprising an Outside Serviced Loan Combination
shall constitute
a Corrected Mortgage Loan under this Agreement.
"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-1A-" shall be a Corresponding REMIC II Regular
Interest with
respect to the Class A-1A 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-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 "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 "D-" shall be a Corresponding REMIC II
Regular Interest
with respect to the Class D Certificates, each REMIC II Regular
Interest with an
alphanumeric designation that begins "F-" shall be a Corresponding
REMIC II
Regular Interest with respect to the Class F Certificates, 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; and (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
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the alphabetic or alphanumeric, as the case may be, designation for
such Class
X-CP 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 Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Collection Period" shall mean, with respect
to
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 Trust Master Servicer Remittance Date or such Distribution
Date, as the
case may be, occurs (or, in the case of each of 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
Trust Master Servicer Remittance Date or such Distribution Date, as
the case may
be, occurs.
"Courtyard by Marriott Determination Date" shall mean the
"Remittance
Date" 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 Master Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Mortgage Loan" shall mean the Courtyard by
Marriott Trust Mortgage Loan or any 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-Trust Mortgage Loan Noteholder" shall
mean
the holder (or, if applicable, the collective holders) of the
Mortgage Note for
the 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-1 Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
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"Courtyard by Marriott Note A-1 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-1 Non-Trust
Mortgage Loan.
"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 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, collectively, 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 Servicer" shall mean the Courtyard by
Marriott
Master Servicer or the Courtyard by Marriott Special Servicer.
"Courtyard by Marriott Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Courtyard by Marriott Special Servicer" shall have the meaning
assigned thereto in the Preliminary Statement.
"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 Loans, secured by
the same
Mortgage on the Courtyard by Marriott Mortgaged Property.
"Courtyard by Marriott Trustee" shall have the meaning assigned
thereto in the Preliminary Statement.
"Courtyard by Marriott Underlying Collection Period" shall mean,
with
respect to any Distribution Date or Trust Master Servicer
Remittance Date, the
"Loan Combination Collection Period" (within the meaning of the
initial
Courtyard by Marriott Servicing Agreement) with respect to the
Courtyard by
Marriott Loan Combination that ends in the calendar month in which
such
Distribution Date or Trust Master Servicer Remittance Date, as the
case may be,
occurs.
"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,
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(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.
"Custodial Account" shall mean the Pool Custodial Account or any
Loan
Combination Custodial Account.
"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 August 11, 2005, the related date of origination
of such
Mortgage Loan; and (ii) for every other Mortgage Loan, August 11,
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 Serviced Non-Trust Mortgage Loan Noteholder) in
respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
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
Serviced
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; and (b) with
respect to any
Outside Serviced Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan
with respect thereto), any amounts Received by the Trust thereon
that represent
"Default Interest" as defined under the related Outside Servicing
Agreement or,
if not defined therein, as defined under the related Co-Lender
Agreement.
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"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 Serviced Trust Mortgage Loan" shall mean any Defeasance
Trust Mortgage Loan that is also a Serviced Trust Mortgage Loan.
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"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
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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.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants
thereof, the
management or operation of such Administered 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 Administered 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 Administered 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 Administered 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 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
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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 portion of the Net Aggregate Prepayment Interest
Shortfall,
if any, for each Distribution Date that is allocable to each Class
of Regular
Interest Certificates shall equal 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,
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 for
the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either 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 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
September 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.
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"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
"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 at least "AA-" by Fitch (or, in the case of either Rating
Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any Class
of Certificates that is rated by such Rating Agency, as evidenced
in writing by
such Rating Agency) 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 "A-1" by S&P and at least "F-1" by Fitch (or, in the
case of either
Rating Agency, such lower rating as will not result in an Adverse
Rating Event
with respect to any Class of Certificates that is rated by such
Rating Agency,
as evidenced in writing by such Rating Agency) 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 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 that is rated by
either Rating
Agency, as evidenced in writing by such Rating Agency.
"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 Serviced
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
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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.
"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 Administered 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
Serviced 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-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5".
"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.
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"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
Administered 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 Administered REO Property, as the case may be, that was the
subject of a
Permitted Purchase; and provided, further, that the term "Final
Recovery
Determination" shall include any comparable determination made with
respect to
an Outside Serviced Trust Mortgage Loan or any related REO Property
by the
related Outside Special Servicer pursuant to the related Outside
Servicing
Agreement.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein
provided.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence,
"Fitch" shall
be deemed to refer to such other nationally recognized statistical
rating agency
or other comparable Person designated by the Depositor, notice of
which
designation shall be given to the Trustee, the Fiscal Agent, the
Master Servicer
and the Special Servicer, and specific ratings of Fitch, Inc.
herein referenced
shall be deemed to refer to the equivalent ratings of the party so
designated.
"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 the 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.
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"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.
"Group 1 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
identified on the Trust Mortgage Loan Schedule as belonging to Loan
Group No. 1.
"Group 2 Trust Mortgage Loan" shall mean any Trust Mortgage Loan
identified on the Trust Mortgage Loan Schedule as belonging to Loan
Group No. 2.
"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,
any Controlling
Class Certificateholder, any Non-Trust Mortgage Loan Noteholder and
any and all
Affiliates thereof, (ii) does not have any direct financial
interest in or any
material indirect financial interest in any of the Depositor, any
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling
Class
Certificateholder, 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 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 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
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
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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
Serviced Loan Combination is involved, to the related Serviced
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 Serviced Loan Combination is involved, by
the related
Serviced 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
Administered REO Property by such Person, subject to any conditions
therein
specified, that is otherwise herein contemplated to be taken by an
Independent
Contractor, will not cause such Administered REO Property to cease
to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for
purposes of Section 860D(a) of the Code, or cause any income
realized in respect
of such Administered 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.
"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.
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"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
and Class X-CP 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
Trustee, in
trust for the registered holders of LB-UBS Commercial Mortgage
Trust 2005-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5".
"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,
and net of the Actual/360 Equivalent of the related Outside
Servicing Fee Rate,
in the case of an Outside Serviced Trust Mortgage Loan or any
successor REO
Trust Mortgage Loan with respect thereto) 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. For purposes
of the prior
sentence, the term "Actual/360 Equivalent of the related Outside
Servicing Fee
Rate" means a rate per annum equal to the product of (a) the
subject Outside
Servicing Fee Rate, multiplied by (b) a fraction, expressed as a
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percentage, the numerator of which is 30 and the denominator of
which is the
number of days in the related Interest Accrual Period.
"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 Serviced 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 Account, and if such
funds are to
be transferred to another Investment Account or distributed to
Certificateholders or any Serviced 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.
"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
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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 August 15,
2005, between
LBHI and the Depositor.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by LBHI to the Depositor, pursuant to the
LBHI/Depositor Mortgage
Loan Purchase Agreement.
"LB-UBS Series 2005-C3 Certificates" shall have the meaning
assigned
thereto in the Preliminary Statement.
"LB-UBS Series 2005-C3 Securitization" shall have the meaning
assigned
thereto in the Preliminary Statement.
"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.
"Lehman Mortgage Loan Seller" shall mean: (a) LBHI in matters
relating
to a LBHI Trust Mortgage Loan; and (b) LUBS 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 Trust
Mortgage
Loan or Serviced Non-Trust 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
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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 Administered 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 Administered
REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or Administered 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 Serviced Loan Combination or any
related
Administered REO Property, collected on behalf of the Trust and/or
the related
Serviced 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.
"LNR" shall mean LNR Partners, Inc. or its successor in interest.
"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 200 Park
Avenue Loan Combination, the Courtyard by Marriott Loan
Combination, the 1345
Avenue of the Americas Loan Combination, the Park Avenue Plaza Loan
Combination,
the 500 West Madison Loan Combination and the other Serviced A/B
Loan
Combinations.
"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, (iii) the
1345 Avenue of the Americas Collection Period with respect to the
1345 Avenue of
the Americas Loan Combination and all related matters, (iv) the
Park Avenue
Plaza Collection Period with respect to the Park Avenue Plaza Loan
Combination
and all related matters, and (v) the Trust Collection Period with
respect to
each other Loan Combination and all related matters.
"Loan Combination Custodial Account" shall mean, with respect to
each
Serviced 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 Serviced
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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, (iii) the
1345 Avenue of the Americas Determination Date with respect to the
1345 Avenue
of the Americas Loan Combination and all related matters, (iv) the
Park Avenue
Plaza Determination Date with respect to the Park Avenue Plaza Loan
Combination
and all related matters, (v) 500 West Madison Determination Date
with respect to
the 500 West Madison Loan Combination and all related matters, and
(vi) the
Trust Determination Date with respect to each other Loan
Combination and all
related matters.
"Loan Combination Master Servicer Remittance Date" shall mean, with
respect to any Serviced Loan Combination, the date of each month,
commencing in
September 2005, on which, among other things, the Master Servicer
is required to
make normal monthly remittances to the related Serviced Non-Trust
Mortgage Loan
Noteholder(s), which date shall be the Business Day immediately
preceding the
Distribution Date in such month.
"Loan Combination REO Account" shall mean, with respect to each
Serviced 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 Serviced Loan
Combination, which
shall be 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
Serviced 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 Group" shall mean either of Loan Group No. 1 or Loan Group
No.
2.
"Loan Group No. 1" shall mean, collectively, all of the Trust
Mortgage
Loans that are Group 1 Trust Mortgage Loans and any successor REO
Trust Mortgage
Loans with respect thereto.
"Loan Group No. 2" shall mean, collectively, all of the Trust
Mortgage
Loans that are Group 2 Trust Mortgage Loans and any successor REO
Trust Mortgage
Loans with respect thereto.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached
hereto, and
setting forth for each Serviced Mortgage Loan
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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.
"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.
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"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.
"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-C5, Commercial Mortgage Pass-Through
Certificates, Series
2005-C5, 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 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(n);
(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(m);
(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(l), 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
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Class Principal Balance of such Class of Certificates on all prior
Distribution Dates, if any, pursuant to Section 4.05(a).
"LUBS" shall mean LUBS, Inc.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of August 15,
2005, between
LUBS as mortgage loan seller, LBHI as an additional party and the
Depositor.
"LUBS Trust Mortgage Loans" shall mean any Trust Mortgage Loan
transferred by LUBS to the Depositor, pursuant to the
LUBS/Depositor Mortgage
Loan Purchase Agreement.
"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 Wachovia, 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
Serviced Loan
Combination and all related matters, and (ii) the Trust Master
Servicer
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Remittance Date with respect to the Mortgage Pool (exclusive of the
Serviced
Combination Trust Mortgage Loans and any REO Trust Mortgage Loans
with respect
to the Serviced Combination Trust Mortgage Loans) and all related
matters.
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any REO Mortgage Loan with respect thereto) and
each Outside
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage
Loan with
respect thereto), 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
Serviced 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; (b) with respect to each Outside
Serviced Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto),
0.01% per annum; and (c) with respect to each Serviced Non-Trust
Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), 0.01%
per annum.
"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 Serviced 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.
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"Monthly Payment" shall mean, with respect to any Trust Mortgage
Loan
or Serviced Non-Trust 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 (or, in the case of an Outside
Serviced Trust
Mortgage Loan, by the applicable Outside Servicer pursuant to the
related
Outside Servicing Agreement), including any Balloon Payment payable
in respect
of such Mortgage Loan on such Due Date; provided that the Monthly
Payment due in
respect of any Mortgage Loan shall not include Default Interest;
and provided,
further, that the Monthly Payment due in respect of any ARD
Mortgage Loan after
its Anticipated Repayment Date shall not include Additional
Interest; and
provided, further, that if the related loan documents for any
Serviced 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.
"Moody's" shall mean Moody's Investors Service, Inc. or its
successor
in interest.
"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:
(a) with respect to any Serviced Trust Mortgage Loan and, in the
case
of each Serviced Loan Combination, also with respect to each
Serviced
Non-Trust Mortgage Loan that is part of such Loan Combination, the
following documents collectively (which, in the case of each
Serviced Loan
Combination, except for the Mortgage Notes referred to in clause
(a)(i) of
this definition and any modifications thereof referred to in clause
(a)(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-C5, Commercial Mortgage
Pass-Through Certificates, Series 2005-C5" 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 Serviced Loan Combination, a copy of the executed
Mortgage Note for each Serviced Non-Trust Mortgage Loan in such
Loan Combination;
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(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;
(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-C5, Commercial Mortgage Pass-Through
Certificates, Series 2005-C5" (or, in the case of a Serviced 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-C5, Commercial Mortgage
Pass-Through Certificates, Series 2005-C5, and in its capacity as
lead lender on behalf of the [IDENTIFY RELATED SERVICED 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-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" (or, in the
case of a Serviced 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-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
and in its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED 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;
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(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;
(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 Serviced 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-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" (or, in the
case of a Serviced 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-C5,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
and in its capacity as lead lender on behalf of the [IDENTIFY
RELATED SERVICED 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
(a)(iv) or clause (a)(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-C5, Commercial Mortgage Pass-Through Certificates, Series
2005-C5" (or, in the case of a Serviced Loan Combination, in
favor of "LaSalle Bank National Association, in its capacity as
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trustee for the registered holders of LB-UBS Commercial Mortgage
Trust 2005-C5, Commercial Mortgage Pass-Through Certificates,
Series 2005-C5, and in its capacity as lead lender on behalf of
the [IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(xvii) if such Trust Mortgage Loan is a Serviced 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
(xx) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter (if
any); and
(b) with respect to each Outside Serviced Trust Mortgage Loan, the
following documents collectively:
(i)
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-C5, Commercial
Mortgage Pass-Through Certificates, Series 2005-C5" 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);
(ii) a copy of the executed related Co-Lender Agreement; and
(iii) a copy of the executed related Outside Servicing Agreement;
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 (a)(vii) through (a)(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, including, in
the case of
an Outside Serviced Loan Combination, any such documents held by or
on behalf of
a related Non-Trust Mortgage Loan Noteholder.
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"Mortgage Loan Origination Documents" shall mean, with respect to
any
Serviced Trust Mortgage Loan, any of the following documents (other
than any
document that constitutes part of the Mortgage File for such
Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced 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 Serviced 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 Serviced Trust
Mortgage
Loan, (b) relates to the administration or servicing of such
Serviced Trust
Mortgage Loan, (c) is reasonably necessary for the ongoing
administration and/or
servicing of such Serviced 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 Serviced
Trust
Mortgage Loan is a Lehman Trust Mortgage Loan) or the UBS Mortgage
Loan Seller
(if such Serviced 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 , the LUBS/Depositor Mortgage Loan
Purchase
Agreement or the UBS/Depositor Mortgage Loan Purchase Agreement, as
applicable.
"Mortgage Loan Seller" shall mean a 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.
"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-6 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.
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"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the related
annualized
rate at which interest is scheduled (in the absence of a default)
to accrue on
such Mortgage Loan from time to time in accordance with the related
Mortgage
Note and applicable law, as such rate may be modified in accordance
with Section
3.20 (or, in the case of a Mortgage Loan that is part of an Outside
Serviced
Loan Combination, by the applicable Outside Servicer in accordance
with the
related Outside Servicing Agreement) 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 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
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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 Administered 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 Serviced
Non-Trust
Mortgage Loan Noteholder) with respect to any Mortgage Loan or REO
Mortgage
Loan, net of any Workout Fee or Liquidation Fee payable in
connection with the
receipt thereof.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including
any lease
renewed, modified or extended on behalf of the Trustee and, in the
case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage
Loan
Noteholder(s).
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or
Nonrecoverable Servicing Advance.
"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 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 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 Serviced Mortgage Loan or Administered 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
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Mortgage Loan (or, if such Mortgage Loan is part of a Serviced
Loan Combination, on or in respect of such Loan Combination) or
such Administered 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 Administered
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 Serviced Loan
Combination, on or in respect of such Loan Combination) or such
Administered 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 R-I, Class R-II
and Class
R-III 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 200 Park Avenue Non-Trust Mortgage Loans, the
Courtyard by
Marriott Non-Trust Mortgage Loans, the 1345 Avenue of the Americas
Non-Trust
Mortgage Loans, the Park Avenue Plaza Non-Trust Mortgage Loans, the
500 West
Madison Note B Non-Trust Mortgage Loan and the other Serviced 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-Trust Mortgage Loan Securities" shall mean any securities
evidencing an interest in, or secured by, a Non-Trust Mortgage Loan
or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Agreement" shall mean any
agreement governing the securitization of a Non-Trust Mortgage Loan
or any
successor REO Mortgage Loan with respect thereto.
"Non-Trust Mortgage Loan Securitization Trust" shall mean any
commercial mortgage securitization trust that is similar to the
Trust and holds
a Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect
thereto.
"Non-United States Securities Person" shall mean a Person that is
not
a United States Securities Person.
"Non-United States Tax Person" shall mean a Person that is not a
United States Tax Person.
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"Offering Memorandum" shall mean the Offering Memorandum dated
August
15, 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 and Class T
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.
"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 $2,344,068,538, in the
case of the
Class X-CL Certificates, and $2,206,083,000, in the case of the
Class X-CP
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.
"Outside Administered REO Property" shall mean any REO Property
relating to an Outside Serviced Loan Combination.
"Outside Master Servicer" shall mean: (i) in the case of the 200
Park
Avenue Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with
respect thereto), the 200 Park Avenue Master Servicer; (ii) in the
case of the
Courtyard by Marriott Trust Mortgage Loan (or any successor REO
Trust Mortgage
Loan with respect thereto), the Courtyard by Marriott Master
Servicer; (iii) in
the case of the 1345 Avenue of the Americas Trust Mortgage Loan (or
any
successor REO Trust Mortgage Loan with respect thereto), the 1345
Avenue of the
Americas Master Servicer; and (iv) in the case of the Park Avenue
Plaza Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto),
the Park Avenue Plaza Master Servicer.
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"Outside Serviced Loan Combination" shall mean the 200 Park Avenue
Loan Combination, the Courtyard by Marriott Loan Combination, the
1345 Avenue of
the Americas Loan Combination or the Park Avenue Plaza Loan
Combination, as
applicable.
"Outside Serviced Mortgage Loan" shall mean any Mortgage Loan that
is
part of an Outside Serviced Loan Combination.
"Outside Serviced Trust Mortgage Loan" shall mean the 200 Park
Avenue
Trust Mortgage Loan, the Courtyard by Marriott Trust Mortgage Loan,
the 1345
Avenue of the Americas Trust Mortgage Loan or the Park Avenue Plaza
Trust
Mortgage Loan, as applicable.
"Outside Servicer" shall mean, in the case of each Outside Serviced
Loan Combination, the related Outside Master Servicer or Outside
Special
Servicer, as applicable.
"Outside Servicer Default" shall mean an "Event of Default" on the
part of an Outside Servicer under an Outside Servicing Agreement.
"Outside Servicing Agreement" shall mean: (i) in the case of the
200
Park Avenue Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto), the 200 Park Avenue Servicing Agreement; (ii) in
the case of
the Courtyard by Marriott Trust Mortgage Loan (or any successor REO
Trust
Mortgage Loan with respect thereto), the Courtyard by Marriott
Servicing
Agreement; (iii) in the case of the 1345 Avenue of the Americas
Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect
thereto), the 1345
Avenue of the Americas Servicing Agreement; and (iv) in the case of
the Park
Avenue Plaza Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with
respect thereto), the Park Avenue Plaza Servicing Agreement
"Outside Servicing Fee" shall mean, with respect to any Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with
respect thereto, the monthly fee, comparable to the Master
Servicing Fee
hereunder and calculated at the related Outside Servicing Fee Rate,
that is
payable to the related Outside Master Servicer (or, if applicable,
to the
related Outside Master Servicer and a primary servicer in the
aggregate).
"Outside Servicing Fee Rate" shall mean: (i) 0.01% per annum, in
the
case of the 200 Park Avenue Trust Mortgage Loan or any successor
REO Trust
Mortgage Loan with respect thereto; (ii) 0.01% per annum, in the
case of the
Courtyard by Marriott Trust Mortgage Loan or any successor REO
Trust Mortgage
Loan with respect thereto, (iii) 0.0025% per annum, in the case of
the 1345
Avenue of the Americas Trust Mortgage Loan or any successor REO
Trust Mortgage
Loan with respect thereto; and (iv) 0.0025% per annum, in the case
of the Park
Avenue Plaza Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with
respect thereto.
"Outside Special Servicer" shall mean: (i) in the case of the 200
Park
Avenue Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with
respect thereto), the 200 Park Avenue Special Servicer; (ii) in the
case of the
Courtyard by Marriott Trust Mortgage Loan (or any successor REO
Trust Mortgage
Loan with respect thereto), the Courtyard by Marriott Special
Servicer; (iii) in
the case of the 1345 Avenue of the Americas Trust Mortgage Loan (or
any
successor REO Trust Mortgage Loan with respect thereto), the 1345
Avenue of the
Americas Special Servicer; and (iv) in the case of the Park Avenue
Plaza Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto),
the Park Avenue Plaza Special Servicer.
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"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Outside Trustee" shall mean: (i) in the case of the 200 Park
Avenue
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect
thereto), the 200 Park Avenue Trustee; (ii) in the case of the
Courtyard by
Marriott Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with
respect thereto), the Courtyard by Marriott Trustee; (iii) in the
case of the
1345 Avenue of the Americas Trust Mortgage Loan (or any successor
REO Trust
Mortgage Loan with respect thereto), the 1345 Avenue of the
Americas Trustee;
and (iv) in the case of the Park Avenue Plaza Trust Mortgage Loan
(or any
successor REO Trust Mortgage Loan with respect thereto), the Park
Avenue Plaza
Trustee.
"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, any advance made by the Master Servicer, the Trustee
or the
Fiscal Agent pursuant to Section 4.03.
"Pari Passu Mortgage Loan" shall mean any Mortgage Loan (or portion
thereof) that (a) is part of an Outside Serviced Loan Combination
and (b) is not
a Subordinate Non-Trust Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan" shall mean any Non-Trust
Mortgage
Loan (or portion thereof) that is a Pari Passu Mortgage Loan.
"Park Avenue Plaza Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Collection Period" shall mean, with respect to
any
Trust Master Servicer Remittance Date or any Distribution Date, the
period
commencing on the day immediately following the Park Avenue Plaza
Determination
Date in the calendar month preceding the calendar month in which
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 Trust Master
Servicer Remittance
Date and the initial Distribution Date, commencing immediately
following the
Cut-off Date) and ending on and including the Park Avenue Plaza
Determination
Date in the calendar month in which such Trust Master Servicer
Remittance Date
or such Distribution Date, as the case may be, occurs.
"Park Avenue Plaza Determination Date" shall mean the "Business
Day"
(within the meaning of the initial Park Avenue Plaza Servicing
Agreement)
following the eighth calendar day of each month, commencing in
September 2005.
"Park Avenue Plaza Loan Combination" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
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"Park Avenue Plaza Mortgage Loan" shall mean the Park Avenue Plaza
Trust Mortgage Loan or any Park Avenue Plaza Non-Trust Mortgage
Loan, as
applicable.
"Park Avenue Plaza Mortgaged Property" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza Non-Trust Mortgage Loan Noteholder" shall mean
the
holder (or, if applicable, the collective holders) of the Mortgage
Note for the
Park Avenue Plaza Non-Trust Mortgage Loan.
"Park Avenue Plaza Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan Noteholder"
shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the Park Avenue Plaza Note 1-A1 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan Noteholder"
shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the Park Avenue Plaza Note 1-A3 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan Noteholder"
shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the Park Avenue Plaza Note 1-A4 Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-B Non-Trust Mortgage Loan Noteholder"
shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for a Park Avenue Plaza Note 1-B Non-Trust Mortgage Loan.
"Park Avenue Plaza Note 1-B Non-Trust Mortgage Loans" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 2 Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Note 2 Non-Trust Mortgage Loan Noteholder" shall
mean the holder (or, if applicable, the collective holders) of the
Mortgage Note
for the Park Avenue Plaza Note 2 Non-Trust Mortgage Loan.
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"Park Avenue Plaza Noteholders" shall mean, collectively, the
holder
of the Mortgage Note for the Park Avenue Plaza Trust Mortgage Loan,
together
with the Park Avenue Plaza Non-Trust Mortgage Loan Noteholders.
"Park Avenue Plaza Servicer" shall mean the Park Avenue Plaza
Master
Servicer or the Park Avenue Plaza Special Servicer.
"Park Avenue Plaza Servicing Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Park Avenue Plaza Special Servicer" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Park Avenue Plaza 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 25
and is,
together with the Park Avenue Plaza Non-Trust Mortgage Loans,
secured by the
same Mortgage on the Park Avenue Plaza Mortgaged Property.
"Park Avenue Plaza Trustee" shall have the meaning assigned thereto
in
the Preliminary Statement.
"Park Avenue Plaza Underlying Collection Period" shall mean, with
respect to any Distribution Date or Trust Master Servicer
Remittance Date, the
"Due Period" (within the meaning of the initial Park Avenue Plaza
Servicing
Agreement) with respect to the Park Avenue Plaza Loan Combination
that ends in
the calendar month in which such Distribution Date or Trust Master
Servicer
Remittance Date, as the case may be, occurs.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates, for any Interest
Accrual Period, 4.741% per annum;
(b) with respect to the Class A-2 Certificates, for any Interest
Accrual Period, 4.885% per annum;
(c) with respect to the Class A-3 Certificates, for any Interest
Accrual Period, 4.964% per annum;
(d) with respect to the Class A-AB Certificates, for any Interest
Accrual Period, 4.930% per annum;
(e) with respect to the Class A-4 Certificates, for any Interest
Accrual Period, 4.954% per annum;
(f) with respect to the Class A-1A Certificates, for any Interest
Accrual Period, 4.946% per annum;
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(g) with respect to the Class A-M 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)
5.017% per annum;
(h) with respect to the Class A-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)
5.057% per annum;
(i) with respect to the Class B 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)
5.127%
per annum;
(j) with respect to the Class C 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)
5.146%
per annum;
(k) with respect to the Class D 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)
5.195%
per annum;
(l) with respect to the Class E 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)
5.225%
per annum;
(m) with respect to the Class F 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)
5.245%
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)
5.350%
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)
5.350%
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)
5.350%
per annum;
(q) with respect to the Class K Certificates, for any Interest
Accrual
Period, an annual rate equal to the Weighted Average REMIC I
Remittance
Rate for such Interest Accrual Period;
(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,
4.750%
per annum;
(s) 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
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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;
(t) 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;
(u) 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; and
(v) 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.
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.
"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
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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 Serviced Mortgage Loan" shall mean any Corrected
Mortgage
Loan and any Serviced Mortgage Loan as to which a Servicing
Transfer Event has
never occurred.
"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
paragraph (viii) of Schedule II.
"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 Rating Agency
(or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any
Class of Certificates 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 Rating Agency (or, in the case of either Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates 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
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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 category of each Rating Agency (or, in the
case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Certificates 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 Rating Agency (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates 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, evidence of which acceptability shall (1) in the
case of any Rating Agency, be evidenced in a writing by such
Rating Agency to the effect that such obligation or security will
not result in an Adverse Rating Event with respect to any Class
of Certificates that is rated by such Rating Agency, or (2)
otherwise be evidenced in a writing by each Rating Agency 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.
"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; or
(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.
"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
Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through
Certificates, Series
2005-C5, 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
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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-C5,
Commercial
Mortgage Pass-Through Certificates, Series 2005-C5, Pool REO
Account".
"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:
(i) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 1 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 with
respect to
Loan Group No. 1 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,
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, with respect to Loan Group No. 1, and the
denominator
of which is equal to the portion, if any, of the Adjusted Principal
Distribution Amount for such Distribution Date that is attributable
to Loan
Group No. 1; and
(ii) with respect to (A) any Distribution Date on which any Net
Prepayment Consideration Received by the Trust on any Group 2 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 with
respect to
Loan Group No. 2 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,
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 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,
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with respect to Loan Group No. 2, and the denominator of which is
equal to
the portion, if any, of the Adjusted Principal Distribution Amount
for such
Distribution Date attributable to Loan Group No. 2.
For purposes of the foregoing, to the extent that distributions of
principal on any Class of Principal Balance Certificates could be
made from
principal amounts allocable to either Loan Group, the Trustee shall
assume that
those distributions of principal on that Class of Principal Balance
Certificates
are made from principal amounts allocable to each Loan Group, on a
pro rata
basis in accordance with the respective principal amounts allocable
to each Loan
Group that were available for distributions of principal on that
Class. In
connection therewith, (i) distributions of principal made with
respect to the
Class A-1A Certificates, pursuant to subclause (i) of clause second
of Section
4.01(a), on any Distribution Date prior to both the Senior Class A
Principal
Distribution Cross-Over Date and the Final Distribution Date, shall
be deemed
made solely from principal amounts allocable to Loan Group No. 2,
and (ii) all
other distributions of principal made with respect to any Class of
Principal
Balance Certificates, pursuant to Section 4.01(a) or 4.01(b), on
any
Distribution Date, shall be deemed made from principal amounts
allocable to both
Loan Groups (net of any principal amounts allocable to Loan Group
No. 2 that may
have been applied on such Distribution Date as contemplated by
clause (i) of
this sentence).
"Prepayment Interest Excess" shall mean: (a) with respect to any
Serviced Mortgage Loan that was subject to a Principal Prepayment
in full or in
part made (or, if resulting from the application of Insurance
Proceeds or
Condemnation Proceeds, any other early recovery of principal
received) after 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); and (b) with respect to any Outside
Serviced Trust
Mortgage Loan that was subject to a Principal Prepayment in full or
in part made
(or, if resulting from the application of Insurance Proceeds or
Condemnation
Proceeds, any other early recovery of principal received) after its
Due Date in
any applicable Underlying Collection Period, any payment of
interest (net of
related Master Servicing Fees and any comparable related servicing
fees payable
under the related Outside Servicing Agreement) 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).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or
in part made
(or, if resulting from the application of Insurance Proceeds or
Condemnation
Proceeds, any other early recovery of principal received) prior to
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); and
(b) with
respect to any Outside Serviced Trust Mortgage Loan that was
subject to a
Principal Prepayment in full
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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 Underlying 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 by the related Outside Servicing Fee 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 8739
Research Drive, URP4, Charlotte, North Carolina 28262-1075 and the
Primary
Servicing Office of the Special Servicer is located at 1601
Washington Avenue,
Suite 800, Miami Beach, Florida 33139.
"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 Serviced 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;
(c) the aggregate of all Principal Prepayments Received by the
Trust
on the Trust Mortgage Loans during the related Collection Period;
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(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 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 August 15, 2005, as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
August 15, 2005, relating to the Registered Certificates.
"PTCE" shall mean prohibited transaction class exemption.
"PTE" shall mean prohibited transaction exemption.
"Purchase Option Holders" shall have the meaning assigned thereto
in
Section 3.18(b).
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"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 Serviced 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.
"Qualified Mortgage" shall have the meaning assigned thereto in
Section 2.03(a).
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"Rated Final Distribution Date" shall mean: (a) with respect to the
Senior Class A Certificates, the Distribution Date in September
2030; and (b)
with respect to the other Classes of Principal Balance Certificates
(exclusive
of the Class T Certificates), the Distribution Date in September
2040.
"Rating Agency" shall mean each of S&P and Fitch.
"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan and Serviced Non-Trust
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; provided that, in the case of any Outside
Serviced Trust
Mortgage Loan or any related REO Trust Mortgage Loan that was the
subject
of a Final Recovery Determination or a Permitted Purchase under the
related
Outside Servicing Agreement and/or the related Co-Lender Agreement,
references to "Collection Period" in this clause (1) shall mean the
related
Underlying Collection Period;
(2) with respect to each Trust Mortgage Loan and Serviced Non-Trust
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 (or,
in the
case of an Outside Serviced Trust Mortgage Loan, by the applicable
Outside
Servicer pursuant to the related Outside Servicing Agreement), the
amount
of such principal and/or interest (other than Default Interest and,
in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest) so canceled;
(3) with respect to each Trust Mortgage Loan and Serviced Non-Trust
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
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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 (or, in the case of an Outside Serviced Trust Mortgage
Loan,
by the applicable Outside Servicer pursuant to the related Outside
Servicing Agreement), 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
(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).
"Received by the Trust" shall mean: (a) in the case of an Outside
Serviced Trust Mortgage Loan or any related REO Property, received
by the
Trustee (or the Master Servicer on behalf of the Trustee), as
holder of the
Mortgage Note for such Outside Serviced Trust Mortgage Loan, on
behalf of the
Trust; and (b) in the case of any other 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-AB, Class A-4, Class A-1A,
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
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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 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.
"Remaining Adjusted Principal Distribution Amount" shall mean, with
respect to any Class of Class B Through T Certificates for any
Distribution
Date, an amount equal to the Adjusted Principal Distribution Amount
for such
Distribution Date, reduced by all distributions of principal to be
made on such
Distribution Date: (i) pursuant to Section 4.01(a) with respect to
the Senior
Class A Certificates, the Class A-M Certificates and the Class A-J
Certificates;
and (ii) pursuant to Section 4.01(b) with respect to any and all
other Classes
of the Class B Through T Certificates that evidence a right to
payment in
accordance with such Section 4.01(b) that is prior to the right to
payment
evidenced by the subject Class of Class B Through T Certificates.
The priority
of payments on the various Classes of the Class B Through T
Certificates under
Section 4.01(b) shall be consistent with the alphabetic order of
the respective
Class designations of such Classes of Certificates, with the Class
B
Certificates entitling the Holders thereof to the highest payment
priority under
Section 4.01(b) as among the respective Classes of the Class B
Through T
Certificates and the Class T Certificates entitling the Holders
thereof to the
lowest payment priority under Section 4.01(b) as among the
respective Classes of
the Class B Through T Certificates.
"Remaining Available Distribution Amount" shall mean, with respect
to
any Class of Class B Through T Certificates for any Distribution
Date, an amount
equal to the Available Distribution Amount for such Distribution
Date, reduced
by all distributions to be made on such Distribution Date: (i)
pursuant to
Section 4.01(a) with respect to the Senior Certificates, the Class
A-M
Certificates and the Class A-J Certificates; and (ii) pursuant to
Section
4.01(b) with respect to any and all other Classes of the Class B
Through T
Certificates that evidence a right to payment in accordance with
such Section
4.01(b) that is prior to the right to payment evidenced by the
subject Class of
Class B Through T Certificates. The priority of payments on the
various Classes
of the Class B Through T Certificates under Section 4.01(b) shall
be consistent
with the alphabetic order of the respective Class designations of
such Classes
of Certificates, with the Class B Certificates entitling the
Holders thereof to
the highest payment priority under Section 4.01(b) as among the
respective
Classes of the Class B Through T Certificates and the Class T
Certificates
entitling the Holders thereof to the lowest payment priority under
Section
4.01(b) as among the respective Classes of the Class B Through T
Certificates.
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"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
and, in the
case of each Outside Serviced Trust Mortgage Loan, under the
related Outside
Servicing 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 Interest
for such
Interest Accrual Period; (b) with respect to any REMIC I Regular
Interest that,
as of the Closing Date, corresponds to a Serviced 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 that, as of the
Closing Date,
corresponds to a Serviced 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,
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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 that, as
of the Closing Date, corresponds to an Outside Serviced Trust
Mortgage Loan, 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 sum of the related Master Servicing
Fee Rate plus
the Trustee Fee Rate.
"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 43 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, with respect to any REMIC II
Regular Interest for any Interest Accrual Period, an annual rate
equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period.
"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-AB, Class A-4, Class A-1A, 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 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; and
(b) with respect to the Class X-CP Certificates, any of the Class
X-CP
REMIC III Components.
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"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 (or, in the case of any REO Property
relating to an
Outside Serviced Trust Mortgage Loan, pursuant to the related
Outside Servicing
Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case
of any REO
Property relating to an Outside Serviced Trust Mortgage Loan,
pursuant to the
related Outside Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
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 to a
Serviced 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
Serviced Non-Trust
Mortgage Loan Noteholder) with respect to each REO Mortgage Loan
(after
provision for amounts to be applied to the payment of, or to be
reimbursed to
the Master Servicer or the Special Servicer for the payment of, the
costs of
operating, managing and maintaining any related Administered REO
Property or for
the reimbursement of the Master Servicer, the Special Servicer, the
Trustee or
the
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Fiscal Agent for any other related Servicing Advances, but
otherwise without
regard to any Advances, Advance Interest, fees, costs, expenses and
other
potential Additional Trust Fund Expenses payable or reimbursable
therefrom until
after the following applications have been made) shall be treated:
first, as a
recovery of accrued and unpaid interest on such REO Mortgage Loan
at the related
Mortgage Rate (net, in the case of any successor REO Mortgage Loan
in respect of
an Outside Serviced Trust Mortgage Loan, of the related "Outside
Servicing Fee
Rate") to but not including the Due Date in the related Collection
Period of
receipt (exclusive, however, in the case of an REO Mortgage Loan
that relates to
an ARD Mortgage Loan after its Anticipated Repayment Date, of any
such accrued
and unpaid interest that constitutes Additional Interest); second,
as a recovery
of principal of such REO Mortgage Loan to the extent of its entire
unpaid
principal balance; third, in accordance with the normal servicing
practices of
the Master Servicer, as a recovery of any other amounts (or, in the
case of an
REO Mortgage Loan in respect of an Outside Serviced Trust Mortgage
Loan, any
Prepayment Consideration) due and owing in respect of such REO
Mortgage Loan
(exclusive, however, in the case of an REO Mortgage Loan that
relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, of any such
accrued and
unpaid interest that constitutes Additional Interest); and fourth,
in the case
of an REO Mortgage Loan that relates to an ARD Mortgage Loan after
its
Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional
Interest on such REO Mortgage Loan; provided that, in the case of
an REO
Mortgage Loan in respect of an Outside Serviced Trust Mortgage
Loan, if an
allocation in accordance with this sentence would conflict with
remittance
reports from the applicable Outside Servicer, the Master Servicer
shall, in the
absence of actual knowledge of an error, rely on the allocation in
such
remittance reports; and provided, further, that, if one or more
Advances
previously made in respect of an REO Trust Mortgage Loan have been
reimbursed
out of general collections of principal on the Mortgage Pool as one
or more
Nonrecoverable Advances, then collections in respect of such REO
Trust Mortgage
Loan available for application pursuant to clauses first through
fourth of this
sentence shall instead be applied in the following order--(i) as a
recovery of
accrued and unpaid interest on, and principal of, such REO Trust
Mortgage Loan,
to the extent of any outstanding P&I Advances and unpaid Master
Servicing Fees
in respect of such REO Trust Mortgage Loan, (ii) as a recovery of
the item(s)
for which such previously reimbursed Nonrecoverable Advance(s) were
made
(together with any interest on such previously reimbursed
Nonrecoverable
Advance(s) that was also paid out of general collections of
principal on the
Mortgage Pool), and (iii) in accordance with clauses first through
fourth of
this sentence (taking into account the applications pursuant to
clauses (i) and
(ii) of this proviso); and provided, further, that if the Mortgage
Loans
comprising any Serviced Loan Combination become REO Mortgage Loans,
amounts
(other than Loss of Value Payments deemed to constitute Liquidation
Proceeds
with respect to the REO Trust Mortgage Loan in such Serviced Loan
Combination
and other than Liquidation Proceeds resulting from the purchase of
the Trust's
interest in any related REO Property pursuant to or as contemplated
by Section
2.03) received with respect to such REO Mortgage Loans shall be
applied to
amounts due and owing in respect of such REO Mortgage Loans as
provided in the
related Co-Lender Agreement; and provided, further, that Loss of
Value Payments
shall not be applied in accordance with the foregoing provisions of
this
definition unless and until such amounts are transferred to the
Pool Custodial
Account, and deemed to constitute Liquidation Proceeds in respect
of a
particular REO Trust Mortgage Loan, in accordance with Section
3.05(e).
Notwithstanding the foregoing, all amounts payable or reimbursable
to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of
the predecessor Mortgage Loan as of the date of the related REO
Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing
Advances and
P&I Advances, together with any interest accrued and payable to
the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of
such Servicing Advances and P&I Advances in accordance with
Sections 3.11(g) and
4.03(d), respectively, shall continue to be payable or reimbursable
to the
Master Servicer, the Special Servicer, the Trustee or
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the Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan. The
foregoing allocations are not intended to limit the rights of the
parties
hereunder to reimbursements or indemnities to which they are
otherwise entitled
hereunder.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and
in the name of the Trustee for the benefit of the
Certificateholders (or, in the
case of a Mortgaged Property related to a Serviced Loan
Combination, for the
benefit of the Certificateholders and the related Non-Trust
Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure,
acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with
applicable law
in connection with the default or imminent default of a Mortgage
Loan (or a Loan
Combination); provided that the Mortgaged Property securing an
Outside Serviced
Loan Combination (if acquired under the related Outside Servicing
Agreement)
shall constitute an REO Property if such Mortgaged Property is so
acquired for
the benefit of the related Non-Trust Mortgage Loan Noteholder(s)
and the Trust,
as their interests may appear, through foreclosure, acceptance of a
deed-in-lieu
of foreclosure or otherwise in accordance with applicable law in
connection with
a default or imminent default of the subject Outside Serviced Loan
Combination.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO
Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"REO Trust Mortgage Loan" shall mean the successor REO Mortgage
Loan
with respect to any Trust Mortgage Loan as to which the related
Mortgaged
Property has become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of
Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2
attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the party required or authorized
to obtain
such appraisal hereunder, which appraisal shall be prepared in
accordance with
12 CFR Section 225.62 and conducted in accordance with the
standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan
having a Stated
Principal Balance of, or in the case of a Mortgaged Property that
has an
allocated loan amount of, less than $2,000,000, if no satisfactory
(as
determined by the Special Servicer pursuant to Section 3.09(a))
appraisal
meeting the foregoing criteria was obtained or conducted within the
prior 12
months, a "desktop" value estimate performed by the Special
Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan:
(i) that becomes a Modified Loan;
(ii) that is 60 days or more delinquent in respect of any Monthly
Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if any,
(A) for one (1) Business Day beyond the date on which such Balloon
Payment
was due (unless clause (B) below
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applies) or (B) if the related Mortgagor shall have delivered a
refinancing
commitment acceptable to the Special Servicer prior to the date
when such
Balloon Payment was due, for 30 days beyond the date on which such
Balloon
Payment was due (or for such shorter period ending on the date on
which it
is determined that the refinancing could not reasonably be expected
to
occur);
(iv) with respect to which the related Mortgaged Property has
become
an REO Property;
(v) with respect to which a receiver or similar official is
appointed
and continues for 60 days in such capacity in respect of the
related
Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case
of an
involuntary bankruptcy, insolvency or similar proceeding, has not
been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five years following any extension
of
its maturity date pursuant to Section 3.20;
provided that all of the Mortgage Loans comprising a Serviced Loan
Combination
shall, upon the occurrence of any of the events described in
clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be
deemed to be a
single "Required Appraisal Loan". Any Required Appraisal Loan shall
cease to be
such at such time as it has become a Corrected Mortgage Loan
(assuming such
Required Appraisal Loan was a Specially Serviced Mortgage Loan), it
has remained
current for at least three consecutive Monthly Payments, and no
other event
described in clauses (i) through (vii) above has occurred with
respect thereto
during the preceding three-month period. The term "Required
Appraisal Loan"
shall include any successor REO Mortgage Loan(s) in respect of a
Serviced Trust
Mortgage Loan or Serviced Loan Combination. In no event shall any
Outside
Serviced Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with
respect thereto or any Outside Serviced Loan Combination constitute
a Required
Appraisal Loan hereunder.
"Required Appraisal Value" shall mean, with respect to any
Mortgaged
Property securing (or REO Property relating to) a Required
Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of
the Appraised
Value of such Mortgaged Property (or REO Property) as determined by
the most
recent Required Appraisal or any letter update of such Required
Appraisal (as
such Appraised Value may be reduced by the Special Servicer, acting
in
accordance with the Servicing Standard, based upon the Special
Servicer's review
of the subject Required Appraisal and such other information that
the Special
Servicer, acting in accordance with the Servicing Standard, deems
relevant
(provided that the Special Servicer shall not be obligated to make
any such
reduction)), over (ii) the amount of any obligations secured by
liens on such
Mortgaged Property (or REO Property) that are prior to the lien of
the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and
Reserve
Funds held by the Master Servicer in respect of such Required
Appraisal Loan
that (i) are not being held for purposes of paying any real estate
taxes and
assessments, insurance premiums or, if applicable, ground rents,
(ii) are not
otherwise scheduled to be applied or utilized (except to pay debt
service on
such Required Appraisal Loan) within the 12-month period following
the date of
determination and (iii) may be applied towards the reduction of the
principal
balance of such Required Appraisal Loan; plus (c) the amount of any
letter of
credit constituting additional security for such Required Appraisal
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Loan and that may be drawn upon for purposes of paying down the
principal
balance of such Required Appraisal Loan.
"Required Insurer Rating" shall mean:
(i) for purposes of Sections 3.07(a) and 3.07(b), a "claims paying
ability", "financial strength" or comparable rating, as applicable,
of at
least "A" from S&P and "A" from Fitch (or, if not then rated by
Fitch, an
equivalent rating thereto from at least one nationally recognized
statistical rating agency in addition to S&P or a rating of
"A:IX" or
better from A.M. Best's Key Rating Guide) or, in the case of either
such
Rating Agency, such lower rating as will not result in an Adverse
Rating
Event with respect to any Class of Certificates rated by such
Rating
Agency; and
(ii) for purposes of Section 3.07(c), a "claims paying ability",
"financial strength" or comparable rating, as applicable, of at
least "A"
from S&P and "A" from Fitch (or, if not then rated by Fitch, an
equivalent
rating thereto from at least one nationally recognized statistical
rating
agency in addition to S&P or a rating of "A:IX" or better from
A.M. Best's
Key Rating Guide) or, in the case of either such Rating Agency,
such lower
rating as will not result in an Adverse Rating Event with respect
to any
Class of Certificates rated by such Rating Agency (as evidenced in
writing
by such Rating Agency).
"Reserve Account" shall have the meaning assigned thereto in
Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on
behalf of the
mortgagee representing reserves for repairs, capital improvements
and/or
environmental remediation in respect of the related Mortgaged
Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean any of the Class R-I
Certificates, the Class R-II Certificates, the Class R-III
Certificates or, if
issued in accordance with Section 2.06, the Class R-LR
Certificates.
"Resolution Extension Period" shall have the meaning assigned
thereto
in Section 2.03(a).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any
Trust Officer,
any Assistant Secretary or any other officer of the Trustee's
Global Securities
and Trust Services Group customarily performing functions similar
to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b)
when used with
respect to the Fiscal Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance
with the
Servicing Standard) of the Master Servicer or the Special Servicer,
as the case
may be, with respect to the matters that are the subject thereof,
and copies of
all relevant documentation.
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"Rule 144A Global Certificate" shall mean, with respect to any
Class
of Book-Entry Non-Registered Certificates, 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, none of
which certificates bears a Regulation S Legend, and each of which
certificates
has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. or its successor in interest. If
neither such rating
agency nor any successor remains in existence, "S&P" shall be
deemed to refer to
such other nationally recognized statistical rating agency or other
comparable
Person designated by the Depositor, notice of which designation
shall be given
to the Trustee, the Fiscal Agent, the Master Servicer and the
Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act" shall have the meaning assigned thereto in
Section 8.15(d).
"Sarbanes-Oxley Certification" shall have the meaning assigned
thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
"Scheduled Payment" shall mean, with respect to any Trust Mortgage
Loan or Serviced Non-Trust Mortgage Loan, for any Due Date
following the Cut-off
Date as of which it is outstanding, the Monthly Payment on such
Mortgage Loan
that is or would be, as the case may be, payable by the related
Mortgagor on
such Due Date under the terms of the related Mortgage Note as in
effect on the
Closing Date, without regard to any subsequent change in or
modification of such
terms 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 (or, in the case of an Outside Serviced Trust Mortgage Loan,
by the
applicable Outside Servicer pursuant to the related Ou
