EXECUTION VERSION
================================================================================
MORGAN STANLEY CAPITAL I INC.
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ7
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
SECTION 1.1
DEFINITIONS..............................................
5
SECTION 1.2
CALCULATIONS RESPECTING MORTGAGE LOANS...................
65
SECTION 1.3
CALCULATIONS RESPECTING ACCRUED INTEREST.................
66
SECTION 1.4
INTERPRETATION...........................................
66
SECTION 1.5
ARD LOANS................................................
67
SECTION 1.6
CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS
AND A/B MORTGAGE LOANS................................
67
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1
CONVEYANCE OF MORTGAGE LOANS.............................
69
SECTION 2.2
ACCEPTANCE BY TRUSTEE....................................
72
SECTION 2.3
SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF
REPRESENTATIONS AND WARRANTIES........................
75
SECTION 2.4
REPRESENTATIONS AND WARRANTIES...........................
81
SECTION 2.5
CONVEYANCE OF INTERESTS..................................
82
SECTION 2.6
CERTAIN MATTERS RELATING TO NON-SERVICED
MORTGAGE LOANS........................................
82
ARTICLE III
THE CERTIFICATES
SECTION 3.1
THE CERTIFICATES.........................................
82
SECTION 3.2
REGISTRATION.............................................
84
SECTION 3.3
TRANSFER AND EXCHANGE OF CERTIFICATES....................
84
SECTION 3.4
MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........
90
SECTION 3.5
PERSONS DEEMED OWNERS....................................
90
SECTION 3.6
ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES
AND ADDRESSES.........................................
90
SECTION 3.7
BOOK-ENTRY CERTIFICATES..................................
91
SECTION 3.8
NOTICES TO CLEARING AGENCY...............................
94
SECTION 3.9
DEFINITIVE CERTIFICATES..................................
94
ARTICLE IV
ADVANCES
SECTION 4.1
P&I ADVANCES BY MASTER SERVICER..........................
95
-i-
SECTION 4.1A
P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
AND SERVICED PARI PASSU MORTGAGE LOANS................
96
SECTION 4.2
SERVICING ADVANCES.......................................
97
SECTION 4.3
ADVANCES BY THE TRUSTEE..................................
98
SECTION 4.4
EVIDENCE OF NONRECOVERABILITY............................
98
SECTION 4.5
INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN.......................
99
SECTION 4.6
REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST...........
100
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1
COLLECTIONS..............................................
101
SECTION 5.2
APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT..............................
106
SECTION 5.3
DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.................
116
SECTION 5.4
PAYING AGENT REPORTS.....................................
117
SECTION 5.5
PAYING AGENT TAX REPORTS.................................
119
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1
DISTRIBUTIONS GENERALLY..................................
120
SECTION 6.2
REMIC I..................................................
121
SECTION 6.3
REMIC II.................................................
121
SECTION 6.4
RESERVED.................................................
122
SECTION 6.5
REMIC III................................................
122
SECTION 6.6
ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY...................
129
SECTION 6.7
NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS.............
132
SECTION 6.8
ADJUSTMENT OF SERVICING FEES.............................
132
SECTION 6.9
APPRAISAL REDUCTIONS.....................................
132
SECTION 6.10
COMPLIANCE WITH WITHHOLDING REQUIREMENTS.................
133
SECTION 6.11
PREPAYMENT PREMIUMS......................................
133
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND THE LUXEMBOURG PAYING
AGENT
SECTION 7.1
DUTIES OF THE TRUSTEE AND THE PAYING AGENT...............
134
SECTION 7.2
CERTAIN MATTERS AFFECTING THE TRUSTEE AND
THE PAYING AGENT......................................
136
SECTION 7.3
THE TRUSTEE AND THE PAYING AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS...........
138
SECTION 7.4
THE TRUSTEE AND THE PAYING AGENT MAY OWN CERTIFICATES....
139
-ii-
SECTION 7.5
ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE AND
THE PAYING AGENT......................................
139
SECTION 7.6
RESIGNATION AND REMOVAL OF THE TRUSTEE OR
THE PAYING AGENT......................................
139
SECTION 7.7
SUCCESSOR TRUSTEE OR PAYING AGENT........................
141
SECTION 7.8
MERGER OR CONSOLIDATION OF TRUSTEE OR PAYING AGENT.......
142
SECTION 7.9
APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS
OR CUSTODIAN..........................................
142
SECTION 7.10
AUTHENTICATING AGENTS....................................
144
SECTION 7.11
INDEMNIFICATION OF TRUSTEE AND THE PAYING AGENT..........
145
SECTION 7.12
FEES AND EXPENSES OF TRUSTEE AND THE PAYING AGENT........
147
SECTION 7.13
COLLECTION OF MONEYS.....................................
147
SECTION 7.14
TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.................
147
SECTION 7.15
NOTIFICATION TO HOLDERS..................................
149
SECTION 7.16
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE
AND THE PAYING AGENT..................................
150
SECTION 7.17
FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE AND THE PAYING AGENT........
151
SECTION 7.18
APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION TO
CERTIFICATEHOLDERS....................................
152
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1
SERVICING STANDARD; SERVICING DUTIES.....................
153
SECTION 8.2
FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER.....................
155
SECTION 8.3
MASTER SERVICER'S GENERAL POWER AND DUTIES...............
155
SECTION 8.4
PRIMARY SERVICING AND SUB-SERVICING......................
162
SECTION 8.5
SERVICERS MAY OWN CERTIFICATES...........................
164
SECTION 8.6
MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES
AND OTHER.............................................
164
SECTION 8.7
ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE.................
167
SECTION 8.8
TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES..
172
SECTION 8.9
DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE
BENEFIT OF THE CERTIFICATEHOLDERS.....................
173
SECTION 8.10
SERVICING COMPENSATION...................................
174
SECTION 8.11
MASTER SERVICER REPORTS; ACCOUNT STATEMENTS..............
175
SECTION 8.12
ANNUAL STATEMENT AS TO COMPLIANCE........................
177
SECTION 8.13
ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT................................................
177
SECTION 8.14
CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING
THE MORTGAGED PROPERTIES..............................
178
SECTION 8.15
OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF
THE MASTER SERVICER...................................
179
SECTION 8.16
RULE 144A INFORMATION....................................
181
-iii-
SECTION 8.17
INSPECTIONS..............................................
182
SECTION 8.18
MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS..........................................
182
SECTION 8.19
SPECIALLY SERVICED MORTGAGE LOANS........................
185
SECTION 8.20
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE MASTER SERVICER...................................
186
SECTION 8.21
MERGER OR CONSOLIDATION..................................
187
SECTION 8.22
RESIGNATION OF MASTER SERVICER...........................
187
SECTION 8.23
ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER....
188
SECTION 8.24
LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS................................................
189
SECTION 8.25
INDEMNIFICATION; THIRD-PARTY CLAIMS......................
191
SECTION 8.26
EXCHANGE ACT REPORTING...................................
194
SECTION 8.27
COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS............................................
196
SECTION 8.28
TERMINATION..............................................
196
SECTION 8.29
PROCEDURE UPON TERMINATION...............................
198
SECTION 8.30
OPERATING ADVISER CONTACT WITH MASTER SERVICER
AND SPECIAL SERVICER..................................
200
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY
SPECIAL SERVICER
SECTION 9.1
DUTIES OF SPECIAL SERVICER...............................
201
SECTION 9.2
FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
OF SPECIAL SERVICER...................................
202
SECTION 9.3
SUB-SERVICERS............................................
203
SECTION 9.4
SPECIAL SERVICER GENERAL POWERS AND DUTIES...............
203
SECTION 9.5
"DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED
MORTGAGE LOANS; DUE-ON-ENCUMBRANCE CLAUSES............
206
SECTION 9.6
RELEASE OF MORTGAGE FILES................................
211
SECTION 9.7
DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE...................
211
SECTION 9.8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER......................................
212
SECTION 9.9
STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES..........................
214
SECTION 9.10
PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.........
216
SECTION 9.11
COMPENSATION TO THE SPECIAL SERVICER.....................
216
SECTION 9.12
REALIZATION UPON DEFAULTED MORTGAGE LOANS................
217
SECTION 9.13
FORECLOSURE..............................................
219
SECTION 9.14
OPERATION OF REO PROPERTY................................
219
SECTION 9.15
SALE OF REO PROPERTY.....................................
223
SECTION 9.16
REALIZATION ON COLLATERAL SECURITY.......................
224
SECTION 9.17
RESERVED.................................................
224
-iv-
SECTION 9.18
ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE............
224
SECTION 9.19
ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.........
225
SECTION 9.20
MERGER OR CONSOLIDATION..................................
225
SECTION 9.21
RESIGNATION OF SPECIAL SERVICER..........................
225
SECTION 9.22
ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER...
226
SECTION 9.23
LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS............................................
227
SECTION 9.24
INDEMNIFICATION; THIRD-PARTY CLAIMS......................
229
SECTION 9.25
RESERVED.................................................
231
SECTION 9.26
SPECIAL SERVICER MAY OWN CERTIFICATES....................
231
SECTION 9.27
TAX REPORTING............................................
231
SECTION 9.28
APPLICATION OF FUNDS RECEIVED............................
231
SECTION 9.29
COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS............................................
231
SECTION 9.30
TERMINATION..............................................
232
SECTION 9.31
PROCEDURE UPON TERMINATION...............................
234
SECTION 9.32
CERTAIN SPECIAL SERVICER REPORTS.........................
235
SECTION 9.33
SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER,
THE TRUSTEE AND PAYING AGENT..........................
239
SECTION 9.34
RESERVED.................................................
240
SECTION 9.35
RESERVED.................................................
240
SECTION 9.36
SALE OF DEFAULTED MORTGAGE LOANS.........................
240
SECTION 9.37
OPERATING ADVISER; ELECTIONS.............................
243
SECTION 9.38
LIMITATION ON LIABILITY OF OPERATING ADVISER.............
244
SECTION 9.39
DUTIES OF OPERATING ADVISER..............................
244
SECTION 9.40
RIGHTS OF THE HOLDER OF A B NOTE.........................
247
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1
TERMINATION OF TRUST UPON REPURCHASE OR LIQUIDATION
OF ALL MORTGAGE LOANS.................................
248
SECTION 10.2
PROCEDURE UPON TERMINATION OF TRUST......................
249
SECTION 10.3
ADDITIONAL TRUST TERMINATION REQUIREMENTS................
250
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1
LIMITATION ON RIGHTS OF HOLDERS..........................
251
SECTION 11.2
ACCESS TO LIST OF HOLDERS................................
252
SECTION 11.3
ACTS OF HOLDERS OF CERTIFICATES..........................
253
-v-
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
SECTION 12.1
REMIC ADMINISTRATION.....................................
254
SECTION 12.2
PROHIBITED TRANSACTIONS AND ACTIVITIES...................
259
SECTION 12.3
MODIFICATIONS OF MORTGAGE LOANS..........................
259
SECTION 12.4
LIABILITY WITH RESPECT TO CERTAIN TAXES AND
LOSS OF REMIC STATUS..................................
259
SECTION 12.5
CLASS S GRANTOR TRUST....................................
260
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1
BINDING NATURE OF AGREEMENT..............................
260
SECTION 13.2
ENTIRE AGREEMENT.........................................
261
SECTION 13.3
AMENDMENT................................................
261
SECTION 13.4
GOVERNING LAW............................................
263
SECTION 13.5
NOTICES..................................................
263
SECTION 13.6
SEVERABILITY OF PROVISIONS...............................
264
SECTION 13.7
INDULGENCES; NO WAIVERS..................................
264
SECTION 13.8
HEADINGS NOT TO AFFECT INTERPRETATION....................
264
SECTION 13.9
BENEFITS OF AGREEMENT....................................
264
SECTION 13.10
SPECIAL NOTICES TO THE RATING AGENCIES...................
264
SECTION 13.11
COUNTERPARTS.............................................
266
SECTION 13.12
INTENTION OF PARTIES.....................................
266
SECTION 13.13
RECORDATION OF AGREEMENT.................................
267
SECTION 13.14
RATING AGENCY MONITORING FEES............................
268
SECTION 13.15
ACKNOWLEDGEMENT BY PRIMARY SERVICERS.....................
268
EXHIBITS AND SCHEDULES
EXHIBIT A-1
Form of Class A-1 Certificate
EXHIBIT A-2
Form of Class A-1A Certificate
EXHIBIT A-3
Form of Class A-2 Certificate
EXHIBIT A-4
Form of Class A-3 Certificate
EXHIBIT A-5
Form of Class A-AB Certificate
EXHIBIT A-6
Form of Class A-4 Certificate
EXHIBIT A-7
Form of Class A-M Certificate
EXHIBIT A-8
Form of Class A-J Certificate
EXHIBIT A-9
Form of Class B Certificate
EXHIBIT A-10
Form of Class C Certificate
EXHIBIT A-11
Form of Class D Certificate
EXHIBIT A-12
Form of Class E Certificate
EXHIBIT A-13
Form of Class F Certificate
-vi-
EXHIBIT A-14
Form of Class G Certificate
EXHIBIT A-15
Form of Class H Certificate
EXHIBIT A-16
Form of Class J Certificate
EXHIBIT A-17
Form of Class K Certificate
EXHIBIT A-18
Form of Class L Certificate
EXHIBIT A-19
Form of Class M Certificate
EXHIBIT A-20
Form of Class N Certificate
EXHIBIT A-21
Form of Class O Certificate
EXHIBIT A-22
Form of Class P Certificate
EXHIBIT A-23
Form of Class Q Certificate
EXHIBIT A-24
Form of Class S Certificate
EXHIBIT A-25
Form of Class R-I Certificate
EXHIBIT A-26
Form of Class R-II Certificate
EXHIBIT A-27
Form of Class R-III Certificate
EXHIBIT A-28
Form of Class X Certificate
EXHIBIT B-1
Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2
Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C
Form of Request for Release
EXHIBIT D-1
Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A
Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B
Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A
Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B
Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1
Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2
Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F
Form of Regulation S Certificate
EXHIBIT G-1
Form of Principal Primary Servicing Agreement
EXHIBIT G-2
Form of UCMFI Primary Servicing Agreement
EXHIBIT H
Form of Exchange Certification
EXHIBIT I
Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d))
EXHIBIT J
List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1
Form of Mortgage Loan Purchase Agreement I (LaSalle)
EXHIBIT K-2
Form of Mortgage Loan Purchase Agreement II (UCMFI)
EXHIBIT K-3
Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4
Form of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT K-5
Reserved
EXHIBIT L
Form of Inspection Report
EXHIBIT M
Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N
Form of CMSA Operating Statement Analysis Report
EXHIBIT O
Reserved
-vii-
EXHIBIT P
Reserved
EXHIBIT Q
Reserved
EXHIBIT R
Reserved
EXHIBIT S-1
Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2
Form of Power of Attorney to Special Servicer (Section 9.4(a))
EXHIBIT T
Form of Debt Service Coverage Ratio Procedures
EXHIBIT U
Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a))
EXHIBIT V
Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
EXHIBIT W
Restricted Servicer Reports
EXHIBIT X
Unrestricted Servicer Reports
EXHIBIT Y
Investor Certificate (Section 5.4(a))
EXHIBIT Z
Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA
Form of Wells Fargo primary servicing agreement
(Section 8.29(b))
EXHIBIT BB
Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC
Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD
Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I
LaSalle Loan Schedule
SCHEDULE II
UCMFI Loan Schedule
SCHEDULE III
Principal Loan Schedule
SCHEDULE IV
MSMC Loan Schedule
SCHEDULE V
Reserved
SCHEDULE VI
List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII
Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE VIII
List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX
Reserved
SCHEDULE X
Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XI
List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
SCHEDULE XII
Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XIII
Class A-AB Planned Principal Balance
-viii-
THIS POOLING AND SERVICING AGREEMENT is dated as of November 1,
2005
(this "Agreement") between MORGAN STANLEY CAPITAL I INC., a
Delaware
corporation, as depositor (the "Depositor"), WELLS FARGO BANK,
NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), ARCAP
SERVICING, INC.,
as special servicer (the "Special Servicer"), U.S. BANK NATIONAL
ASSOCIATION, as
trustee of the Trust (the "Trustee") and LASALLE BANK NATIONAL
ASSOCIATION, only
in its capacity as paying agent (the "Paying Agent") and
certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Morgan Stanley Mortgage Capital Inc., as seller ("MSMC"),
LaSalle Bank
National Association, as seller ("LaSalle"), Principal Commercial
Funding, LLC,
as seller ("Principal") and Union Central Mortgage Funding, Inc.,
as seller
("UCMFI") and will be the owner of the Mortgage Loans and the other
property
being conveyed by it to the Trustee for inclusion in the Trust
which is hereby
created. On the Closing Date, the Depositor will acquire (i) the
REMIC I Regular
Interests and the Class R-I Certificates as consideration for its
transfer to
the Trust of the Mortgage Loans (other than any Excess Interest
payable thereon)
and the other property constituting REMIC I; (ii) the REMIC II
Regular Interests
and the Class R-II Certificates as consideration for its transfer
of the REMIC I
Regular Interests to the Trust; (iii) the REMIC III Certificates
(other than the
portion of the Class S Certificates representing the right to
receive Excess
Interest) as consideration for its transfer of the REMIC II Regular
Interests to
the Trust; and (iv) the portion of the Class S Certificates
representing the
right to receive Excess Interest as consideration for its transfer
to the Trust
of such right. The Depositor has duly authorized the execution and
delivery of
this Agreement to provide for the foregoing and the issuance of (A)
the REMIC I
Regular Interests and the Class R-I Certificates representing in
the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II
Regular Interests
and the Class R-II Certificates representing in the aggregate the
entire
beneficial ownership of REMIC II, and (C) the REMIC III
Certificates
representing in the aggregate the entire beneficial ownership of
REMIC III and,
in the case of the Class S Certificates, the Class S Grantor Trust.
Excess
Interest received on the Mortgage Loans shall be held in the Class
S Grantor
Trust for the benefit of the Class S Certificates. All covenants
and agreements
made by the Depositor and the Trustee herein with respect to the
Mortgage Loans
and the other property constituting the Trust are for the benefit
of the Holders
of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual
Certificates and the REMIC Regular Certificates (including the
Class S
Certificates to the extent of their interest in any Excess
Interest). The
parties hereto are entering into this Agreement, and the Trustee is
accepting
the trusts created hereby, for good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-M, Class A-J, Class B, Class C, Class
D,
Class E and Class F Certificates will be offered for sale pursuant
to the
prospectus (the "Prospectus") dated June 7, 2005, as supplemented
by the
preliminary prospectus supplement dated November 8, 2005 (together
with the
Prospectus, the "Preliminary Prospectus Supplement"), and as
further
supplemented by the final prospectus supplement dated November 17,
2005
(together with the Prospectus, the "Final Prospectus Supplement"),
and the Class
X, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class
P, Class Q and Class S Certificates will be offered for sale
pursuant to a
Private Placement Memorandum dated November 17, 2005.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each
Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I
Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the
initial
"Certificate Balance") equal to the Scheduled Principal Balance as
of the
Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC
I Regular
Interest relates, and a "latest possible maturity date" set to the
Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest
relates. The Class R-I Certificate will be designated as the sole
Class of
residual interests in REMIC I and will have no Certificate Balance
and no
Pass-Through Rate, but will be entitled to receive the proceeds of
any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests
have been
paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class
R-II
Certificates will be designated as the sole Class of residual
interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate,
but will be
entitled to receive the proceeds of any assets remaining in REMIC
II after all
Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class designation, the
corresponding REMIC II Regular Interest (the "CORRESPONDING REMIC
II REGULAR
INTEREST") and the initial Certificate Balance for each Class of
Principal
Balance Certificates (the "CORRESPONDING CERTIFICATES").
CORRESPONDING
INITIAL REMIC II
CORRESPONDING
INITIAL CLASS
REMIC II REGULAR
REGULAR INTEREST
CERTIFICATES
CERTIFICATE BALANCE
INTERESTS
CERTIFICATE BALANCE
-------------
-------------------
----------------
-------------------
Class A-1
$125,000,000
A-1
$125,000,000
Class A-1A
$217,220,000
A-1A
$217,220,000
Class A-2
$180,030,000
A-2
$180,030,000
Class A-3
$ 25,000,000
A-3
$ 25,000,000
Class A-AB
$100,000,000
A-AB
$100,000,000
Class A-4
$722,379,000
A-4
$722,379,000
Class A-M
$195,662,000
A-M
$195,662,000
Class A-J
$139,408,000
A-J
$139,408,000
Class B
$ 14,675,000
B
$ 14,675,000
Class C
$ 26,903,000
C
$ 26,903,000
Class D
$ 17,121,000
D
$ 17,121,000
Class E
$ 17,120,000
E
$ 17,120,000
Class F
$ 19,566,000
F
$ 19,566,000
Class G
$ 19,566,000
G
$ 19,566,000
Class H
$ 26,904,000
H
$ 26,904,000
Class J
$ 19,566,000
J
$ 19,566,000
Class K
$ 19,566,000
K
$ 19,566,000
-2-
CORRESPONDING
INITIAL REMIC II
CORRESPONDING
INITIAL CLASS
REMIC II REGULAR
REGULAR INTEREST
CERTIFICATES
CERTIFICATE BALANCE
INTERESTS
CERTIFICATE BALANCE
-------------
-------------------
----------------
-------------------
Class L
$
7,337,000
L
$
7,337,000
Class M
$
9,783,000
M
$
9,783,000
Class N
$
4,892,000
N
$
4,892,000
Class O
$
4,891,000
O
$
4,891,000
Class P
$
4,892,000
P
$
4,892,000
Class Q
$
9,783,000
Q
$
9,783,000
Class S
$ 29,349,760
S
$ 29,349,760
REMIC III AND CLASS S GRANTOR TRUST
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount)
and Final
Scheduled Distribution Date for each Class of REMIC III
Certificates comprising
the interests in REMIC III created hereunder, and in the case of
the Class S
Certificates, the beneficial ownership interest in the Class S
Grantor Trust.
Initial Aggregate
REMIC III
Initial
Certificate Balance
Interest
Pass-Through
or Notional
Final Scheduled
Designation
Rate(a)
Amount
Distribution Date(b)
--------------
------------
-------------------
--------------------
Class A-1
3.864%
$
125,000,000
03/14/2011
Class A-1A
5.205%
$
217,220,000
09/14/2015
Class A-2
5.205%
$
180,030,000
09/14/2012
Class A-3
5.205%
$
25,000,000
10/14/2012
Class A-AB
5.182%
$
100,000,000
11/14/2014
Class A-4
5.205%
$
722,379,000
09/14/2015
Class A-M
5.205%
$
195,662,000
10/14/2015
Class A-J
5.205%
$
139,408,000
10/14/2015
Class X
0.096%
$1,956,613,760
12/14/2025
Class B
5.205%
$
14,675,000
10/14/2015
Class C
5.205%
$
26,903,000
10/14/2015
Class D
5.205%
$
17,121,000
10/14/2015
Class E
5.205%
$
17,120,000
10/14/2015
Class F
5.205%
$
19,566,000
10/14/2015
Class G
5.205%
$
19,566,000
11/14/2015
Class H
5.205%
$
26,904,000
11/14/2015
Class J
5.205%
$
19,566,000
11/14/2015
Class K
5.205%
$
19,566,000
11/14/2015
Class L
4.945%
$
7,337,000
11/14/2015
Class M
4.945%
$
9,783,000
11/14/2015
Class N
4.945%
$
4,892,000
11/14/2015
Class O
4.945%
$
4,891,000
11/14/2015
-3-
Class P
4.945%
$
4,892,000
11/14/2015
Class Q
4.945%
$
9,783,000
12/14/2015
Class S(c)
4.945%
$
29,349,760
12/14/2025
Class R-III(d)
N/A
N/A
N/A
(a)
On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (other than the
Residual
Certificates) will be determined as described herein under the
definition
of "Pass-Through Rate." The initial Pass-Through Rates shown above
are
approximate for the Class A-1A, Class A-2, Class A-3, ClassA-AB,
Class A-4,
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 and Class X Certificates.
(b)
The Final Scheduled Distribution Date for each Class of
Certificates is the
Distribution Date on which such Class is expected to be paid in
full,
assuming that timely payments (and no prepayments) will be made on
the
Mortgage Loans in accordance with their terms (except that each ARD
Loan
will be prepaid in full on its Anticipated Repayment Date).
(c)
The Class S Certificates represent ownership of a REMIC III Regular
Interest (entitled to the principal and interest set forth above).
In
addition, the Class S Certificates will be entitled to Excess
Interest
(which will not be a part of any REMIC Pool). The parties intend
that (i)
the portion of the Trust representing the Excess Interest and the
Excess
Interest Sub-account shall be treated as a grantor trust under
subpart E of
Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code and
(ii) the
Class S Certificates (other than the portion thereof consisting of
a REMIC
III Regular Interest) shall represent undivided beneficial
interests in the
portion of the Trust consisting of the entitlement to receive
Excess
Interest (the "Class S Grantor Trust").
(d)
The Class R-III Certificates will be entitled to receive the
proceeds of
any remaining assets in REMIC III after the principal amounts of
all
Classes of Certificates have been reduced to zero and any Realized
Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal
Balance of $1,956,613,760.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool
of assets
described in the first paragraph of Section 12.1(a) hereof
(including the
Mortgage Loans (other than any Excess Interest payable with respect
to such
Mortgage Loans)) to be treated for federal income tax purposes as a
real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular
Interests will be
designated as the "regular interests" in REMIC I and the Class R-I
Certificates
will be designated as the sole Class of "residual interests" in
REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool
of assets
described in the second paragraph of Section 12.1(a) hereof
consisting of the
REMIC I Regular Interests to be treated for federal income tax
purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II
Regular
Interests will be designated as the "regular interests" in REMIC II
and the
Class R-II Certificates will be designated as the sole Class of
"residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool
of assets
described in the third paragraph of Section 12.1(a) hereof
consisting of the
REMIC II Regular Interests to be treated for federal income tax
purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC
III Regular
Interests (including, in the case of the Class S Certificates, the
Class S REMIC
Interest represented by the Class S Certificates) will be
designated as the
"regular interests" in REMIC III and the Class R-III Certificates
(together with
the REMIC Regular Certificates, the "REMIC III Certificates") will
be designated
as the sole Class of "residual interests" in REMIC III for purposes
of the REMIC
Provisions.
-4-
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will treat the right to any Excess Interest
in respect of
the ARD Loans and the Excess Interest Sub-Account as a grantor
trust under
Subpart E of Part I of Subchapter J of the Code.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have
the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the mortgage
note (or notes) included in the Trust that is senior in right of
payment to the
related B Note to the extent set forth in the related Intercreditor
Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of the Certificate Account (but which are not
included in the
Trust) created and maintained by the Master Servicer pursuant to
Section 5.1(c)
on behalf of the holder of a related B Note. Any such
sub-account(s) shall be
maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means any Mortgage Loan serviced under this
Agreement that is divided into a senior mortgage note and a
subordinated
mortgage note, which senior mortgage note is included in the Trust.
References
herein to an A/B Mortgage Loan shall be construed to refer to the
aggregate
indebtedness under the related A Note and the related B Note. There
are no A/B
Mortgage Loans in the Trust.
"ACCOUNTANT" means a person engaged in the practice of accounting
who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution
Date and any Class of Interests or Principal Balance Certificates,
other than
the Residual Certificates, interest accrued during the Interest
Accrual Period
relating to such Distribution Date on the Aggregate Certificate
Balance of such
Class or Interest as of the close of business on the immediately
preceding
Distribution Date at the respective rates per annum set forth in
the definition
of the applicable Pass-Through Rate for each such Class. Accrued
Certificate
Interest on the Class X Certificates for each Distribution Date
will equal the
Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and
in
particular the REMIC Provisions and Section 856(e) of the Code),
the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an
interest
therein, in the case of the Mortgaged Properties securing any A/B
Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan
and Loan Pair
and any Loan Group).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the
extent not
collected from the related Mortgagor); (ii) Advance Interest that
cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify
the Master
Servicer, the Special Servicer, any applicable Non-
-5-
Serviced Mortgage Loan Master Servicer, any applicable Non-Serviced
Mortgage
Loan Special Servicer, the Primary Servicers, the Trustee, the
Paying Agent (or
any other Person) pursuant to the terms of this Agreement; (iv) to
the extent
not otherwise paid, any federal, state, or local taxes imposed on
the Trust or
its assets and paid from amounts on deposit in the Certificate
Account or
Distribution Account; and (v) to the extent not otherwise included
in the
calculation of a Realized Loss and not covered by indemnification
by one of the
parties hereto or otherwise, any other unanticipated cost,
liability, or expense
(or portion thereof) of the Trust (including costs of collecting
such amounts or
other Additional Trust Expenses) that the Trust has not recovered,
and in the
judgment of the Master Servicer (or Special Servicer) will not,
recover from the
related Mortgagor or Mortgaged Property or otherwise, including a
Modification
Loss described in clause (ii) of the definition thereof; provided,
however,
that, in the case of an A/B Mortgage Loan, "Additional Trust
Expense" shall not
include any of the foregoing amounts that have been recovered from
the related
Mortgagor or Mortgaged Property as a result of the subordination of
the related
B Note in accordance with the terms of the related Intercreditor
Agreement.
Notwithstanding anything to the contrary, "Additional Trust
Expenses" shall not
include allocable overhead of the Master Servicer, the Special
Servicer, any
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced
Mortgage Loan
Special Servicer, the Trustee, the Paying Agent or the Certificate
Registrar,
such as costs for office space, office equipment, supplies and
related expenses,
employee salaries and related expenses, and similar internal costs
and expenses.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage
Loan,
the sum of the Master Servicing Fee Rate, the Primary Servicing Fee
Rate, the
Excess Servicing Fee Rate, the Trustee Fee Rate and in the case of
any
Non-Serviced Mortgage Loan, the related Pari Passu Loan Servicing
Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer,
the
Special Servicer or the Trustee on outstanding Advances (other than
Unliquidated
Advances) pursuant to Section 4.5 of this Agreement and any
interest payable to
any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced
Mortgage Loan
Trustee or any Non-Serviced Mortgage Loan Fiscal Agent with respect
to Pari
Passu Loan Nonrecoverable Advances pursuant to Section 4.4(b)
hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal
from time to
time or such other publication as determined by the Trustee in its
reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the
Code,
if taken or not taken, as the case may be, would either (i)
endanger the status
of the Grantor Trust Pool as a grantor trust or (ii) result in the
imposition of
a tax upon the income of the Grantor Trust Pool or its respective
assets or
transactions.
-6-
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either
(i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section
9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool
or any of
their respective assets or transactions, including (without
limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the
tax on prohibited contributions set forth in Section 860G(d) of the
Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with
such specified
Person. For the purposes of this definition, "control" when used
with respect to
any specified Person means the power to direct the management and
policies of
such Person, directly or indirectly, whether through the ownership
of voting
securities, by contract or otherwise; and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular
Interests,
the REMIC II Regular Interests or REMIC III Regular Interests, as
the case may
be, at any date of determination. With respect to a Class of
Principal Balance
Certificates, REMIC I Regular Interests, REMIC II Regular Interests
or REMIC III
Regular Interests, Aggregate Certificate Balance shall mean the
aggregate of the
Certificate Balances of all Certificates or Interests, as the case
may be, of
that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination
and as the context may require, the aggregate of the Scheduled
Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to each ARD Loan,
the
anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising
property of the
same type as, and in the same geographic area as, the Mortgaged
Property being
appraised, which appraisal complies with the Uniform Standards of
Professional
Appraisal Practices and states the "market value" of the subject
property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair, not later than the earliest of (i) the
date 120 days
after the occurrence of any delinquency in payment with respect to
such Mortgage
Loan, A/B Mortgage Loan or Loan Pair if such delinquency remains
uncured, (ii)
the date 30 days after receipt of notice that the related Mortgagor
has filed a
bankruptcy petition or the related Mortgagor has become the subject
of
involuntary bankruptcy proceedings or the related Mortgagor has
consented to the
filing of a bankruptcy proceeding against it or a receiver is
appointed in
respect of the related Mortgaged Property, provided such petition
or appointment
is still in effect, (iii) the date that is 30 days following the
date the
related Mortgaged Property becomes an REO Property and (iv) the
effective date
of any modification to a Money Term of a Mortgage Loan, A/B
Mortgage Loan or
-7-
Loan Pair, other than an extension of the date that a Balloon
Payment is due for
a period of less than six months from the original due date of such
Balloon
Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is
performed
pursuant to Section 6.9, an amount equal to the excess of (A) the
sum of (i) the
Scheduled Principal Balance of such Mortgage Loan, Loan Pair or A/B
Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage
Loan) less
the principal amount of any guaranty or surety bond with a rating
of at least
"BBB-" (or its equivalent) by a nationally recognized statistical
rating
organization and the undrawn principal amount of any letter of
credit or debt
service reserve, if applicable, that is then securing such Mortgage
Loan or Loan
Pair, (ii) to the extent not previously advanced by the Master
Servicer or the
Trustee, all accrued and unpaid interest on such Mortgage Loan,
Loan Pair or A/B
Mortgage Loan at a per annum rate equal to the Mortgage Rate, (iii)
all
unreimbursed Advances (including Unliquidated Advances) and
interest on Advances
(other than Unliquidated Advances) at the Advance Rate with respect
to such
Mortgage Loan, Loan Pair or A/B Mortgage Loan, and (iv) to the
extent funds on
deposit in any applicable Escrow Accounts are not sufficient
therefor, and to
the extent not previously advanced by the Master Servicer, the
Special Servicer
or the Trustee, all currently due and unpaid real estate taxes and
assessments,
insurance premiums and, if applicable, ground rents and other
amounts which were
required to be deposited in any Escrow Account (but were not
deposited) in
respect of such Mortgaged Property or REO Property, as the case may
be, over (B)
90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged
Property or REO Property as determined by such Appraisal or
internal valuation,
as the case may be, plus the full amount of any escrows held by or
on behalf of
the Trustee as security for the Mortgage Loan, Loan Pair or A/B
Mortgage Loan
(less the estimated amount of the obligations anticipated to be
payable in the
next twelve months to which such escrows relate). Each Appraisal or
internal
valuation for a Required Appraisal Loan shall be updated annually
for so long as
an Appraisal Reduction exists. The Appraisal Reduction for each
Required
Appraisal Loan will be recalculated annually based on subsequent
Appraisals,
internal valuations or updates. In addition, the Operating Adviser
(including,
without limitation, any request of a B Note holder with respect to
the related
A/B Mortgage Loan (or Operating Adviser on their behalf) if there
shall have
been a determination that such holder will no longer be the
directing holder)
may at any time request the Special Servicer to obtain, at the
Operating
Adviser's expense, an updated Appraisal, with a corresponding
adjustment to the
amount of the Appraisal Reduction. Any Appraisal Reduction for any
Mortgage
Loan, Loan Pair or A/B Mortgage Loan shall be reduced to reflect
any Realized
Principal Losses on the Required Appraisal Loan, Loan Pair or A/B
Mortgage Loan.
Each Appraisal Reduction will be reduced to zero as of the date the
related
Mortgage Loan, Loan Pair or A/B Mortgage Loan is brought current
under the then
current terms of the Mortgage Loan, Loan Pair or A/B Mortgage Loan
for at least
three consecutive months, and no Appraisal Reduction will exist as
to any
Mortgage Loan, Loan Pair or A/B Mortgage Loan after it has been
paid in full,
liquidated, repurchased or otherwise disposed of. Any Appraisal
Reduction in
respect of any Non-Serviced Mortgage Loan shall be calculated in
accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement based
upon the applicable allocation of the items set forth in clauses
(A) and (B)
above between the Non-Serviced Mortgage Loans and the related
Non-Serviced
Companion Mortgage Loans and all other related pari passu loans.
Any Appraisal
Reduction in respect of any Loan Pair shall be allocated, as
between a Serviced
Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan, pro
rata according to their respective Principal Balances. Any
Appraisal Reduction
with
-8-
respect to an A/B Mortgage Loan shall be allocated first to the
related B Note,
up to the Principal Balance thereof, and any excess shall be
allocated to the
related A Note.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced
Mortgage Loan),
the appraised value thereof determined by an Appraisal of the
Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser
selected by the
Master Servicer or the Special Servicer, as applicable or, in the
case of an
internal valuation performed by the Special Servicer pursuant to
Section 6.9,
the value of the Mortgaged Property determined by such internal
valuation and
(ii) with respect to the Mortgaged Property relating to a
Non-Serviced Mortgage
Loan, the portion of the appraised value allocable thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the
Mortgage
Loan Schedule.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan,
any
assignment of leases, rents and profits or equivalent instrument,
whether
contained in the related Mortgage or executed separately, assigning
to the
holder or holders of such Mortgage all of the related Mortgagor's
interest in
the leases, rents and profits derived from the ownership,
operation, leasing or
disposition of all or a portion of the related Mortgaged Property
as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice
of transfer or equivalent instrument, in recordable form,
sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is
located to
reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of
transfer or equivalent instrument may be in the form of one or more
blanket
assignments covering the Mortgage Loans secured by Mortgaged
Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan or any B Note as to which advancing is required
hereunder for its
Maturity Date (provided that such Mortgage Loan or B Note has not
been paid in
full, and no Final Recovery Determination or other sale or
liquidation has
occurred in respect thereof, on or before the end of the Collection
Period in
which such Maturity Date occurs) and for any subsequent Due Date
therefor as of
which such Mortgage Loan or such B Note remains outstanding and
part of the
Trust, if no Scheduled Payment (other than the related delinquent
Balloon
Payment) is due for such Due Date, the scheduled monthly payment of
principal
and/or interest deemed to be due in respect thereof on such Due
Date equal to
the Scheduled Payment that would have been due in respect of such
Mortgage Loan
or such B Note on such Due Date, if it had been required to
continue to accrue
interest in accordance with its terms, and to pay principal in
accordance with
the amortization schedule in effect immediately prior to, and
without regard to
the occurrence of, its most recent Maturity Date (as such may have
been extended
in connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan or such B
Note granted or agreed to by the Master Servicer or the Special
Servicer
pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan
for any Due Date therefor as of which the related REO Property
remains part of
the Trust, the scheduled monthly payment of principal and interest
deemed to be
due in respect thereof on such Due Date equal to the Scheduled
Payment (or, in
the case of a Balloon Mortgage Loan or B Note described
-9-
in the preceding clause of this definition, the Assumed Scheduled
Payment) that
was due in respect of the related Mortgage Loan or the related B
Note on the
last Due Date prior to its becoming an REO Mortgage Loan. The
amount of the
Assumed Scheduled Payment for any A Note or B Note shall be
calculated solely by
reference to the terms of such A Note or B Note, as applicable (as
modified in
connection with any bankruptcy or similar proceeding involving the
related
Mortgagor or pursuant to a modification, waiver or amendment of
such Mortgage
Loan granted or agreed to by the Master Servicer or the Special
Servicer
pursuant to the terms hereof) and without regard to the remittance
provisions of
the related Intercreditor Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in
such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth
in
Section 4.6(a).
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all
amounts on
deposit in the Distribution Account as of the commencement of
business on such
Distribution Date that represent payments and other collections on
or in respect
of the Mortgage Loans and any REO Properties that were received by
the Master
Servicer or the Special Servicer through the end of the related
Collection
Period exclusive of (i) any such amounts that were deposited in the
Distribution
Account in error, (ii) amounts that are payable or reimbursable to
any Person
other than the Certificateholders (including amounts payable to the
Master
Servicer in respect of unpaid Master Servicing Fees, the Primary
Servicers in
respect of unpaid Primary Servicing Fees, the Special Servicer in
respect of
unpaid Special Servicer Compensation, the Trustee in respect of
unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to
the parties
entitled thereto in respect of the unpaid Excess Servicing Fees),
(iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date
occurs
during January, other than in a leap year, or February of any year,
the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in
the Interest
Reserve Account, (v) in the case of each REO Property related to an
A/B Mortgage
Loan or Loan Pair, all amounts received with respect to such A/B
Mortgage Loan
or Loan Pair that are required to be paid to the holder of the
related B Note or
Serviced Companion Mortgage Loan, as applicable, pursuant to the
terms of the
related B Note or Serviced Companion Mortgage Loan, as applicable,
and the
related Intercreditor Agreement or Loan Pair Intercreditor
Agreement (which
amounts will be deposited into the related A/B Loan Custodial
Account or
Serviced Companion Mortgage Loan Custodial Account, as applicable,
pursuant to
Section 5.1(c) and withdrawn from such accounts pursuant to Section
5.2(a)) and
(vi) Scheduled Payments collected but due on a Due Date subsequent
to the
related Collection Period and (b) if and to the extent not already
among the
amounts described in clause (a), (i) the aggregate amount of any
P&I Advances
made by the Master Servicer or the Trustee for such Distribution
Date pursuant
to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any
Compensating
Interest payments made by the Master Servicer for such Distribution
Date
pursuant to the terms hereof, and (iii) if such Distribution Date
occurs in
March of any year, commencing March 2006, the aggregate of the
Interest Reserve
Amounts then held on deposit in the Interest Reserve Account in
respect of each
Interest Reserve Loan.
-10-
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is
subordinated in
right of payment to the related A Note to the extent set forth in
the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments
based on an
amortization schedule that is significantly longer than its term to
maturity and
that is expected to have a remaining principal balance equal to or
greater than
5% of its original principal balance as of its stated maturity
date, unless
prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage
Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or
other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or
losses, if any,
resulting from any Debt Service Reduction Amount for the month in
which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a
Prepayment
Premium, and with respect to any Class of Certificates, a fraction
(A) whose
numerator is the greater of (x) zero and (y) the difference between
(i) the
Pass-Through Rate on that Class of Certificates and (ii) the
Discount Rate used
in calculating the Prepayment Premium with respect to the Principal
Prepayment
(or the current Discount Rate if not used in such calculation) and
(B) whose
denominator is the difference between (i) the Mortgage Rate on the
related
Mortgage Loan and (ii) the Discount Rate used in calculating the
Prepayment
Premium with respect to that Principal Prepayment (or the current
Discount Rate
if not used in such calculation), provided, however, that under no
circumstances
will the Base Interest Fraction be greater than one. If the
Discount Rate
referred to above is greater than the Mortgage Rate on the related
Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to
the
Paying Agent and the Master Servicer to the effect that any
proposed transfer
will not (i) cause the assets of the Trust to be regarded as plan
assets for
purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty
on the part of the Depositor, the Master Servicer, the Special
Servicer, the
Trustee, the Paying Agent or the Certificate Registrar.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial
interest in a Class of Certificates, ownership and transfer of
which shall be
made through book entries as described in Section 3.7; provided,
that after the
occurrence of a condition whereupon book-entry registration and
transfer are no
longer authorized and Definitive Certificates are to be issued to
the
Certificate Owners, such certificates shall no longer be
"Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, Des
Moines, Iowa
(but only with respect to matters related to the performance of
obligations of
Principal Global Investors, LLC as a Primary Servicer under the
applicable
Primary Servicing Agreement), Cincinnati, Ohio (but only with
-11-
respect to matters related to the performance of obligations of
Union Central
Mortgage Funding, Inc. as a Primary Servicer under the applicable
Primary
Servicing Agreement), San Francisco, California or the principal
cities in which
the Special Servicer, the Trustee, the Paying Agent or the Master
Servicer
conducts servicing or trust operations, or (iii) a day on which
banking
institutions or savings associations in Minneapolis, Minnesota, New
York, New
York, Chicago, Illinois or San Francisco, California are authorized
or obligated
by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other
than
a Mortgage Loan with respect to which the related Mortgaged
Property became REO
Property, the sale of such Defaulted Mortgage Loan. The Master
Servicer shall
maintain records in accordance with the Servicing Standard (and, in
the case of
Specially Serviced Mortgage Loans, based on the written reports
with respect to
such Cash Liquidation delivered by the Special Servicer to the
Master Servicer),
of each Cash Liquidation.
"CATEGORY 1 REQUEST" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are defined in the Principal
Global Investors,
LLC Primary Servicing Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established
and maintained by the Master Servicer (or any Sub-Servicer or any
Primary
Servicer on behalf of the Master Servicer) pursuant to Section
5.1(a), each of
which shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class X Certificates and the Residual Certificates) or
Interest as of
any Distribution Date, the maximum specified dollar amount of
principal to which
the Holder thereof is then entitled hereunder, such amount being
equal to the
initial principal amount set forth on the face of such Certificate
(in the case
of a Certificate), or as ascribed thereto in the Preliminary
Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all
principal
distributions previously made with respect to such Certificate
pursuant to
Section 6.5(a) or deemed to have been made with respect to such
Interest
pursuant to Section 6.2 or Section 6.3(a), as the case may be, and
(ii) all
Realized Losses allocated or deemed to have been allocated to such
Interest or
Certificate in reduction of Certificate Balance pursuant to Section
6.6, plus
(B) an amount equal to the amounts identified in clause (I)(C) of
the definition
of Principal Distribution Amount with respect to such Distribution
Date, such
increases to be allocated to the Principal Balance Certificates or
Interests in
sequential order (i.e. to the most senior Class first), in each
case up to the
amount of Realized Losses previously allocated thereto and not
otherwise
reimbursed hereunder.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate,
the Person who is the beneficial owner of such Book-Entry
Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a
Person
maintaining an account with such Clearing Agency (directly or as an
indirect
participant, in accordance with the rules of such Clearing Agency).
-12-
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning set forth in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class R-I Certificates and the Class R-II Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section
8.26(b).
"CERTIFYING PERSON" has the meaning set forth in Section 8.26(b).
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates
or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2
CERTIFICATES," "CLASS A-3 CERTIFICATES," "CLASS A-AB CERTIFICATES,"
"CLASS A-4
CERTIFICATES," "CLASS A-M CERTIFICATES," "CLASS A-J CERTIFICATES,"
"CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES,"
"CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES,"
"CLASS G
Certificates," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES,"
"CLASS K
CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES,"
"CLASS N
CERTIFICATES," "CLASS O CERTIFICATES," "CLASS P CERTIFICATES,"
"CLASS Q
CERTIFICATES," "CLASS S CERTIFICATES," "CLASS R-I CERTIFICATES,"
"CLASS R-II
CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the Certificates
designated as
"Class A-1," "Class A-1A," "Class A-2," "Class A-3," "Class A-AB,"
"Class A-4,"
"Class A-M," "Class A-J," "Class X," "Class B," "Class C," "Class
D," "Class E,"
"Class F," "Class G," "Class H," "Class J," "Class K," "Class L,"
"Class M,"
"Class N," "Class O," "Class P," "Class Q," "Class S," "Class R-I,"
"Class R-II"
and "Class R-III" respectively, on the face thereof, in
substantially the form
attached hereto as Exhibits.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-1A Certificates, the Class A-2 Certificates, the Class A-3
Certificates,
the Class A-AB Certificates and the Class A-4 Certificates,
collectively.
"CLASS S GRANTOR TRUST" means that portion of the Trust consisting
of
the Class S Grantor Trust Interest.
"CLASS S GRANTOR TRUST INTEREST" means that portion of the rights
represented by the Class S Certificates that evidences beneficial
ownership of
the Excess Interest and the Excess Interest Sub-account, as
described in Section
12.5(a) hereof.
"CLASS S REMIC INTEREST" means that portion of the rights
represented
by the Class S Certificates that evidences a regular interest in
REMIC III,
which rights consist of the rights to the distributions described
in Section 6.5
hereof and all other rights of the Holders of the Class S
Certificates other
than those comprising the Class S Grantor Trust.
"CLASS X CERTIFICATES" means the Class X Certificates.
-13-
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution
Date
and the related Interest Accrual Period, interest equal to the
product of (i)
one-twelfth of a per annum rate equal to the weighted average of
the Class X
Strip Rates for the REMIC III Regular Interests (other than the
Class X
Certificates), weighted on the basis of the respective Certificate
Balances of
such Classes, and (ii) the Class X Notional Amount for such
Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the
outstanding
Certificate Balances of the Principal Balance Certificates.
"CLASS X STRIP RATE" means, for any Distribution Date, with respect
to
any Class of REMIC III Regular Interests (other than the Class X
Certificates),
the excess, if any, of the Weighted Average REMIC I Net Mortgage
Rate for such
Distribution Date over the Pass-Through Rate for such Class of
REMIC III Regular
Interests.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially
shall be the
Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means November 30, 2005.
"CMSA" means the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, certificateholders,
issuers, the
placement agent and underwriters generally involved in the
commercial mortgage
loan securitization industry, which is the principal such
association or
organization in the commercial mortgage loan securitization
industry and whose
principal purpose is the establishment of industry standards for
reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be selected
by the Master Servicer and reasonably acceptable to the Trustee,
the Paying
Agent, the Special Servicer, the Primary Servicers and the majority
certificateholder of the Controlling Class.
"CMSA ADVANCE RECOVERY REPORT" means a report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Advance Recovery Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is
one
element of the CMSA Methodology for Analyzing and Reporting
Property Income
Statements and which is substantially in the form of Exhibit N.
-14-
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of
Treasury
regulations issued pursuant thereto in temporary or final form and
proposed
regulations thereunder, to the extent that, by reason of their
proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date,
the
period beginning on the day after the Determination Date in the
month preceding
the month of such Distribution Date (or in the case of the first
Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the
month in
which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution
Date,
an amount equal to the lesser of (A) the excess of (i) Prepayment
Interest
Shortfalls incurred in respect of the Mortgage Loans other than the
Specially
Serviced Mortgage Loans resulting from (x) voluntary Principal
Prepayments on
such Mortgage Loans (but not including any B Note, Non-Serviced
Companion
Mortgage Loan or Serviced Companion Mortgage Loan) or (y) to the
extent that the
Master Servicer did not apply the proceeds thereof in accordance
with the terms
of the related Mortgage Loan documents, involuntary Principal
Prepayments during
the related Collection Period over (ii) the aggregate of Prepayment
Interest
Excesses resulting from Principal Prepayments on the Mortgage Loans
(but not
including any B Note, Non-Serviced Companion Mortgage Loan or
Serviced Companion
Mortgage Loan) during the same Collection Period and (B) the
aggregate of the
portion of the aggregate Master Servicing Fee accrued at a rate per
annum equal
to 2 basis points for the related Collection Period calculated in
respect of all
the Mortgage Loans (including REO Mortgage Loans but not including
any B Note,
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage
Loan), plus
any investment income earned on the amount prepaid prior to such
Distribution
Date.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any
conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by
or to any
governmental, quasi-governmental authority or private entity with
condemnation
powers other than amounts to be applied to the restoration,
preservation or
repair of such Mortgaged Property or released to the related
Mortgagor in
accordance with the terms of the Mortgage Loan and (if applicable)
its related B
Note or Serviced Companion Mortgage Loan. With respect to the
Mortgaged Property
securing any Non-Serviced Mortgage Loan or Non-Serviced Companion
Mortgage Loan,
only the portion of such amounts payable to the holder of the
related
Non-Serviced Mortgage Loan shall be included in Condemnation
Proceeds, and with
respect to the Mortgaged Property securing any Loan Pair or A/B
Mortgage Loan,
only the portion of such amounts payable to the holder of the
related Serviced
Pari Passu Mortgage or A Note, as applicable, shall be included in
Condemnation
Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular
Certificates outstanding at any time of determination; provided,
that, if the
aggregate Certificate Balance of such Class is less than 25% of the
initial
Certificate Balance of such Class as of the
-15-
Closing Date, the Controlling Class shall be the next most
subordinate Class of
REMIC Regular Certificates outstanding. As of the Closing Date, the
Controlling
Class will be the Class Q Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933
Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the
presentment
and surrender of Certificates for any other purpose, the principal
corporate
trust office of the Certificate Registrar. The principal corporate
trust office
of the Trustee is presently located at 1 Federal Street, 3rd Floor,
Boston,
Massachusetts 02110, Attention: Morgan Stanley 2005-HQ7 and the
office of the
Certificate Registrar is presently located for certificate transfer
purposes at
135 S. LaSalle Street, Chicago, Illinois 60603, Attention: Global
Securities and
Trust Services Group - Morgan Stanley 2005-HQ7, or at such other
address as the
Trustee or Certificate Registrar may designate from time to time by
notice to
the Certificateholders, the Depositor, the Master Servicer, the
Paying Agent and
the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates as set
forth in the Preliminary Statement with respect to any
Corresponding REMIC II
Regular Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial
Certificate
Balance equal to the Principal Balance of such Mortgage Loan
outstanding as of
the Cut-Off Date, after taking into account all principal and
interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means the REMIC II
Regular
Interest as defined in the Preliminary Statement with respect to
any Class of
Corresponding Certificates.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section
2.3(a).
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated
with the Depositor and each Seller and satisfies the eligibility
requirements of
the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution
or other Person for whom the Clearing Agency effects book-entry
transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on November 1, 2005, or
with
respect to any Mortgage Loan that was originated in November 2005
that has its
first Scheduled Payment in January 2006, the date of origination.
The Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than
the first
day of each month shall be the end of business on November 1, 2005,
and
Scheduled Payments due in November 2005 with respect to Mortgage
Loans not
having Due Dates on the first of each month have been deemed
received on
November 1, 2005, not the actual day on which such Scheduled
Payments were due.
-16-
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the
amount calculated
for such date of determination in accordance with the procedures
set forth in
Exhibit T, whether or not the Mortgage Loan has an interest only
period that has
not expired as of the Cut-Off Date.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date
and
the related Determination Date, the amount of the reduction of the
Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a
result of any
proceeding under bankruptcy law or any similar proceeding (other
than a
Deficient Valuation Amount); provided, however, that in the case of
an amount
that is deferred, but not forgiven, such reduction shall include
only the net
present value (calculated at the related Mortgage Rate) of the
reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced
Companion
Mortgage Loan that is in default under the terms of the applicable
Mortgage Loan
documentation and for which any applicable grace period has
expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the United States Treasury obligations required to be pledged in
lieu of
prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan, Serviced Companion
Mortgage
Loan or B Note which requires or permits the related Mortgagor (or
permits the
holder of such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note to
require the related Mortgagor) to pledge Defeasance Collateral to
such holder in
lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section
2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan
(other
than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or
any Loan Pair, a valuation by a court of competent jurisdiction of
the Mortgaged
Property (or, with respect to a Non-Serviced Mortgage Loan or a
Serviced Pari
Passu Mortgage Loan, the pro rata portion of the valuation
allocable to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan, as
applicable)
relating to such Mortgage Loan, A/B Mortgage Loan or Loan Pair in
an amount less
than the then outstanding indebtedness under such Mortgage Loan,
A/B Mortgage
Loan or Loan Pair, which valuation results from a proceeding
initiated under the
United States Bankruptcy Code, as amended from time to time, and
that reduces
the amount the Mortgagor is required to pay under such Mortgage
Loan, A/B
Mortgage Loan or Loan Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each
Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan),
any A/B
Mortgage Loan or any Loan Pair, the amount by which the total
amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair
(excluding
interest not yet accrued), including the Principal Balance of such
Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid
interest
thereon and any other amounts recoverable from the Mortgagor with
respect
thereto pursuant to the terms thereof, is reduced in connection
with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari
Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related
A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of
the
-17-
A Note or Serviced Pari Passu Mortgage Loan, as applicable, under
the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or
more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Morgan Stanley Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated
the
Closing Date and by and among the Depositor, the Paying Agent and
the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date,
the
earlier of (i) the 9th day of the month in which such Distribution
Date occurs
or, if such day is not a Business Day, the immediately preceding
Business Day,
and (ii) the 4th Business Day prior to the related Distribution
Date, commencing
December 8, 2005.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the
management of
such REO Property, the holding of such REO Property primarily for
sale to
customers (other than a sale of an REO Property pursuant to and in
accordance
with Section 9.15) or the performance of any construction work
thereon, in each
case other than through an Independent Contractor; provided,
however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall
not be
considered to Directly Operate an REO Property solely because the
Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses
tenants, enters into or renews leases, deals with taxes and
insurance, or makes
decisions as to repairs, tenant improvements or capital
expenditures with
respect to such REO Property (including, without limitation,
construction
activity to effect repairs or in connection with leasing activity)
or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The
"Treasury
Rate," unless a different term methodology or source is otherwise
set forth in
the Mortgage Loan documents, is the yield calculated by the linear
interpolation
of the yields, as reported in Federal Reserve Statistical Release
H.15--Selected
Interest Rates under the heading "U.S. government
securities/Treasury constant
maturities" for the week ending prior to the date of the relevant
principal
prepayment, of U.S. Treasury constant maturities with a maturity
date (one
longer and one shorter) most nearly approximating the maturity date
(or the
Anticipated Repayment Date, if applicable) of the Mortgage Loan
prepaid. If
Release H.15 is no longer published, the Master Servicer will
select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or
instrumentality of
any of the foregoing (other than
-18-
an instrumentality which is a corporation if all of its activities
are subject
to tax and, except for FHLMC, a majority of its board of directors
is not
selected by any such governmental unit), (ii) a foreign government,
international organization or any agency or instrumentality of
either of the
foregoing, (iii) an organization (except certain farmers'
cooperatives described
in Section 521 of the Code) which is exempt from tax imposed by
Chapter 1 of the
Code (unless such organization is subject to the tax imposed by
Section 511 of
the Code on unrelated business taxable income), (iv) rural electric
and
telephone cooperatives described in Section 1381 of the Code, and
(v) any other
Person so designated by the Master Servicer based upon an Opinion
of Counsel
that the holding of an ownership interest in a Residual Certificate
by such
Person may cause any of the REMICs, or any Person having an
Ownership Interest
in any Class of Certificates, other than such Person, to incur a
liability for
any federal tax imposed under the Code that would not otherwise be
imposed but
for the transfer of an ownership interest in a Residual Certificate
to such
Person. The terms "United States," "State" and "international
organization"
shall have the meanings set forth in Section 7701 of the Code or
successor
provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class of Certificates (other than the
Residual
Certificates) or Interests, the sum of (A) Accrued Certificate
Interest in
respect of such Class or Classes or Interest, reduced (to not less
than zero) by
(i) any Net Aggregate Prepayment Interest Shortfalls for such Class
or Classes
of Certificates or Interests, allocated on such Distribution Date
to such Class
or Classes or Interest pursuant to Section 6.7, and (ii) Realized
Losses
allocated on such Distribution Date to reduce the Distributable
Certificate
Interest payable to such Class or Classes or Interest pursuant to
Section 6.6,
plus (B) the Unpaid Interest, plus (C) if the Aggregate Certificate
Balance is
reduced because of a diversion of principal in accordance with
Section
5.2(a)(II)(iv), and there is a subsequent recovery of amounts as
described in
Section 6.6(c)(i), then interest at the applicable Pass-Through
Rate that would
have accrued and been distributable with respect to the amount that
the
Aggregate Certificate Balance was so reduced, which interest shall
accrue from
the date that the related Realized Loss is allocated through the
end of the
Interest Accrual Period related to the Distribution Date on which
such amounts
are subsequently recovered.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the
provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 14th day of each month or, if such
day
is not a Business Day, the next succeeding Business Day, commencing
December 14,
2005.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled
Payment is
due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of
the
following: (i) maintained with a depository institution or trust
company whose
(A) commercial paper, short-term unsecured debt obligations or
other short-term
deposits are rated at least "P-1" by Moody's and "A-1" by S&P,
if the deposits
are to be held in the account for 30 days or less, or (B) long-term
unsecured
debt obligations are rated at least "Aa3" by Moody's and at least
"AA-" by S&P
(or "A-"), if the short-term unsecured debt obligations are rated
at least
"A-1"), if the deposits are to be held in the account more than 30
days or (ii)
a segregated trust account or accounts maintained in the trust
department of the
Trustee, the Paying Agent or other financial institution
-19-
having a combined capital and surplus of at least $50,000,000 and
subject to
regulations regarding fiduciary funds on deposit similar to Title
12 of the Code
of Federal Regulations Section 9.10(b) and whose long-term senior
unsecured debt
obligations or other long-term deposits, or the Trustee's or Paying
Agent's
parent's long-term senior unsecured debt obligations or other
long-term
deposits, are rated at least "Baa3" by Moody's, or (iii) an account
or accounts
of a depository institution acceptable to each Rating Agency, as
evidenced by
Rating Agency Confirmation with respect to the use of any such
account as the
Certificate Account or the Distribution Account. Notwithstanding
anything in the
foregoing to the contrary, an account shall not fail to be an
Eligible Account
solely because it is maintained with Wells Fargo Bank, National
Association, a
wholly-owned subsidiary of Wells Fargo & Co., provided that
such subsidiary's or
its parent's (A) commercial paper, short-term unsecured debt
obligations or
other short-term deposits are at least "P-1" in the case of
Moody's, and "A-1"
in the case of S&P, if the deposits are to be held in the
account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at
least "Aa3" in
the case of Moody's and at least "AA-" in the case of S&P, if
the deposits are
to be held in the account for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America, FNMA,
FHLMC or any agency or instrumentality of the United States of
America the
obligations of which are backed by the full faith and credit of the
United
States of America; provided that any obligation of FNMA or FHLMC,
other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an
Eligible
Investment only if Rating Agency Confirmation is obtained with
respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers'
acceptances issued by,
any depository institution or trust company (including the Trustee,
the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate
of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee,
acting in its
commercial capacity) incorporated or organized under the laws of
the United
States of America or any State thereof and subject to supervision
and
examination by federal or state banking authorities, so long as the
commercial
paper or other short-term debt obligations of such depository
institution or
trust company are rated "A-1" by S&P and "Prime-1" by Moody's
or the long-term
unsecured debt obligations of such depository institution or trust
company have
been assigned a rating by each Rating Agency at least equal "AA-"
by S&P and
"Aa2" by Moody's or its equivalent or, in each case, if not rated
by a Rating
Agency, then such Rating Agency has issued a Rating Agency
Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining
maturity of one year or less and where such repurchase obligation
has been
entered into with a depository institution or trust company (acting
as
principal) described in clause (ii) above and where such repurchase
obligation
will mature prior to the Business Day preceding the next date upon
which, as
described in this Agreement, such amounts are required to be
withdrawn from the
Certificate Account and which meets the minimum rating requirement
for such
entity described above (or for which Rating Agency Confirmation is
obtained with
respect to such ratings);
-20-
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any
corporation
incorporated under the laws of the United States of America or any
state
thereof, which securities are rated "AA-" or its equivalent by each
Rating
Agency, unless otherwise specified in writing by the Rating Agency;
provided
that securities issued by any particular corporation will not be
Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such
corporation and
held in the Certificate Account to exceed 5% of the sum of the
aggregate
Certificate Principal Balance of the Principal Balance Certificates
and the
aggregate principal amount of all Eligible Investments in the
Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a
specified date not more than one year after the date of issuance
thereof) rated
"A-1" by S&P and "Prime-1" by Moody's (or for which Rating
Agency Confirmation
is obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that are rated in the highest long-term category by Moody's, or if
not rated by
Moody's then Moody's has issued a Rating Agency Confirmation, and
"AAAm" by S &
P;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation
whose
long-term unsecured debt rating is not less than "Aa2" by Moody's
and "AA-" by
S&P, or for which Rating Agency Confirmation is obtained with
respect to such
ratings;
(viii) any money market funds (including those managed or advised
by the Paying Agent or its affiliates) that maintain a constant
asset value and
that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by
S&P and "Aaa"
(or its equivalent) by Moody's, and any other demand, money-market
or time
deposit, or any other obligation, security or investment, with
respect to which
Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the
meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an
Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master
Servicer at
the Master Servicer's expense), as are acceptable to the Rating
Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted
investments"
that are "cash flow investments" under Section 860G(a)(5) of the
Code;
provided (A) such investment is held for a temporary period
pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is
payable by
the obligor in U.S. dollars, and (C) that no such instrument shall
be an
Eligible Investment (1) if such instrument evidences either (a) a
right to
receive only interest payments or only principal payments with
respect to the
obligations underlying such instrument or (b) a right to receive
both principal
and interest payments derived from obligations underlying such
instrument and
the principal and interest payments with respect to such instrument
provide a
yield to maturity of greater than 120% of the yield to maturity at
par of such
underlying obligations, or (2) if it may be redeemed at a price
below the
purchase price or (3) if it is not treated as a "permitted
investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and
provided,
further, that any such instrument shall have a maturity date no
later than the
date such instrument is required to be used to satisfy the
obligations under
this Agreement, and, in any event, shall not have a maturity in
excess of one
year; any such instrument must have a predetermined fixed dollar of
principal
due at maturity that cannot vary or change; if rated, the
obligation must not
have an "r" highlighter
-21-
affixed to its rating; interest on any variable rate instrument
shall be tied to
a single interest rate index plus a single fixed spread (if any)
and move
proportionally with that index; and provided, further, that no
amount
beneficially owned by any REMIC Pool (including any amounts
collected by the
Master Servicer but not yet deposited in the Certificate Account)
may be
invested in investments treated as equity interests for Federal
income tax
purposes. No Eligible Investments shall be purchased at a price in
excess of
par. For the purpose of this definition, units of investment funds
(including
money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property,
any insurance
policy covering pollution conditions and/or other environmental
conditions that
is maintained from time to time in respect of such Mortgage Loan,
Mortgaged
Property or REO Property, as the case may be, for the benefit of,
among others,
the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees,
permits, concessions, grants, franchises, licenses, agreements or
other
governmental restrictions, now or hereafter in effect, relating to
health or the
environment or to emissions, discharges or releases of chemical
substances,
including, without limitation, any and all pollutants,
contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon,
industrial,
toxic or hazardous substances or wastes, into the environment,
including,
without limitation, ambient air, surface water, ground water or
land, or
otherwise relating to the manufacture, processing, distribution,
use, labeling,
registration, treatment, storage, disposal, transport or handling
of any of the
foregoing substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended.
"ESCROW ACCOUNT" means an account established by or on behalf of
the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water
rates,
Standard Hazard Insurance Policy premiums, ground lease payments,
reserves for
capital improvements, deferred maintenance, repairs, tenant
improvements,
leasing commissions, rental achievements, environmental matters and
other
reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator of
the
Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan if an ARD Loan
is
not prepaid in full on or before its Anticipated Repayment Date,
the excess, if
any of (i) interest accrued at the rate of interest applicable to
such Mortgage
Loan after such Anticipated Repayment Date (plus any interest on
such interest
as may be provided for under the related Mortgage Loan documents)
over (ii)
interest accrued at the rate of interest applicable to such
-22-
Mortgage Loan before such Anticipated Repayment Date. Excess
Interest on an ARD
Loan is an asset of the Trust, but shall not be an asset of any
REMIC Pool
formed hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account
deemed
to be a sub-account of the Distribution Account. The Excess
Interest Sub-account
shall not be an asset of any REMIC Pool.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or
related REO
Property, over (ii) the amount that would have been received if a
Principal
Prepayment in full had been made with respect to such Mortgage Loan
(or, in the
case of an REO Property related to an A/B Mortgage Loan, a
Principal Prepayment
in full had been made with respect to both the related A Note and B
Note, or, in
the case of an REO Property related to a Loan Pair, a Principal
Prepayment in
full had been made with respect to both the Serviced Pari Passu
Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds
were
received plus accrued and unpaid interest with respect to such
Mortgage Loan and
any and all expenses (including Additional Trust Expenses and
Unliquidated
Advances) with respect to such Mortgage Loan.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans or
the Serviced Companion Mortgage Loans for which an "excess
servicing fee rate"
is designated on the Mortgage Loan Schedule, the monthly fee
payable to Wells
Fargo Bank, National Association or its successors and assigns as
holder of
excess servicing rights, which fee shall accrue on the Scheduled
Principal
Balance of each such Mortgage Loan immediately prior to the Due
Date occurring
in each month at the per annum rate (determined in the same manner
as the
applicable Mortgage Rate for such Mortgage Loan is determined for
such month)
specified on the Mortgage Loan Schedule (the "Excess Servicing Fee
Rate"). The
holder of excess servicing rights is entitled to Excess Servicing
Fees only with
respect to the Mortgage Loans or Serviced Companion Mortgage Loans
as indicated
on Exhibit J hereto.
"EXCHANGE ACT" has the meaning set forth in Section 8.26(a).
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially
in the form set forth in Exhibit H hereto executed by a holder of
an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as
applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation
of asset pool
investment trusts granted by the United States Department of Labor
to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of
an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
-23-
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect
to
any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or
Serviced
Companion Mortgage Loan by the Special Servicer in consultation
with the
Operating Adviser and the Master Servicer (including a Mortgage
Loan, a Serviced
Companion Mortgage Loan or a B Note that became an REO Property),
in each case,
in its good faith discretion, consistent with the Servicing
Standard, that all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Purchase
Proceeds and other payments or recoveries that the Special Servicer
expects to
be finally recoverable on such Mortgage Loan, Serviced Companion
Mortgage Loan
or B Note, without regard to any obligation of the Master Servicer,
the Special
Servicer or the Trustee, as the case may be, to make payments from
its own funds
pursuant to Article IV hereof, have been recovered. The Special
Servicer shall
be required to provide the Master Servicer with prompt written
notice of any
Final Recovery Determination with respect to any Specially Serviced
Mortgage
Loan upon making such determination. The Master Servicer shall
notify the
Trustee and the Paying Agent of such determination and the Paying
Agent shall
deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be
paid in full if
payments were made on the Mortgage Loans in accordance with their
terms, except
that ARD Loans are assumed to be repaid on their Anticipated
Repayment Dates.
"FINANCIAL MARKET PUBLISHERS" means Trepp, LLC and Intex Solutions,
Inc., or any successor entities thereof.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent
Global
Certificate.
"GRANTOR TRUST POOL" means the segregated pool of assets designated
as
the "Class S Grantor Trust" pursuant to Section 12.5 hereof.
"HOLDER" means the Person in whose name a Certificate is registered
on
the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not
Qualified
Institutional Buyers, a Certificate in definitive, fully registered
certificated
form without interest coupons.
-24-
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of
the Securities
and Exchange Commission's Regulation S-X. Independent means, when
used with
respect to any other Person, a Person who (A) is in fact
independent of another
specified Person and any Affiliate of such other Person, (B) does
not have any
material direct or indirect financial interest in such other Person
or any
Affiliate of such other Person, (C) is not connected with such
other Person or
any Affiliate of such other Person as an officer, employee,
promoter,
underwriter, trustee, partner, director or Person performing
similar functions
and (D) is not a member of the immediate family of a Person defined
in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan,
any Person
designated by the Master Servicer (other than the Master Servicer,
but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially
Serviced
Mortgage Loan, any Person designated by the Special Servicer that
would be an
"independent contractor" with respect to a REMIC Pool within the
meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment
trust (except that the ownership test set forth in such Section
shall be
considered to be met by any Person that owns, directly or
indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as
the case may
be, of any Class of the Certificates (other than the Residual
Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or
such other
interest in any Class of the Certificates or of the applicable
REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to
the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive
any income
from such Person and provided that the relationship between such
Person and such
REMIC is at arm's length, all within the meaning of Treasury
Regulations Section
1.856-4(b)(5), or (ii) any other Person (including the Master
Servicer or the
Special Servicer) upon receipt by the Trustee of an Opinion of
Counsel, which
shall be at the expense of the Person delivering such opinion to
the Trustee, to
the effect that the taking of any action in respect of any REO
Property by such
Person, subject to any conditions therein specified, that is
otherwise herein
contemplated to be taken by an Independent Contractor will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code (determined without regard to the
exception
applicable for purposes of Section 860D(a) of the Code), or cause
any income
realized in respect of such REO Property to fail to qualify as
Rents from Real
Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing
Date and, with
respect to Mortgage Loans Nos. 50, 229, 258 and 297, which were
originated in
November 2005 and have their first Due Dates in January 2006, an
amount equal to
$133,035.83, which amount represents one month's interest on the
initial
Principal Balance of such Mortgage Loans.
"INITIAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"INSPECTION REPORT" means the report delivered by the Master
Servicer
or the Special Servicer, as the case may be, substantially in the
form of
Exhibit L hereto.
-25-
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy,
terrorism
insurance policy or Environmental Insurance Policy relating to the
Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date
or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to
the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced
Companion
Mortgage Loan, the related B Note or the Servicing Standard. With
respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or
Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable
to the holder
of the related Non-Serviced Mortgage Loan shall be included in
Insurance
Proceeds, and with respect to the Mortgaged Property securing any
Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the
holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as
applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage
Loan,
the related intercreditor agreement by and between the holder of
the related A
Note(s) and the holder of the related B Note relating to the
relative rights of
such holders of the respective A Note(s) and B Note, as the same
may be further
amended from time to time in accordance with the terms thereof.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than
the Residual
Certificates), the period beginning on the first day of the month
preceding the
month in which such Distribution Date occurs and ending on the last
day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which
account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section
5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of
twelve (12)
30-day months.
"INTERESTED PERSON" means, as of any date of determination, the
Master
Servicer, the Special Servicer, the Depositor, the holder of any
related Junior
Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or
more of the Controlling Class, the Operating Adviser, any
Independent Contractor
engaged by the Master Servicer or the Special Servicer pursuant to
this
Agreement, or any Person actually known to a Responsible Officer of
the Trustee
to be an Affiliate of any of them.
-26-
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that
is
secured by a lien that is junior in right of payment to the lien of
the Mortgage
securing the related Mortgage Note.
"LASALLE" has the meaning set forth in the Preliminary Statement
hereto.
"LASALLE LOANS" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and
shown on
Schedule I hereto.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
Serviced
Companion Mortgage Loan or B Note, all amounts received during any
Collection
Period, whether as late payments or as Liquidation Proceeds,
Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that
represent payments
or collections of Scheduled Payments due but delinquent for a
previous
Collection Period and not previously recovered.
"LATE FEE" means a fee payable to the Master Servicer or the
Special
Servicer, as the case may be, to the extent actually collected from
the
Mortgagor as provided in the related Mortgage Loan, Serviced
Companion Mortgage
Loan or the related B Note in connection with a late payment made
by such
Mortgagor. References in this Agreement to Late Fees and default
interest in
respect of any Loan Pair or in respect of any Non-Serviced Mortgage
Loan and its
related Non-Serviced Companion Mortgage Loan shall mean only the
portion thereof
that is received by the Trust in accordance with the applicable
Loan Pair
Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor
Agreement.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred
by the Special Servicer on behalf of the Trust in connection with
the
liquidation of any Specially Serviced Mortgage Loan or REO Property
acquired in
respect thereof including, without limitation, reasonable legal
fees and
expenses in connection with a closing, brokerage commissions and
conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation
Expenses
relating to disposition of the Specially Serviced Mortgage Loan
shall be (i)
paid out of income from the related REO Property, to the extent
available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by
the Master
Servicer or the Special Servicer, subject to Section 4.4 and
Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and
(y)
the Liquidation Proceeds received in connection with a final
disposition of a
Specially Serviced Mortgage Loan or REO Property or portion thereof
and any
Condemnation Proceeds and Insurance Proceeds received by the Trust
(net of any
expenses incurred by the Special Servicer on behalf of the Trust in
connection
with the collection of such Condemnation Proceeds and Insurance
Proceeds) other
than Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds received
in connection with any Non-Serviced Mortgage Loan. For the
avoidance of doubt, a
Liquidation Fee will be payable in connection with a repurchase of
an A Note by
the holder of the related B Note only to the extent set forth in
the related
Intercreditor Agreement.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation
(provided that for the purposes of calculating Liquidation Fees
hereunder,
Liquidation Proceeds shall not include any proceeds from a
repurchase of a
Mortgage Loan by a Seller due to a Material Breach of a
representation or
warranty or Material Document Defect) of a Mortgage Loan, a
Serviced
-27-
Companion Mortgage Loan or a B Note or related REO Property (net of
Liquidation
Expenses). With respect to the mortgaged property or properties
securing any
Non-Serviced Mortgage Loan or Non-Serviced Companion Mortgage Loan,
only the
portion of such amounts payable to the holder of the related
Non-Serviced
Mortgage Loan will be included in Liquidation Proceeds, and with
respect to the
mortgaged property or properties securing any Loan Pair or A/B
Mortgage Loan,
only an allocable portion of such Liquidation Proceeds will be
distributable to
the Certificateholders.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage
Loan
or REO Property, as the case may be, as to which a Cash Liquidation
or REO
Disposition has occurred, an amount equal to the sum, without
duplication, of
(A) the Principal Balance (as increased by any Unliquidated Advance
with respect
to such Mortgage Loan) of the Mortgage Loan (or such deemed
Principal Balance,
in the case of an REO Mortgage Loan) as of the date of the Cash
Liquidation or
REO Disposition (adjusted in accordance with Section 6.6(c)(i)),
plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage
Rate (including
interest accrued and unpaid on the portion of the Principal Balance
added in
accordance with Section 6.6(c)(i), which interest shall accrue from
the date of
the reduction in the Principal Balance resulting from the
allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any
expenses
(including Additional Trust Expenses, unpaid Servicing Advances and
unpaid
Advance Interest) incurred in connection with such Mortgage Loan
that have been
paid or are payable or reimbursable to any Person, other than
amounts included
in the definition of Liquidation Expenses and amounts previously
treated as
Expense Losses attributable to principal (and interest thereon)
minus the sum of
(i) REO Income applied as recoveries of principal or interest on
the related
Mortgage Loan or REO Property, and (ii) Liquidation Proceeds,
Condemnation
Proceeds, Insurance Proceeds, Late Collections and all other
amounts recovered
from the related Mortgagor and received during the Collection
Period in which
such Cash Liquidation or REO Disposition occurred and which are not
required
under any Intercreditor Agreement, any Loan Pair Intercreditor
Agreement or
Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or
reimbursable
to any holder of a B Note, a Serviced Companion Mortgage Loan or a
Non-Serviced
Companion Mortgage Loan. REO Income and Liquidation Proceeds shall
be applied
first to reimburse the Master Servicer, the Special Servicer and
the Trustee, as
applicable, to the extent that Section 5.2(a)(I) otherwise entitles
such party
to reimbursement, for any Nonrecoverable Advance with respect to
the related
Mortgage Loan, and then for all Workout-Delayed Reimbursement
Amounts with
respect to such related Mortgage Loan (but not any such amount that
has become
Unliquidated Advances), and any remaining REO Income and
Liquidation Proceeds
and any Condemnation Proceeds and Insurance Proceeds shall be
applied first
against any Additional Trust Expenses (to the extent not included
in the
definition of Liquidation Expenses) for such Mortgage Loan, next as
a recovery
of any Nonrecoverable Advance (and interest thereon) with respect
to such
Mortgage Loan previously paid from principal collections pursuant
to Section
5.2(a)(II), next to any Unliquidated Advances with respect to such
Mortgage
Loan, next to the unpaid interest on the Mortgage Loan, calculated
as described
in clause (B) above, and then against the Principal Balance of such
Mortgage
Loan, calculated as described in clause (A) above.
"LOAN GROUP" means either Loan Group 1 or Loan Group 2, as the case
may be.
-28-
"LOAN GROUP PRINCIPAL DISTRIBUTION AMOUNT" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal
Distribution Amount,
as applicable.
"LOAN GROUP 1" means all of the Mortgage Loans that are Loan Group
1
Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"LOAN GROUP 1 MORTGAGE LOAN" means any Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 1.
"LOAN GROUP 1 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"LOAN GROUP 2" means all of the Mortgage Loans that are Loan Group
2
Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"LOAN GROUP 2 MORTGAGE LOAN" means any Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 2.
"LOAN GROUP 2 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"LOAN PAIR" means a Serviced Pari Passu Mortgage Loan and the
related
Serviced Companion Mortgage Loan, collectively. There are no Loan
Pairs in the
Trust.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the
holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced
Companion
Mortgage Loan relating to the relative rights of such holders, as
the same may
be further amended from time to time in accordance with the terms
thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage
Loan, the fraction, expressed as a percentage, the numerator of
which is the
Principal Balance of such Mortgage Loan at the date of
determination and the
denominator of which is the value of the Mortgaged Property as
shown on the most
recent Appraisal or valuation of the Mortgaged Property which is
available as of
such date or, in the case of any Non-Serviced Mortgage Loan or Loan
Pair, the
allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a
depositary institution and the Master Servicer (or the applicable
Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a
Lock-Box Account is
created.
"LOSSES" has the meaning set forth in Section 12.4.
-29-
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section
7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section
7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Wells Fargo Bank, National Association and
its
permitted successors or assigns.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in
Section
8.3(a).
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in Section
8.25(a).
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution
Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the
Master Servicer
and the Paying Agent containing such information regarding the
Mortgage Loans as
will permit the Paying Agent to calculate the amounts to be
distributed to the
Certificateholders pursuant to this Agreement and to furnish the
Monthly
Certificateholders Report to Certificateholders required to be
delivered
hereunder and containing such additional information as the Master
Servicer, the
Paying Agent and the Depositor may from time to time mutually
agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan, Serviced Companion Mortgage Loan and B Note
(including REO
Mortgage Loans and Defeasance Loans) but not as to any Non-Serviced
Mortgage
Loan (as to which there is no Master Servicing Fee payable to the
Master
Servicer under this Trust), an amount equal to the Master Servicing
Fee Rate
applicable to such month (determined in the same manner (other than
the rate of
accrual) as the applicable Mortgage Rate is determined for such
Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month)
multiplied by the
Scheduled Principal Balance of such Mortgage Loan, Serviced
Companion Mortgage
Loan or B Note immediately before the Due Date occurring in such
month, subject
to reduction in respect of Compensating Interest, as set forth in
Section
8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage
Loan,
Serviced Companion Mortgage Loan and B Note (including any Mortgage
Loan
relating to an REO Property), the rate per annum specified as such
on the
Mortgage Loan Schedule. With respect to a Non-Serviced Mortgage
Loan, no Master
Servicing Fee Rate is charged by the Master Servicer, but the Pari
Passu Loan
Servicing Fee Rate is charged by the applicable Non-Serviced
Mortgage Loan
Master Servicer pursuant to the related Non-Serviced Mortgage Loan
Pooling and
Servicing Agreement.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section
2.3(a).
-30-
"MATURITY DATE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as of any date of determination,
the date on
which the last payment of principal is due and payable thereunder,
after taking
into account all Principal Prepayments received and any Deficient
Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan,
Serviced
Companion Mortgage Loan or B Note occurring prior to such date of
determination,
but without giving effect to (i) any acceleration of the principal
of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note or (ii)
any grace
period permitted by such Mortgage Loan, B Note or Serviced
Companion Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor
by
the Master Servicer in connection with a modification of any
Mortgage Loan
(other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B
Note other than a Specially Serviced Mortgage Loan or collected in
connection
with a modification by the Special Servicer of a Specially Serviced
Mortgage
Loan.
"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i)
a
decrease in the Principal Balance of such Mortgage Loan as a result
of a
modification thereof in accordance with the terms hereof, (ii) any
expenses
connected with such modification, to the extent (x) reimbursable to
the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered
from the
Mortgagor or (iii) in the case of a modification of such Mortgage
Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of
the amount
of interest that would have accrued at a rate equal to the original
Mortgage
Rate, over interest that actually accrued on such Mortgage Loan
during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage
Rate, Principal
Balance, amortization term or payment frequency thereof or any
provision thereof
requiring the payment of a prepayment premium, yield maintenance
charge or
percentage premium in connection with a principal prepayment (and
shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided
pursuant
to Section 5.4 by the Paying Agent monthly as of the related
Determination Date
generally in the form and substance of Exhibit M, which sets forth,
to the
extent applicable: (i) the amount, if any, of such distributions to
the holders
of each Class of Principal Balance Certificates applied to reduce
the respective
Certificate Balances thereof; (ii) the amount of such distribution
to holders of
each Class of Certificates allocable to (A) interest accrued
(including Excess
Interest) at the respective Pass-Through Rates, less any Net
Aggregate
Prepayment Interest Shortfalls and (B) Prepayment Premiums; (iii)
the number of
outstanding Mortgage Loans and the aggregate Principal Balance and
Scheduled
Principal Balance of the Mortgage Loans at the close of business on
such
Determination Date; (iv) the number and aggregate Scheduled
Principal Balance of
Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89
days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings
have been
commenced, or (E) as to which bankruptcy proceedings have been
commenced; (v)
with respect to any REO Property included in the Trust, the
Principal Balance of
the related Mortgage Loan as of the date of acquisition of the REO
Property and
the Scheduled Principal Balance thereof; (vi) as of the related
Determination
Date (A) as to any REO Property sold during the related Collection
-31-
Period, the date of the related determination by the Special
Servicer that it
has recovered all payments which it expects to be finally
recoverable and the
amount of the proceeds of such sale deposited into the Certificate
Account, and
(B) the aggregate amount of other revenues collected by the Special
Servicer
with respect to each REO Property during the related Collection
Period and
credited to the Certificate Account, in each case identifying such
REO Property
by the loan number of the related Mortgage Loan; (vii) the
Aggregate Certificate
Balance or Notional Amount, as the case may be, of each Class of
Certificates
before and after giving effect to the distribution made on such
Distribution
Date; (viii) the aggregate amount of Principal Prepayments made
during the
related Collection Period; (ix) the Pass-Through Rate applicable to
each Class
of Certificates for such Distribution Date; (x) the aggregate
amount of the
Master Servicing Fee, the Primary Servicing Fee, the Special
Servicing Fee, the
Excess Servicing Fees and the fees paid to the applicable
Non-Serviced Mortgage
Loan Master Servicer and the Non-Serviced Mortgage Loan Special
Servicer solely
as such fees relate to the Non-Serviced Mortgage Loans; (xi) the
amount of
Unpaid Interest and Realized Losses, if any, incurred with respect
to the
Mortgage Loans, including a breakout by type of such Realized
Losses; (xii) the
aggregate amount of Servicing Advances and P&I Advances
outstanding separately
stated that have been made by the Master Servicer, the Special
Servicer and the
Trustee and the aggregate amount of Servicing Advances and P&I
Advances made by
the applicable Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced
Mortgage Loan Special Servicer in respect of the Non-Serviced
Mortgage Loans and
(xiii) the amount of any Appraisal Reductions effected during the
related
Collection Period on a loan-by-loan basis and the total Appraisal
Reductions in
effect as of such Distribution Date (and in the case of the
Non-Serviced
Mortgage Loans, the amount of any appraisal reductions effected
under the
related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement). In the case
of information furnished pursuant to subclauses (i), (ii) and (xi)
above, the
amounts shall be expressed in the aggregate and as a dollar amount
per $1,000 of
original principal amount of the Certificates for all Certificates
of each
applicable Class.
"MOODY'S" means Moody's Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements,
endorsed "Pay to the order of U.S. Bank National Association, as
Trustee for
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates,
Series 2005-HQ7, without recourse, representation or warranty" or
if the
original Mortgage Note is not included therein, then a lost note
affidavit with
a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed) or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 45th day following the Closing Date because of a delay
caused by
the public recording office where
-32-
such original Mortgage has been delivered for recordation or
because such
original Mortgage has been lost, the Seller shall deliver or cause
to be
delivered to the Trustee a true and correct copy of such Mortgage,
together with
(A) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the applicable Seller stating that such original
Mortgage has
been sent to the appropriate public recording official for
recordation or (B) in
the case of an original Mortgage that has been lost after
recordation, a
certification by the appropriate county recording office where such
Mortgage is
recorded that such copy is a true and complete copy of the original
recorded
Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon, or if any such original
modification,
consolidation or extension agreements have been delivered to the
appropriate
recording office for recordation and either have not yet been
returned on or
prior to the 45th day following the Closing Date with evidence of
recordation
thereon or have been lost after recordation, true copies of such
modifications,
consolidations or extensions certified by the applicable Seller
together with
(A) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the applicable Seller stating that such original
modification,
consolidation or extension agreement has been dispatched or sent to
the
appropriate public recording official for recordation or (B) in the
case of an
original modification, consolidation or extension agreement that
has been lost
after recordation, a certification by the appropriate county
recording office
where such document is recorded that such copy is a true and
complete copy of
the original recorded modification, consolidation or extension
agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder
of record in
favor of "U.S. Bank National Association, as Trustee for Morgan
Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ7";
provided, if the related Mortgage has been recorded in the name of
MERS or its
designee, no Assignment of Mortgage in favor of the Trustee will be
required to
be submitted for recording or filing and instead, the applicable
Seller shall
take all actions as are necessary to cause the Trustee to be shown
as, the owner
of the related Mortgage on the record of MERS for purposes of the
system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and
shall deliver to the Special Servicer and the Trustee evidence
confirming that
the Trustee is shown as the owner on the record of MERS;
(v) originals of all intervening assignments of Mortgage (except
with
respect to any Mortgage that has been recorded in the name of MERS
or its
designees), if any, with evidence of recording thereon or, if such
original
assignments of Mortgage have been delivered to the appropriate
recorder's office
for recordation, certified true copies of such assignments of
Mortgage certified
by the applicable Seller, or in the case of an original blanket
intervening
assignment of Mortgage retained by the applicable Seller, a copy
thereof
certified by the applicable Seller or, if any original intervening
assignment of
Mortgage has not yet been returned on or prior to the 45th day
following the
Closing Date from the applicable recording office or has been lost,
a true and
correct copy thereof, together with (A) in the case of a delay
caused by the
public recording office, an Officer's Certificate of the applicable
Seller
stating that such original intervening assignment of Mortgage has
been sent to
the appropriate public recording official for recordation or (B) in
the case of
an original intervening assignment of Mortgage that has been lost
after
recordation, a certification by the appropriate county recording
-33-
office where such assignment is recorded that such copy is a true
and complete
copy of the original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or, if such Assignment of Leases has not been returned on
or prior to
the 45th day following the Closing Date from the applicable public
recording
office, a copy of such Assignment of Leases certified by the
applicable Seller
to be a true and complete copy of the original Assignment of Leases
submitted
for recording, together with (A) an original of each assignment of
such
Assignment of Leases with evidence of recording thereon and showing
a complete
recorded chain of assignment from the named assignee to the holder
of record,
and if any such assignment of such Assignment of Leases has not
been returned
from the applicable public recording office, a copy of such
assignment certified
by the applicable Seller to be a true and complete copy of the
original
assignment submitted for recording, and (B) an original assignment
of such
Assignment of Leases, in recordable form, signed by the holder of
record in
favor of "U.S. Bank National Association, as Trustee for Morgan
Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ7," which
assignment may be effected in the related Assignment of Mortgage;
provided, if
the related Assignment of Leases has been recorded in the name of
MERS or its
designee, no assignment of Assignment of Leases in favor of the
Trustee will be
required to be recorded or delivered and instead, the applicable
Seller shall
take all actions as are necessary to cause the Trustee to be shown
as, the owner
of the related Assignment of Leases on the record of MERS for
purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by
MERS and shall deliver to the Special Servicer and the Trustee
evidence
confirming that the Trustee is shown as the owner on the record of
MERS;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original
binder or
actual title commitment or a copy thereof certified by the title
company with
the original Title Insurance Policy to follow within 180 days of
the Closing
Date or a preliminary title report with an original Title Insurance
Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee
executed and
delivered in connection with the Mortgage Loan; provided, if the
related
Mortgage has been recorded in the name of MERS or its designee, no
such
financing statements will be required to be recorded or delivered
and instead,
the applicable Seller shall take all actions as are necessary to
cause the
Trustee to be shown as the owner of the related UCC financing
statements on the
record of MERS for purposes of the system of recording transfers of
beneficial
ownership of mortgages maintained by MERS and shall deliver to the
Special
Servicer and the Trustee evidence confirming that the Trustee is
shown as the
owner on the record of MERS;
(x) copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and
there is a
lien in favor of the mortgagee in such lease;
-34-
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any
Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage
note
evidencing the related Serviced Companion Mortgage Loan and B
Note), if any,
related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which
shall be
assigned and delivered to the Trustee on behalf of the Trust with a
copy to be
held by the applicable Primary Servicer (or the Master Servicer),
and applied,
drawn, reduced or released in accordance with documents evidencing
or securing
the applicable Mortgage Loan, this Agreement and the applicable
Primary
Servicing Agreement or (B) the original of each letter of credit,
if any,
constituting additional collateral for such Mortgage Loan, which
shall be held
by the applicable Primary Servicer (or the Master Servicer) on
behalf of the
Trustee, with a copy to be held by the Trustee, and applied, drawn,
reduced or
released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, this Agreement and the applicable Primary Servicing
Agreement (it
being understood that each Seller has agreed (a) that the proceeds
of such
letter of credit belong to the Trust, (b) to notify, on or before
the Closing
Date, the bank issuing the letter of credit that the letter of
credit and the
proceeds thereof belong to the Trust, and to use reasonable efforts
to obtain
within 30 days (but in any event to obtain within 90 days)
following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) or a reissued letter of
credit and
(c) to indemnify the Trust for any liabilities, charges, costs,
fees or other
expenses accruing from the failure of the Seller to assign all
rights in and to
the letter of credit hereunder including the right and power to
draw on the
letter of credit). In the case of clause (B) above, any letter of
credit held by
the applicable Primary Servicer (or the Master Servicer)
acknowledges that any
letter of credit held by it shall be held in its capacity as agent
of the Trust,
and if the applicable Primary Servicer (or Master Servicer) sells
its rights to
service the applicable Mortgage Loan, the applicable Primary
Servicer (or Master
Servicer) will assign the applicable letter of credit to the Trust
or at the
direction of the Special Servicer (with respect to any Specially
Serviced
Mortgage Loan) to such party as the Special Servicer may instruct,
in each case,
at the expense of the applicable Primary Servicer (or Master
Servicer). The
applicable Primary Servicer (or Master Servicer) shall indemnify
the Trust for
any loss caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of any environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged
Properties
operated as hotels and for all Mortgaged Properties securing
Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of
the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
-35-
With respect to any Non-Serviced Mortgage Loan, the preceding
document
delivery requirements will be met by the delivery by the Depositor
of copies of
the documents specified above (other than the Mortgage Notes (and
all
intervening endorsements) respectively evidencing such Non-Serviced
Mortgage
Loan with respect to which the originals shall be required),
including a copy of
such Non-Serviced Mortgage Loan Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and
all
amendments and modifications thereof, identified on the Mortgage
Loan Schedule,
as amended from time to time, provided that the term "Mortgage
Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but
shall not
include any Non-Serviced Companion Mortgage Loan) but with respect
to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include
the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu
Mortgage
Loan (but shall not include the related Serviced Companion Mortgage
Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan
Purchase
Agreement III or Mortgage Loan Purchase Agreement IV, as the case
may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage
Loan
Purchase Agreement between LaSalle and the Depositor dated as of
November 17,
2005 with respect to the LaSalle Loans, a form of which is attached
hereto as
Exhibit K-1.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage
Loan
Purchase Agreement between UCMFI and the Depositor dated as of
November 17, 2005
with respect to the UCMFI Loans, a form of which is attached hereto
as Exhibit
K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage
Loan Purchase Agreement between Principal and the Depositor dated
as of November
17, 2005 with respect to the Principal Loans, a form of which is
attached hereto
as Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain Mortgage
Loan
Purchase Agreement between MSMC and the Depositor dated as of
November 17, 2005
with respect to the MSMC Loans, a form of which is attached hereto
as Exhibit
K-4.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each
LaSalle Loan, the
schedule attached hereto as Schedule II, which identifies each
UCMFI Loan, the
schedule attached hereto as Schedule III, which identifies each
Principal Loan
and the schedule attached hereto as Schedule IV, which identifies
each MSMC
Loan, as such schedules may be amended from time to time pursuant
to Section
2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, Serviced
Companion
Mortgage Loan or B Note, the per annum rate at which interest
accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
-36-
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor
under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the
related B
Note and, in the case of a Loan Pair, the related Serviced
Companion Mortgage
Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning set forth in the Preliminary Statement
hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and
shown on
Schedule IV hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not
Specially
Serviced Mortgage Loans, the excess, if any, of aggregate
Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the
Compensating Interest
to be paid by the Master Servicer on such Distribution Date and (B)
the
aggregate Prepayment Interest Excesses for such Collection Period
for all
Mortgage Loans which are not Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on
behalf
of the Trust, including any lease renewed or extended on behalf of
the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any
REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are
outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any
other tax
(other than a tax on "net income from foreclosure property"
permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or
the Trust and
(ii) will not cause the Class S Grantor Trust to fail to qualify as
a grantor
trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury
Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of
Certificates
that, at the time of transfer, is not rated in one of the four
highest generic
rating categories by at least one of S&P or Moody's.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued
thereon at the
Advance Rate) and (ii) the portion of any Advance (including
interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including
interest
thereon) previously made (and, in the case of an Unliquidated
Advance, not
previously reimbursed to the Trust) or proposed to be made by the
Master
Servicer,
-37-
the Special Servicer or the Trustee, that, in its respective sole
discretion,
exercised in good faith and, with respect to the Master Servicer
and the Special
Servicer, taking into account the Servicing Standard, will not be
or, in the
case of a current delinquency, would not be, ultimately
recoverable, from
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
Purchase
Proceeds (or from any other collections) with respect to the
related Mortgage
Loan or Serviced Companion Mortgage Loan (and taking into
consideration any
Crossed Mortgage Loans) (in the case of Servicing Advances) or B
Note (in the
case of Servicing Advances) or REO Property (in the case of P&I
Advances and
Servicing Advances), as evidenced by an Officer's Certificate
delivered pursuant
to Section 4.4. Such Officer's Certificate shall be delivered to
the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor
(if the
Trustee is delivering such Officer's Certificate) and (in either
case) to the
Special Servicer and the Paying Agent in the time periods as
specified in
Section 4.4 and shall include the information and reports set forth
in Section
4.4. Absent bad faith, the Master Servicer's determination as to
the
recoverability of any Advance shall be conclusive and binding on
the
Certificateholders and, in the case of any B Note or Serviced
Companion Mortgage
Loan, the holder of such B Note or Serviced Companion Mortgage
Loan, as
applicable, and may, in all cases, be relied on by the Trustee;
provided,
however, that the Special Servicer may, at its option, make a
determination in
accordance with the Servicing Standard that any P&I Advance or
Servicing
Advance, if made, would be a Nonrecoverable Advance and shall
deliver to the
Master Servicer and the Trustee notice of such determination.
Absent bad faith,
any such determination shall be conclusive and binding on the
Certificateholders, the Master Servicer and the Trustee. Absent bad
faith, and
pursuant to Section 4.1A of this Agreement, any determination as to
the
recoverability of any advance made with respect to any Non-Serviced
Mortgage
Loan by the Master Servicer or any Other Master Servicer shall be
conclusive and
binding on the Certificateholders and may, in all cases, be relied
on by the
Trustee and the Master Servicer. In making any nonrecoverability
determination
as described above, the relevant party shall be entitled (i) to
consider (among
other things) the obligations of the Mortgagor under the terms of
the Mortgage
Loan as it may have been modified, (ii) to consider (among other
things) the
related Mortgaged Properties in their "as is" then-current
conditions and
occupancies and such party's assumptions (consistent with the
Servicing Standard
in the case of the Master Servicer or the Special Servicer)
regarding the
possibility and effects of future adverse change with respect to
such Mortgaged
Properties, (iii) to estimate and consider, consistent with the
Servicing
Standard in the case of the Master Servicer or the Special Servicer
(among other
things), future expenses and (iv) to estimate and consider,
consistent with the
Servicing Standard (among other things), the timing of recovery to
such party.
In addition, the relevant party may, consistent with the Servicing
Standard in
the case of the Master Servicer or the Special Servicer, update or
change its
nonrecoverability determinations at any time in accordance with the
terms hereof
and may, consistent with the Servicing Standard in the case of the
Master
Servicer or the Special Servicer, obtain from the Special Servicer
any analysis,
appraisals or other information in the possession of the Special
Servicer for
such purposes.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under
the Securities Act, any Class X, Class G, Class H, Class J, Class
K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S or Residual
Certificate.
"NON-SERVICED COMPANION MORTGAGE LOAN" means a loan not included in
the Trust that is generally payable on a pari passu basis with the
related
Non-Serviced Mortgage Loan.
-38-
"NON-SERVICED MORTGAGE LOAN" means a Mortgage Loan included in the
Trust but serviced under another agreement. There are no
Non-Serviced Mortgage
Loans in the Trust.
"NON-SERVICED MORTGAGE LOAN FISCAL AGENT" means the applicable
"fiscal
agent" under the related Non-Serviced Mortgage Loan Pooling and
Servicing
Agreement.
"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, the
applicable intercreditor agreement with respect to a Non-Serviced
Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan
Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the mortgage securing a
Non-Serviced Mortgage Loan Mortgage.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means
a
pooling and servicing agreement under which a Non-Serviced Mortgage
Loan is
serviced.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan
Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X
Notional
Amount as of such date of determination; and (ii) with respect to
any Class X
Certificate, the product of the Percentage Interest evidenced by
such
Certificate and the Class X Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any
Vice
Chairman, the President, or any Senior Vice President, Vice
President or
Assistant Vice President, and by one or more of the Treasurer, any
Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of
the officers
referred to above or an employee thereof designated as a Servicing
Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the
case of the
Trustee, a certificate signed by a Responsible Officer and (y) in
the case of a
Seller, a certificate signed by one or more of the Chairman of the
Board, any
Vice Chairman, any Managing Director or Director, the President, or
any
Executive Vice President, any Senior Vice President, Vice
President, Second Vice
President or Assistant Vice President and (z) in the case of the
Paying Agent, a
certificate signed by a Responsible Officer, each with specific
responsibilities
for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall mean the Person elected to serve as the
Operating Adviser pursuant to Section 9.37(a).
"OPINION OF COUNSEL" means a written opinion of counsel addressed
to
the Trustee and the Paying Agent, reasonably acceptable in form and
substance to
the Trustee and the Paying Agent, and who is not in-house counsel
to the party
required to deliver such opinion
-39-
but who, in the good faith judgment of the Trustee and the Paying
Agent, is
Independent outside counsel knowledgeable of the issues occurring
in the
practice of securitization with respect to any such opinion of
counsel
concerning the taxation, or status as a REMIC for tax purposes, of
any REMIC
Pool or status as a "grantor trust" under the Code of the Class S
Grantor Trust.
"OPTION PURCHASE PRICE" has the meaning set forth in Section
9.36(b)
hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as
applicable,
which has been deposited into a commercial mortgage securitization
trust, the
date under the related Other Companion Loan Pooling and Servicing
Agreement that
the related Other Master Servicer is required (pursuant to the
terms thereof) to
make a determination as to whether it will make a P&I Advance
as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means a
pooling
and servicing agreement relating to a Non-Serviced Companion
Mortgage Loan or a
Serviced Companion Mortgage Loan that creates a commercial mortgage
securitization trust, as applicable.
"OTHER MASTER SERVICER" means applicable "master servicer" under an
Other Companion Loan Pooling and Servicing Agreement relating to a
Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as
applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in Section
9.4(d)
hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set forth
in
Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in Section
9.4(d)
hereof.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I ADVANCE" shall mean (other than with respect to a Serviced
Companion Mortgage Loan or a B Note) (i) with respect to any
Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of
the Scheduled
Payment (other than a Balloon Payment) due during the related
Collection Period
was not received by the Master Servicer as of the related
Determination Date
(subject to Section 5.1(h)), the portion of such Scheduled Payment
not received;
(ii) with respect to any Mortgage Loan that is a Balloon Mortgage
Loan
(including any REO Property as to which the related Mortgage Loan
provided for a
Balloon Payment) as to which a Balloon Payment was due during or
prior to the
related Collection Period but was delinquent, in whole or in part,
as of the
related Determination Date, an amount equal to the excess, if any,
of the
Assumed Scheduled Payment for such Balloon Mortgage Loan for the
related
Collection Period, over any Late Collections received in respect of
such Balloon
Payment during such Collection Period; and (iii) with respect to
each REO
Property, an amount equal to the excess, if any, of the Assumed
Scheduled
Payment for the Mortgage Loan related to such
-40-
REO Property during the related Collection Period, over remittances
of REO
Income to the Master Servicer by the Special Servicer, reduced by
any amounts
required to be paid as taxes on such REO Income (including taxes
imposed
pursuant to Section 860G(c) of the Code); provided, however, that
the interest
portion of any Scheduled Payment or Assumed Scheduled Payment shall
be advanced
at a per annum rate equal to the sum of the REMIC I Net Mortgage
Rate relating
to such Mortgage Loan or such REO Mortgage Loan and the Trustee Fee
Rate, such
that the Scheduled Payment or Assumed Scheduled Payment to be
advanced as a P&I
Advance shall be net of the Master Servicing Fee, the Excess
Servicing Fee and
the Primary Servicing Fee; and provided, further, that the
Scheduled Payment or
Assumed Scheduled Payment for any Mortgage Loan which has been
modified shall be
calculated based on its terms as modified and provided, further,
that the
interest component of any P&I Advance with respect to a
Mortgage Loan as to
which there has been an Appraisal Reduction shall be an amount
equal to the
product of (i) the amount of interest required to be advanced
without giving
effect to this proviso and (ii) a fraction, the numerator of which
is the
Principal Balance of such Mortgage Loan as of the immediately
preceding
Determination Date less any Appraisal Reduction applicable to such
Mortgage Loan
(or, in the case of a Non-Serviced Mortgage Loan or a Serviced Pari
Passu
Mortgage Loan, the portion of such Appraisal Reduction allocable
(based upon
their respective Principal Balances) to such Non-Serviced Mortgage
Loan or
Serviced Pari Passu Mortgage Loan under the related Intercreditor
Agreement or
the related Loan Pair Intercreditor Agreement, or in the case of an
A/B Mortgage
Loan, the portion of such Appraisal Reduction allocable to the A
Note pursuant
to the definition of "Appraisal Reduction") and the denominator of
which is the
Principal Balance of such Mortgage Loan as of such Determination
Date. All P&I
Advances for any Mortgage Loans that have been modified shall be
calculated on
the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or any
REO Property, the amount of the P&I Advance for each Mortgage
Loan computed for
any Distribution Date.
"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage
Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced
Mortgage Loan
pursuant to and in accordance with the related Non-Serviced
Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable
Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance"
(as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement) in
the nature of an expenditure benefiting the related Mortgaged
Property
generally, the portion thereof attributable to any Non-Serviced
Mortgage Loan
shall be determined based on the outstanding balances of such
Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such
Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such
advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing
Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling
and
Servicing Agreement) and any other servicing fee rate (other than
those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer)
applicable to any
Non-Serviced Mortgage Loan; provided, however, that the Pari Passu
Loan
Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan
set forth on
Schedule XIX as to which such fee is calculated on a 30/360 basis
shall be (a)
the related "Master Servicing Fee Rate" set forth in the
Non-Serviced Mortgage
Loan Pooling and
-41-
Servicing Agreement, multiplied by (b) 30 divided by the actual
number of days
in the loan accrual period with respect to such loan.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects
book-entry
transfers and pledges of securities deposited with the Clearing
Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to
any
Class of REMIC I Regular Interests, REMIC II Regular Interests or
REMIC Regular
Certificates, other than the Class X, Class A-1A, Class A-2, Class
A-3, Class
A-AB, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class
F, Class G, Class H, Class J and Class K Certificates, for the
first
Distribution Date, the rate set forth in the Preliminary Statement
hereto. For
any Distribution Date occurring thereafter (and with respect to the
Class X,
Class A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-M,
Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J and Class
K Certificates, for each Distribution Date), the Pass-Through Rates
for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate
on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II
Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage
Rate for such
Distribution Date, (iii) the Class A-1 Certificates, the fixed rate
corresponding to such Class set forth in the Preliminary Statement
hereto, (iv)
the Class A-1A, Class A-2 and Class A-3 Certificates shall equal
the Weighted
Average REMIC I Net Mortgage Rate corresponding to such Class for
such
Distribution Date, (v) the Class A-AB Certificates shall equal the
Weighted
Average REMIC I Net Mortgage Rate corresponding to such Class for
such
Distribution Date less 0.023%, (vi) the Class A-4, Class A-M, Class
A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K
Certificates shall equal the Weighted Average REMIC I Net Mortgage
Rate for such
Distribution Date, (vii) the Class L, Class M, Class N, Class O,
Class P, Class
Q and Class S Certificates shall equal the lesser of (A) 4.945% per
annum and
(B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date
and (viii) the Class X Certificates shall equal the per annum rate
equal to the
quotient of the Accrued Certificate Interest thereon for such
Distribution Date
and the Class X Notional Amount, times twelve.
"PAYING AGENT" means LaSalle Bank National Association and any
successor or assign, as provided herein. The Luxembourg Paying
Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent
shall be
distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to
the
Paying Agent in an amount agreed to between the Trustee and the
Paying Agent.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates
other than the Residual Certificates, the fraction of such Class
evidenced by
such Certificate, expressed as a percentage (carried to four
decimal places and
rounded, if necessary), the numerator of which is the Certificate
Balance or
Notional Amount, as applicable, represented by such Certificate
determined as of
the Closing Date (as stated on the face of such Certificate) and
the denominator
of which is the Aggregate Certificate Balance or Notional Amount,
as applicable,
of all of the Certificates of such Class determined as of the
Closing Date. With
respect to each Residual Certificate, the percentage interest in
distributions
(if any) to be made with respect to the relevant Class, as stated
on the face of
such Certificate.
-42-
"PERFORMING PARTY" has the meaning set forth in Section 8.26(b).
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability
company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent
Person
who regularly conducts environmental site assessments in accordance
with then
current standards imposed by institutional commercial mortgage
lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Morgan Stanley & Co. Incorporated or
its
successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLANNED PRINCIPAL BALANCE" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XIII.
"PLAN ASSET REGULATIONS" means the Department of Labor regulations
set
forth in 29 C.F.R. Section 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in
the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and
the
related Collection Period, during which a full or partial Principal
Prepayment
(including payment of a Balloon Payment other than in connection
with the
foreclosure or liquidation of a Mortgage Loan) is made after the
Due Date for
such Mortgage Loan through and including the last day of the
Collection Period,
the amount of interest that accrues on the amount of such Principal
Prepayment
from such Due Date to the date such payment was made, plus (if
made) any payment
by the Mortgagor of interest that would have accrued to the next
succeeding Due
Date (net of the Master Servicing Fee, the Primary Servicing Fee,
the Excess
Servicing Fees, the Special Servicing Fee, the Trustee Fee and the
servicing fee
and trustee fee payable in connection with any Non-Serviced
Mortgage Loan (in
the case of any Non-Serviced Mortgage Loan), to the extent
collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's
interest on
any Mortgage Loan, by reason of a full or partial Principal
Prepayment
(including payment of a Balloon Payment other than in connection
with the
foreclosure or liquidation of a Mortgage Loan) made during any
Collection Period
prior to the Due Date for such Mortgage Loan in such Collection
Period
(including any shortfall resulting from such a payment during the
grace period
relating to such Due Date). The amount of any Prepayment Interest
Shortfall
shall equal the excess of (A) the aggregate amount of interest
which would have
accrued on the Scheduled Principal Balance of such Mortgage Loan if
the Mortgage
Loan had paid on its Due Date and such Principal Prepayment or
Balloon Payment
-43-
had not been made (net of the Master Servicing Fee, the Primary
Servicing Fee,
the Excess Servicing Fees, the Special Servicing Fee, the Trustee
Fee and the
servicing fee payable in connection with any Non-Serviced Mortgage
Loan (in the
case of any Non-Serviced Mortgage Loan)) over (B) the aggregate
interest that
did so accrue through the date such payment was made (net of such
fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution
Date, the
prepayment premiums, yield maintenance charges or percentage
premiums, if any,
received during the related Collection Period in connection with
Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan
or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as
applicable, that is
encumbered by a first mortgage lien.
"PRIMARY SERVICER" means (a) Principal Global Investors, LLC and
its
permitted successors and assigns with respect to the Principal
Loans and (b)
Union Central Mortgage Funding, Inc. and its permitted successors
and assigns
with respect to the UCMFI Loans.
"PRIMARY SERVICING AGREEMENT" means the agreement between the
applicable Primary Servicer and the Master Servicer, dated as of
November 1,
2005, a form of which is attached hereto as Exhibit G-1 and Exhibit
G-2, under
which the applicable Primary Servicer services the Mortgage Loans
set forth on
the schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied
by the
Scheduled Principal Balance of such Mortgage Loan immediately
before the Due
Date occurring in such month, but prorated for the number of days
during the
calendar month for such Mortgage Loan for which interest actually
accrues on
such Mortgage Loan and payable only from collections on such
Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to the
applicable Primary Servicer (or the Master Servicer, as applicable)
based on the
per annum rate specified on the Mortgage Loan Schedule, as more
specifically
described, in the case of the applicable Primary Servicer, in the
applicable
Primary Servicing Agreement (determined in the same manner (other
than the rate
of accrual) as the applicable Mortgage Rate is determined for such
Mortgage Loan
for such month).
"PRINCIPAL" has the meaning set forth in the Preliminary Statement
hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
Serviced
Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes
of performing
calculations with respect to any Distribution Date, the principal
balance of
such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the
related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all
principal and interest payments made or due on or prior to the
Cut-Off Date
(assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan
or B Note
with a Due Date in November 2005 that is not November 1, 2005, that
principal
and interest payments for such month were paid on November 1,
2005), reduced (to
not less than
-44-
zero) by (i) any payments or other collections of amounts allocable
to principal
with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan, B Note or
any related REO Mortgage Loan that have been collected or received
during any
preceding Collection Period, other than any Scheduled Payments due
in any
subsequent Collection Period, and (ii) any Realized Principal Loss
incurred in
respect of such Mortgage Loan or related REO Mortgage Loan during
any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class
A-1,
Class A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-M,
Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date,
the
amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled
Payments, in
each case, to the extent received or advanced, as the case may be,
in respect of
the Mortgage Loans and any REO Mortgage Loans (but not in respect
of any
Serviced Companion Mortgage Loan or B Note or its successor REO
Mortgage Loan)
for their respective Due Dates occurring during the related
Collection Period;
plus
(ii) all payments (including Principal Prepayments and the
principal
portion of Balloon Payments but not in respect of any Serviced
Companion
Mortgage Loan or B Note or its respective successor REO Mortgage
Loan) and any
other collections (including Liquidation Proceeds (other than the
portion
thereof, if any, constituting Excess Liquidation Proceeds),
Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income)
received on or
in respect of the Mortgage Loans during the related Collection
Period and that
were identified and applied by the Master Servicer as recoveries of
principal
thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in
respect
of the Mortgage Loans during the related Collection Period that, in
each case,
represents a delinquent amount as to which an Advance had been
made, which
Advance (or interest thereon) was previously reimbursed during the
Collection
Period for a prior Distribution Date as part of a Workout-Delayed
Reimbursement
Amount for which a deduction was made under clause (II)(A) below
with respect to
such Distribution Date (with respect to each such Mortgage Loan,
allocated first
to the Loan Group Principal Distribution Amount related to the Loan
Group that
does not include such Mortgage Loan, and then to the Loan Group
Principal
Distribution Amount related to the Loan Group that includes such
Mortgage Loan);
and
(C) the aggregate amount of any collections received on or in
respect
of the Mortgage Loans during the related Collection Period that, in
each case,
represents a recovery of an amount previously determined (in a
Collection Period
for a prior Distribution Date) to have been a Nonrecoverable
Advance (or
interest thereon) and for which a deduction was made under
-45-
clause (II)(B) below with respect to a prior Distribution Date
(with respect to
each such Mortgage Loan, allocated first to the Loan Group
Principal
Distribution Amount related to the Loan Group that does not include
such
Mortgage Loan, and then to the Loan Group Principal Distribution
Amount related
to the Loan Group that includes such Mortgage Loan), and which are
applied
pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to
such
Mortgage Loan, and then to the other Loan Group Principal
Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and
Advance Interest thereon) that was reimbursed or paid during the
related
Collection Period to one or more of the Master Servicer, the
Special Servicer
and the Trustee from amounts in the Collection Account allocable to
principal
received or advanced with respect to the Mortgage Loans pursuant to
subsection
(iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related
Collection
Period to one or more of the Master Servicer, the Special Servicer
and the
Trustee during the related Collection Period from amounts in the
Collection
Account allocable to principal received or advanced with respect to
the Mortgage
Loans pursuant to subsection (iv) of Section 5.2(a)(II).
"PRINCIPAL LOANS" means, collectively those Mortgage Loans sold to
the
Depositor pursuant to Mortgage Loan Purchase Agreement III and
shown on Schedule
III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment
or
collection of principal on a Mortgage Loan, a Serviced Companion
Mortgage Loan
or a B Note which is received or recovered in advance of its
scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan,
Serviced
Companion Mortgage Loan or B Note in advance of its scheduled Due
Date,
including, without limitation, all proceeds, to the extent
allocable to
principal, received from the payment of cash in connection with a
substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a
Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not
be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement
Memorandum
dated November 17, 2005, pursuant to which the Class X, Class G,
Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
and Class S
Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by the Seller
or
liquidation by the Special Servicer of (i) a Mortgage Loan or an
REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage
Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to
Section 9.36 under
the circumstances described therein, a price equal to the sum
(without
duplication) of (A) 100% of the unpaid Principal Balance of such
Mortgage Loan
(or deemed Principal Balance, in the case of an REO Mortgage Loan),
plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate
to, but not
including, the Due Date in the Collection Period in which such
purchase or
liquidation occurs, plus (C) the amount of any
-46-
expenses related to such Mortgage Loan and any related Serviced
Companion
Mortgage Loan, B Note or REO Property (including any Servicing
Advances and
Advance Interest thereon (which have not been paid by the Mortgagor
or out of
Late Fees or default interest paid by the related Mortgagor on the
related
Mortgage Loan and any related Serviced Companion Mortgage Loan or B
Note)
related to such Mortgage Loan and any related Serviced Companion
Mortgage Loan
or B Note, the amount of any Servicing Advances (and Advance
Interest thereon)
that were reimbursed from principal collections on the Mortgage
Pool pursuant to
Section 5.2(a)(II)(iii) and not subsequently recovered from the
related
Mortgagor, and all Special Servicing Fees and Liquidation Fees paid
with respect
to the Mortgage Loan and any related Serviced Companion Mortgage
Loan or B Note)
that are reimbursable or payable to the Master Servicer, the
Special Servicer,
the Paying Agent, the Trustee, any Non-Serviced Mortgage Loan
Master Servicer or
any Non-Serviced Mortgage Loan Special Servicer, plus (D) if such
Mortgage Loan
or REO Mortgage Loan is being repurchased or substituted for by a
Seller
pursuant to the related Mortgage Loan Purchase Agreement, all
expenses
reasonably incurred or to be incurred by the applicable Primary
Servicer, the
Master Servicer, the Special Servicer, the Depositor, the Paying
Agent or the
Trustee in respect of the Material Breach or Material Document
Defect giving
rise to the repurchase or substitution obligation (and that are not
otherwise
included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan
or an REO
Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the
purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master
Servicer, the
Special Servicer or the holders of the Class R-I Certificates
pursuant to
Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to
Section
8.22(b) (including the requirement set forth in Section 8.22(b)
that Rating
Agency Confirmation shall have been obtained from each Rating
Agency with
respect to such Person) and (B) as used in Section 9.31(c), any
Person qualified
to act as successor Special Servicer hereunder pursuant to Section
9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating
Agency
Confirmation shall have been obtained form each Rating Agency with
respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional
buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company
duly qualified
as such under the laws of the state in which the related Mortgaged
Property is
located, duly authorized and licensed in such state to transact the
applicable
insurance business and to write the insurance, but in no event
rated lower than
"A2" by Moody's, if rated by Moody's or if not rated by Moody's,
then Moody's
has issued a Rating Agency Confirmation and "A-" by S&P if
rated by S&P or if
not rated by S&P, then S&P has issued a Rating Agency
Confirmation, and (ii)
with respect to the Servicer Errors and Omissions Insurance Policy
or Servicer
Fidelity Bond an insurance company that has a claim paying ability
no lower than
"A2" by Moody's if rated by Moody's, or if not rated by Moody's,
then Moody's
has issued a Rating Agency Confirmation, and "A-" by S&P if
rated by S&P or if
not rated by S&P, then S&P has issued a Rating Agency
Confirmation, or (iii) in
either case, a company not satisfying clause (i) or (ii) but with
respect to
which a Rating Agency Confirmation is obtained. "Qualified Insurer"
shall also
mean any entity that satisfies all
-47-
of the criteria, other than the ratings criteria, set forth in one
of the
foregoing clauses and whose obligations under the related insurance
policy are
guaranteed or backed by an entity that satisfies the ratings
criteria set forth
in such clause (construed as if such entity were an insurance
company referred
to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan
which, on the date
of substitution, (i) has an outstanding principal balance, after
deduction of
the principal portion of the Scheduled Payment due in the month of
substitution,
not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided,
however, that, to the extent that the principal balance of such
Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then
such
differential in principal amount, together with interest thereon at
the Mortgage
Rate on the related Mortgage Loan from the date as to which
interest was last
paid through the last day of the month in which such substitution
occurs, shall
be paid by the party effecting such substitution to the Master
Servicer for
deposit into the Certificate Account, and shall be treated as a
Principal
Prepayment hereunder; (ii) is accruing interest at a rate of
interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining
term to stated
maturity not greater than, and not more than two years less than,
that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not
higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio
(equal to
the outstanding principal balance on the date of substitution
divided by its
current Appraised Value) not higher than the current Loan-to-Value
Ratio of the
Deleted Mortgage Loan and has a current Debt Service Coverage Ratio
equal to or
greater than the current Debt Service Coverage Ratio of the Deleted
Mortgage
Loan; (v) will comply with all of the representations and
warranties relating to
Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a
Phase I Environmental Report relating to the related Mortgaged
Property in its
Mortgage Files and such Phase I Environmental Report does not, in
the good faith
reasonable judgment of the Special Servicer, consistent with the
Servicing
Standard, raise material issues that have not been adequately
addressed; (vii)
has an engineering report relating to the related Mortgaged
Property in its
Mortgage Files and such engineering report does not, in the good
faith
reasonable judgment of the Special Servicer, consistent with the
Servicing
Standard raise material issues that have not been adequately
addressed; and
(viii) as to which the Trustee and the Paying Agent have received
an Opinion of
Counsel, at the related Seller's expense, that such Mortgage Loan
is a
"qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after
the date
three years prior to the Rated Final Distribution Date, and
provided, further,
that no such Mortgage Loan shall be substituted for a Deleted
Mortgage Loan
unless Rating Agency Confirmation is obtained, and provided,
further that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless the
Operating Adviser shall have approved of such substitution
(provided, however,
that such approval of the Operating Adviser may not be unreasonably
withheld).
In the event that either one mortgage loan is substituted for more
than one
Deleted Mortgage Loan or more than one mortgage loan is substituted
for one or
more Deleted Mortgage Loans, then (A) the Principal Balance
referred to in
clause (i) above shall be determined on the basis of aggregate
Principal
Balances and (B) the rates referred to in clause (ii) above and the
remaining
term to stated maturity referred to in clause (iii) above shall be
determined on
a weighted average basis (provided, that the REMIC I Net Mortgage
Rate for any
Qualifying Substitute Mortgage Loan may not be less than the
highest
Pass-Through Rate of any outstanding Class of Certificates that is
not based on,
or subject to a cap equal to, the Weighted Average REMIC I Net
Mortgage Rate).
Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted
Mortgage
-48-
Loan pursuant to this Agreement, the party effecting such
substitution shall
certify that such Mortgage Loan meets all of the requirements of
this definition
and shall send such certification to the Paying Agent, which shall
deliver a
copy of such certification to the Special Servicer, the Trustee and
the
Operating Adviser promptly, and in any event within five Business
Days following
the Paying Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated
Class
of Certificates, the Distribution Date in November 2042.
"RATING AGENCIES" means S&P and Moody's.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating
Agency as is
specified herein) that a proposed action, failure to act, or other
event
specified herein will not in and of itself result in the
withdrawal, downgrade,
or qualification, as applicable, of the then-current rating
assigned by such
Rating Agency to any Class of Certificates then rated by such
Rating Agency,
provided that with respect to any matter affecting any Serviced
Companion
Mortgage Loan, such confirmation shall also refer to the nationally
recognized
statistical rating organizations then rating the securities
representing an
interest in such loan and such rating organizations' respective
ratings of such
securities.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any
Liquidation
Realized Loss that exceeds the Realized Principal Loss on the
related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such
Realized Loss
attributable to accrued interest on the related Mortgage Loan,
(iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from
the payment of
the Special Servicing Fee and any Expense Losses treated as
Realized Interest
Losses pursuant to clause (iv) of the definition of "Realized
Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss
described in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a
Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage
Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such
Liquidation
Realized Loss, to the extent that it does not exceed the Principal
Balance (plus
the amount of any Unliquidated Advance with respect to such
Mortgage Loan) of
the Mortgage Loan (or deemed Principal Balance, in the case of REO
Property),
(ii) in the case of a Modification Loss, the amount of such
Modification Loss
described in clause (i) of the definition thereof, (iii) in the
case of a
Bankruptcy Loss, the portion of such Bankruptcy Loss attributable
to the
reduction in the Principal Balance of the related Mortgage Loan,
(iv) in the
case of an Expense Loss, the amount of such Expense Loss (other
than Expense
Losses resulting from the payment of Special Servicing Fees) to the
extent that
such Expense Loss does not exceed amounts collected in respect of
the Mortgage
Loans that were identified as allocable to principal in the
Collection Period in
which such Expense Losses were incurred, and any such excess shall
be treated as
a Realized Interest Loss, (v) the amounts in respect thereof that
are withdrawn
from the Certificate Account pursuant to Section 6.6(b)(i) and (vi)
any
Unliquidated Advance that is determined by the Master Servicer to
be a
Nonrecoverable Advance.
-49-
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the
month
immediately preceding the month in which such Distribution Date
occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered
with respect to a Mortgage Loan, a Serviced Companion Mortgage
Loan, a B Note or
REO Property following the period in which a Final Recovery
Determination occurs
plus other amounts defined as "Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially
in the form set forth in Exhibit F hereto certifying that a
beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a
U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent
global Certificate, in definitive, fully registered form without
interest
coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to
any
Class of Certificates offered and sold outside of the United States
in reliance
on Regulation S, a single temporary global Certificate, in
definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments
have been
made (in the case of any such Mortgage Loan, Serviced Companion
Mortgage Loan or
B Note that was modified, based on the modified terms), or a
complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has
occurred and is
continuing (or with respect to determining whether a Required
Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no
other
Appraisal Event has occurred and is continuing) and (iii) the Trust
has been
reimbursed for all costs incurred as a result of the occurrence of
a Servicing
Transfer Event, such amounts constitute a Workout-Delayed
Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute
a
Rehabilitated Mortgage Loan unless its related B Note would
constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a
Rehabilitated
Mortgage Loan unless its related A Note also would constitute a
Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not
constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion
Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced
Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its
related
Serviced Pari Passu Mortgage Loan also would constitute a
Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the
Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
-50-
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon),
such amounts
with respect thereto as shall from time to time be held in the
Collection
Account, the Certificate Account, the Reserve Account, the
Distribution Account
(other than the portion thereof constituting the Excess Interest
Sub-account)
and the Interest Reserve Account, the Insurance Policies (other
than the
interests of the holder of any Non-Serviced Companion Mortgage Loan
or Serviced
Companion Mortgage Loan or B Note therein) and any REO Properties
or beneficial
interests therein (other than the interests of the holder of any
Non-Serviced
Companion Mortgage Loan or any Serviced Companion Mortgage Loan or
B Note
therein), for which a REMIC election has been made pursuant to
Section 12.1(a)
hereof. Excess Interest on the Mortgage Loans and the Excess
Interest
Sub-account shall constitute assets of the Trust but shall not be a
part of any
REMIC Pool formed hereunder. The Non-Serviced Companion Mortgage
Loans and any
amounts payable thereon shall not constitute assets of the Trust or
any REMIC
Pool formed hereunder. No B Note or any amounts payable thereon
shall constitute
an asset of the Trust or any REMIC Pool formed hereunder. No
Serviced Companion
Mortgage Loan or any amounts payable thereon shall constitute an
asset of the
Trust or any REMIC Pool formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal to
(a) with
respect to any Mortgage Loan that accrues interest on the basis of
a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i)
the Mortgage
Rate thereof (without taking into account any increase therein
after the
Anticipated Repayment Date in respect of an ARD Loan or any default
interest
rate) as of the Cut-Off Date and without regard to any
modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus
(ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan
that accrues
interest on a basis other than a 30/360 basis, the annualized rate
that, when
applied to the Principal Balance of the related Mortgage Loan (on
the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis
for the
related loan accrual period, yields the amount of net interest that
would have
accrued during the related loan accrual period assuming a net
interest rate
equal to the rate described in clause (a) above, and assuming an
interest
accrual basis that is the same as the actual interest accrual basis
of such
Mortgage Loan, provided that for purposes of this clause (b), (i)
the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due
Dates in both
January (commencing in 2006) and February (commencing in 2006) in
any year that
is not a leap year and in February in any year that is a leap year,
shall be
determined net of any amounts transferred to the Interest Reserve
Account and
(ii) the REMIC I Net Mortgage Rate for the loan accrual period
relating to the
Due Date in March (commencing in 2006) shall be determined taking
into account
the addition of any amounts withdrawn from the Interest Reserve
Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall
consist of,
with respect to each Mortgage Loan, an interest having an initial
Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of
such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net
Mortgage Rate
of such Mortgage Loan.
-51-
"REMIC II" means the segregated pool of assets consisting of the
REMIC
I Regular Interests and related amounts in the Distribution Account
for which a
REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance equal to the
Aggregate
Certificate Balance of the Class A-1 Certificates, and which has a
Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance equal to the
Aggregate
Certificate Balance of the Class A-1A Certificates, and which has a
Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance equal to Aggregate
Certificate
Balance of the Class A-2 Certificates, and which has a Pass-Through
Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class A-3 Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-AB" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class A-AB Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class A-4 Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class A-M Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
-52-
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
-53-
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having a Certificate Balance equal to the Aggregate
Certificate Balance
of the Class S Certificates, and which has a Pass-Through Rate
equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular
Interest A-1, REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-2,
REMIC II Regular Interest A-3, REMIC II Regular Interest A-AB,
REMIC II Regular
Interest A-4, REMIC II Regular Interest A-M, REMIC II Regular
Interest A-J,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II
Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest
F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II
Regular
Interest M, REMIC II Regular Interest N, REMIC II Regular Interest
O, REMIC II
Regular Interest P, REMIC II Regular Interest Q and the REMIC II
Regular
Interest S.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution
Account for
which a REMIC election has been made pursuant to Section 12.1(a)
hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the
penultimate
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-1A, Class A-2 Certificates, Class A-3
Certificates, Class
A-AB Certificates, Class A-4
-54-
Certificates, Class A-M Certificates, Class A-J Certificates, Class
X
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates,
Class E Certificates, Class F Certificates, Class G Certificates,
Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates,
Class M Certificates, Class N Certificates, Class O Certificates,
Class P
Certificates, Class Q Certificates and the portion of the Class S
Certificates
representing the Class S REMIC Interest that is a "regular
interest" in REMIC
III.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax
law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and final, temporary and proposed regulations and
rulings
promulgated thereunder, as the foregoing may be in effect from time
to time and
taking account, as appropriate, of any proposed legislation or
regulations
which, as proposed, would have an effective date prior to enactment
or
promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A-1,
Class
A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-M, Class
A-J, Class
X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent
resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and
recoveries
(including proceeds of a final sale) from the sale or other
disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had not
been
security for an A/B Mortgage Loan or Loan Pair for any Collection
Period, all
income received in connection with such REO Property during such
period less any
operating expenses, utilities, real estate taxes, management fees,
insurance
premiums, expenses for maintenance and repairs and any other
capital expenses
directly related to such REO Property paid during such period or,
with respect
to an REO Property that had been security for an A/B Mortgage Loan
or Loan Pair,
the portion of the amounts described above received with respect to
such REO
Property and allocable to the related A Note or Serviced Pari Passu
Mortgage
Loan, as applicable, pursuant to the related Intercreditor
Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any
Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special
Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced
Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of
the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan,
and with
respect to the Mortgaged Property securing any Loan Pair or A/B
Mortgage Loan,
only the portion of such
-55-
amounts allocable to the holder of the related Serviced Pari Passu
Mortgage or
the related A Note, as applicable, shall be included in REO Income.
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged
Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein,
if
the Mortgaged Property securing any Loan Pair or the Mortgaged
Property securing
an A/B Mortgage Loan has been acquired by the Trust) acquired by
the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise
treated as foreclosure property under the REMIC Provisions;
provided that a
Mortgaged Property that secures a Non-Serviced Mortgage Loan shall
constitute an
REO Property if and when it is acquired under the related
Non-Serviced Mortgage
Loan Pooling and Servicing Agreement for the benefit of the Trustee
as the
holder of such Non-Serviced Mortgage Loan and of the holder of the
related
Non-Serviced Companion Loan(s) through foreclosure, acceptance of a
deed-in-lieu
of foreclosure, abandonment or reclamation from bankruptcy in
connection with a
default or otherwise treated as foreclosure property under the
REMIC Provisions.
The Special Servicer shall not have any obligations with respect to
an REO
Property that relates to a Mortgaged Property that secures a
Non-Serviced
Mortgage Loan and all references to the Special Servicer's
obligations in this
Agreement with respect to "REO Property" shall exclude any such
Mortgaged
Property that secures a Non-Serviced Mortgage Loan.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"REQUEST FOR RELEASE" means a request for release of certain
documents
relating to the Mortgage Loans, a form of which is attached hereto
as Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair or B
Note
as to which an Appraisal Event has occurred. In the case of an A/B
Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of
either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a
single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note will cease to
be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3,
which shall be an
Eligible Account or a subaccount of an Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class
R-I
Certificates, with respect to REMIC II, the Class R-II Certificates
and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee, any officer assigned to the Corporate Trust Services
Division, or with
respect to the Paying Agent, any officer assigned to the Global
Securities and
Trust Services Group, each with specific responsibilities for the
matters
contemplated by this Agreement and when used with respect to
-56-
any successor Trustee, Paying Agent, any Vice President, Assistant
Vice
President, corporate trust officer or any assistant corporate trust
officer or
persons performing similar roles on behalf of the Trustee or Paying
Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be
changed from
time to time by the CMSA) in, and containing substantially the
information
contemplated by, the forms attached hereto as part of Exhibit W
prepared by the
Master Servicer (combining reports in such forms prepared by the
Master Servicer
and the Special Servicer (with respect to Specially Serviced
Mortgage Loans and
REO Properties)): (i) a Comparative Financial Status Report; (ii)
without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii)
without
duplication with Section 8.14, a CMSA Operating Statement Analysis
Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File,
(vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA
Special Servicer
Loan File and (vii) a realized loss report substantially in the
form included in
Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class S, Class
Q,
Class P, Class O, Class N, Class M, Class L, Class K, Class J,
Class H, Class G,
Class F, Class E, Class D, Class C, Class B, Class A-J, Class A-M
and finally to
the Class X and Class A Senior Certificates, on a pro rata basis,
as described
herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class
of
Certificates offered and sold in reliance on Rule 144A or to
certain
Institutional Accredited Investors, a single, permanent global
Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division
of The
McGraw-Hill Companies, Inc., or its successor in interest.
"SARBANES-OXLEY CERTIFICATION" has the meaning set forth in Section
8.26(b).
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage
Loan or a B
Note required to be paid on its Due Date by the Mortgagor in
accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage
Loan or B Note
(excluding all amounts of principal and interest which were due on
or before the
Cut-Off Date, whenever received, and taking account of any
modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient
Valuation
Amounts). Notwithstanding the foregoing, the amount of the
Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion
Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related
Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as
applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO
Mortgage Loan,
for purposes of performing calculations with respect to any
Distribution Date,
the Principal Balance thereof minus the aggregate amount of any
P&I Advances of
principal previously made with respect to
-57-
such Mortgage Loan, Serviced Companion Mortgage Loan, Loan Pair, B
Note or REO
Mortgage Loan.
"SELLER" means Principal, UCMFI, LaSalle or MSMC as the case may
be.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means a mortgage loan, which is
serviced under this Agreement, is not a "Mortgage Loan" included in
the Trust,
but is paid on a pari passu basis with a Mortgage Loan included in
the Trust.
There are no Serviced Companion Mortgage Loans in the Trust.
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of
the
custodial sub-account(s) of the Certificate Account (but which are
not included
in the Trust) created and maintained by the Master Servicer
pursuant to Section
5.1(c) on behalf of the holder of the related Serviced Companion
Mortgage Loan.
Any such sub-account(s) shall be maintained as a sub-account of an
Eligible
Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a
Serviced
Pari Passu Mortgage Loan and its related Serviced Companion
Mortgage Loan
secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means a mortgage loan, which is
a
"Mortgage Loan" included in the Trust and is paid on a pari passu
basis with a
Serviced Companion Mortgage Loan. There are no Serviced Pari Passu
Mortgage
Loans in the Trust.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance
policy
maintained by the Master Servicer, the Special Servicer, the
Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2,
Section 9.2
and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance
policy under which the insurer agrees to indemnify the Master
Servicer, the
Special Servicer, the Trustee or the Paying Agent, as the case may
be, (subject
to standard exclusions) for all losses (less any deductible)
sustained as a
result of any theft, embezzlement, fraud or other dishonest act on
the part of
the Master Servicer's, the Special Servicer's, the Trustee's or the
Paying
Agent's, as the case may be, directors, officers or employees and
is maintained
in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents
listed
in the definition of "Mortgage File" relating to a Mortgage Loan
and shall also
include, to the extent required to be (and actually) delivered to
the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies
of the
following items: the Mortgage Note, any Mortgage, the Assignment of
Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any
loan
agreement, any insurance policies or certificates (as applicable),
any property
inspection reports, any financial statements on the property, any
escrow
analysis, any tax bills, any Appraisal, any environmental report,
any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreement and any Environmental Insurance Policies.
-58-
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer,
the Special Servicer or the Trustee, as the case may be, designated
as a
Servicing Advance pursuant to this Agreement and any other costs
and expenses
incurred by the Master Servicer, the Special Servicer or the
Trustee, as the
case may be, to protect and preserve the security for such Mortgage
Loan and/or
(if applicable) the related Serviced Companion Mortgage Loan or B
Note.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and
servicing of
the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note whose
name and specimen signature appear on a list of servicing officers
or employees
furnished to the Trustee by the Master Servicer and signed by an
officer of the
Master Servicer, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer or
the
Special Servicer, as the case may be, to service and administer the
Mortgage
Loans (and any Serviced Companion Mortgage Loan and B Note but not
any
Non-Serviced Mortgage Loan) that it is obligated to service and
administer
pursuant to this Agreement on behalf of the Trustee and in the best
interests of
and for the benefit of the Certificateholders (and in the case of
any Serviced
Companion Mortgage Loan or B Note, the related holder of the
Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole (as
determined by
the Master Servicer or the Special Servicer, as the case may be, in
its good
faith and reasonable judgment), in accordance with applicable law,
the terms of
this Agreement and the terms of the respective Mortgage Loans, any
Serviced
Companion Mortgage Loan and any B Note (and, in the case of any
Loan Pair or any
A Note and B Note, the related Loan Pair Intercreditor Agreement or
the related
Intercreditor Agreement, as applicable) and, to the extent
consistent with the
foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual
in
its general mortgage servicing and REO property management
activities on behalf
of third parties or on behalf of itself, whichever is higher, with
respect to
mortgage loans and REO properties that are comparable to those for
which it is
responsible hereunder;
(b) with a view to the timely collection of all Scheduled Payments
of
principal and interest under the Mortgage Loans, any Serviced
Companion Mortgage
Loan and any B Note or, if a Mortgage Loan, any Serviced Companion
Mortgage Loan
or any B Note comes into and continues in default and if, in the
good faith and
reasonable judgment of the Special Servicer, no satisfactory
arrangements can be
made for the collection of the delinquent payments, the
maximization of the
recovery of principal and interest on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any
A/B Mortgage
Loan and its related B Note or any Loan Pair, the maximization of
the recovery
of principal and interest on such A/B Mortgage Loan or Loan Pair,
as applicable,
to the Certificateholders and the holder of the related B Note or
Serviced
Companion Mortgage Loan, as applicable, all taken as a collective
whole) on a
net present value basis (the relevant discounting of anticipated
collections
that will be distributable to Certificateholders to be performed at
the rate
determined by the Special Servicer but in any event not less than
(i) the
related REMIC I Net Mortgage Rate, in the case of the Mortgage
Loans (other than
any A Note or Serviced Pari Passu Mortgage Loan) or (ii) the
weighted average of
the mortgage rates on the related A Note and B Note, in the case of
any A/B
Mortgage Loan, and on the related Serviced Pari Passu Mortgage Loan
and Serviced
-59-
Companion Mortgage Loan in the case of any Loan Pair); and without
regard to:
(I) any other relationship that the Master Servicer or the Special
Servicer, as
the case may be, or any Affiliate thereof may have with the related
Mortgagor;
(II) the ownership of any Certificate or any interest in any
Non-Serviced
Companion Mortgage Loan, Serviced Companion Mortgage Loan, B Note
or any
mezzanine loan related to a Mortgage Loan by the Master Servicer or
the Special
Servicer, as the case may be, or any Affiliate thereof; (III) the
Master
Servicer's obligation to make Advances; (IV) the right of the
Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof),
as the case may be, to receive reimbursement of costs, or the
sufficiency of any
compensation payable to it, hereunder or with respect to any
particular
transaction and (V) any obligation of the Master Servicer (or any
Affiliate
thereof) to repurchase any Mortgage Loan from the Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan (other than a Non-Serviced
Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which a
Balloon Payment
is past due, and the Master Servicer has determined, in its good
faith
reasonable judgment in accordance with the Servicing Standard, that
payment is
unlikely to be made on or before the 60th day succeeding the date
the Balloon
Payment was due, or any other payment is more than 60 days past due
or has not
been made on or before the second Due Date following the Due Date
such payment
was due; (ii) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan),
Serviced Companion Mortgage Loan or B Note as to which, to the
Master Servicer's
knowledge, the Mortgagor has consented to the appointment of a
receiver or
conservator in any insolvency or similar proceeding of, or relating
to, such
Mortgagor or to all or substantially all of its property, or the
Mortgagor has
become the subject of a decree or order issued under a bankruptcy,
insolvency or
similar law and such decree or order shall have remained
undischarged or
unstayed for a period of 30 days; (iii) any Mortgage Loan (other
than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B
Note as to
which the Master Servicer shall have received notice of the
foreclosure or
proposed foreclosure of any other lien on the Mortgaged Property;
(iv) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion
Mortgage Loan or B Note as to which the Master Servicer has
knowledge of a
default (other than a failure by the related Mortgagor to pay
principal or
interest) which in the good faith reasonable judgment of the Master
Servicer
materially and adversely affects the interests of the
Certificateholders or the
holder of any related Serviced Companion Mortgage Loan or B Note
and which has
occurred and remains unremedied for the applicable grace period
specified in
such Mortgage Loan (or, if no grace period is specified, 60 days);
(v) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion
Mortgage Loan or B Note as to which the Mortgagor admits in writing
its
inability to pay its debts generally as they become due, files a
petition to
take advantage of any applicable insolvency or reorganization
statute, makes an
assignment for the benefit of its creditors or voluntarily suspends
payment of
its obligations; and (vi) any Mortgage Loan (other than a
Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in
the good faith
reasonable judgment of the Master Servicer, (a) (other than with
respect to any
A/B Mortgage Loan) a payment default is imminent or is likely to
occur within 60
days, or (b) any other default is imminent or is likely to occur
within 60 days
and such default, in the judgment of the Master Servicer, is
reasonably likely
to materially and adversely affect the interests of the
Certificateholders or
the holder of any related Serviced Companion Mortgage Loan or B
Note (as the
case may be); provided, however, that (1) if the holder of the B
Note exercised
its right to cure a monetary default and a monetary default occurs
in the
following month due to the holder of the B Note's failure to cure,
then
servicing of such
-60-
Mortgage Loan shall be transferred to the Special Servicer on the
Business Day
following the expiration of the Cure Period (as defined in the
related
Intercreditor Agreement) of the holder of the B Note if the holder
of the B Note
does not cure the current monetary default or (2) if the holder of
the B Note
has exercised its right to cure the number of consecutive monetary
defaults it
is permitted to cure under the related Intercreditor Agreement and
a monetary
default occurs in the following month, then servicing of such
Mortgage Loan
shall be transferred to the Special Servicer at the expiration of
the
Mortgagor's grace period for the current monetary default. If a
Servicing
Transfer Event occurs with respect to an A Note, it shall be deemed
to have
occurred also with respect to its related B Note; provided,
however, that if a
Servicing Transfer Event would otherwise have occurred with respect
to an A
Note, but has not so occurred solely because the holder of the
related B Note
has exercised its cure rights under the related Intercreditor
Agreement, then a
Servicing Transfer Event will not occur with respect to such A/B
Mortgage Loan.
If a Servicing Transfer Event occurs with respect to a B Note, it
shall be
deemed to have occurred also with respect to its related A Note. If
a Servicing
Transfer Event occurs with respect to any Serviced Pari Passu
Mortgage Loan, it
shall be deemed to have occurred also with respect to the related
Serviced
Companion Mortgage Loan. If a Servicing Transfer Event occurs with
respect to
any Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also
with respect to the related Serviced Pari Passu Mortgage Loan.
Under the
applicable Non-Serviced Mortgage Loan Pooling and Servicing
Agreement, if a
Servicing Transfer Event occurs with respect to any Non-Serviced
Companion
Mortgage Loan, it shall be deemed to have occurred also with
respect to the
related Non-Serviced Mortgage Loan.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect
that it is
formed or organized solely for the purpose of owning and collecting
payments
from Defeasance Collateral for the benefit of the Trust and which
(i) does not
engage in any business unrelated thereto and the financing thereof;
(ii) does
not have any assets other than those related to its interest in
Defeasance
Collateral; (iii) maintains its own books, records and accounts, in
each case
which are separate and apart from the books, records and accounts
of any other
Person; (iv) conducts business in its own name and uses separate
stationery,
invoices and checks; (v) does not guarantee or assume the debts or
obligations
of any other Person; (vi) does not commingle its assets or funds
with those of
any other Person; (vii) transacts business with affiliates on an
arm's length
basis pursuant to written agreements; and (viii) holds itself out
as being a
legal entity, separate and apart from any other Person, and
otherwise complies
with the single-purpose requirements established by the Rating
Agencies. The
entity's organizational documents also provide that any dissolution
and winding
up or insolvency filing for such entity requires the unanimous
consent of all
partners or members, as applicable, and that such documents may not
be amended
with respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means ARCap Servicing, Inc., or any successor
Special Servicer as herein provided, including without limitation,
any successor
Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out
Fees and any other amounts to be paid to the Special Servicer
pursuant to the
terms of this Agreement.
-61-
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced
Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan
(including
REO Mortgage Loans), the fraction or portion of the Special
Servicing Fee Rate
applicable to such month (determined using the same interest
accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage
Loan,
Serviced Companion Mortgage Loan or B Note for such month)
multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage
Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the
administration and
servicing of the Specially Serviced Mortgage Loans whose name and
specimen
signature appear on a list of servicing officers or employees
furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special
Servicer signed
by an officer of the Special Servicer, as such list may from time
to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than any Non-Serviced
Mortgage Loan),
Serviced Companion Mortgage Loan or B Note with respect to which
the Master
Servicer has notified the Special Servicer, the Operating Adviser
and the
Trustee that a Servicing Transfer Event has occurred (which notice
shall be
effective upon receipt) and the Special Servicer has received all
information,
documents and records relating to such Mortgage Loan, Serviced
Companion
Mortgage Loan or B Note as reasonably requested by the Special
Servicer to
enable it to assume its duties with respect to such Mortgage Loan,
Serviced
Companion Mortgage Loan or B Note. A Specially Serviced Mortgage
Loan shall
cease to be a Specially Serviced Mortgage Loan from and after the
date on which
the Special Servicer notifies the Master Servicer, the Operating
Adviser, the
Paying Agent and the Trustee, in accordance with Section 8.1(b),
that such
Mortgage Loan (and the related B Note in the case of an A/B
Mortgage Loan, and
the related Serviced Companion Mortgage Loan in the case of a Loan
Pair) has
become a Rehabilitated Mortgage Loan (and, in the case of an A Note
(or B Note)
that is or was a Specially Serviced Mortgage Loan, its related B
Note (or A
Note) has also become a Rehabilitated Mortgage Loan and, in the
case of a
Serviced Pari Passu Mortgage Loan (or Serviced Companion Mortgage
Loan) that is
or was a Specially Serviced Mortgage Loan, its related Serviced
Companion
Mortgage Loan (or Serviced Pari Passu Mortgage Loan) has also
become a
Rehabilitated Mortgage Loan), with respect to such Servicing
Transfer Event,
unless and until the Master Servicer notifies the Special Servicer,
the Paying
Agent and the Trustee, in accordance with Section 8.1(b) that
another Servicing
Transfer Event with respect to such Mortgage Loan, Serviced
Companion Mortgage
Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended
coverage insurance policy in such amount and with such coverage as
required by
this Agreement.
-62-
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-M,
Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and
Class S
Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax
matters
person" of each REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination
of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the
assets
which consist of all the assets of REMIC I (including the Mortgage
Loans (other
than Excess Interest), such amounts related thereto as shall from
time to time
be held in the Certificate Account, the Distribution Account, the
Reserve
Account, the Interest Reserve Account, the Insurance Policies, any
REO
Properties or beneficial interests therein and other items referred
to in
Section 2.1(a) hereof); REMIC II; REMIC III and funds or assets
from time to
time on deposit in the Excess Interest Sub-account and any Excess
Interest on
the Mortgage Loans. The Trust shall not include any Non-Serviced
Companion
Mortgage Loan, any B Note, any interest of the holders of a B Note,
any A/B Loan
Custodial Account, any Serviced Companion Mortgage Loan, any
interest of the
holders of a Serviced Companion Mortgage Loan or any Serviced
Companion Mortgage
Loan Custodial Account.
"TRUSTEE" means U.S. Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee or any
co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such
successor
trustee (subject to Section 7.7 hereof) and such co-trustee
(subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan
(including REO Mortgage Loans and Defeasance Loans), the portion of
the Trustee
Fee Rate
-63-
applicable to such month (determined using the same interest
accrual methodology
(other than the rate of accrual) that is applied with respect to
the Mortgage
Rate for such Mortgage Loan for such month) multiplied by the
Scheduled
Principal Balance of each such Mortgage Loan immediately before the
Due Date
occurring in such month; provided that a portion of the Trustee Fee
agreed upon
between the Trustee and the Paying Agent shall be applied to pay
the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.0012% per annum (which includes the
Paying
Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular
Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan
and the
related B Note) and any additional documents required to be added
to the
Mortgage File pursuant to this Agreement; provided that whenever
the term
"Trustee Mortgage File" is used to refer to documents actually
received by the
Trustee or a Custodian on its behalf, such terms shall not be
deemed to include
such documents required to be included therein unless they are
actually so
received.
"UCMFI" has the meaning set forth in the Preliminary Statement
hereto.
"UCMFI LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and
shown on
Schedule II hereto.
"UNDERWRITER" means each of Morgan Stanley & Co. Incorporated,
LaSalle
Financial Services, Inc., Greenwich Capital Markets, Inc. and
Merrill Lynch,
Pierce, Fenner & Smith Incorporated and or its successors in
interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident
of
the United States, (ii) corporation or partnership organized in or
under the
laws of the United States, any State thereof or the District of
Columbia, (iii)
an estate the income of which is includible in gross income for
United States
tax purposes, regardless of its source or (iv) a trust if a court
within the
United States is able to exercise primary supervision over the
administration of
such trust, and one or more United States Tax Persons has the
authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to that party by the
Trust Fund as
part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of
Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan
or REO
Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to
any
Class of Interests or Certificates (other than the Residual
Certificates), the
portion of Distributable Certificate Interest for such Class
remaining unpaid as
of the close of business on the preceding Distribution Date.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be
changed from
time to time by the
-64-
CMSA) in, and containing substantially the information contemplated
by, the
forms attached hereto as part of Exhibit X prepared by the Master
Servicer
(combining reports in such forms prepared by the Master Servicer
and the Special
Servicer (with respect to Specially Serviced Mortgage Loans and REO
Properties)): (a) the following electronic files: (i) a Loan Setup
File (with
respect to the initial Distribution Date only); and (ii) a Loan
Periodic Update
File; and (b) the following supplemental reports: (i) a Delinquent
Loan Status
Report, (ii) an Historical Loan Modification Report, (iii) an
Historical
Liquidation Report, (iv) an REO Status Report, and (v) a CMSA Loan
Level
Reserve/LOC Report.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net
Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their
respective
Certificate Balances as of the close of business on the preceding
Distribution
Date.
"WELLS FARGO" has the meaning set forth in the Preliminary
Statement
hereto.
"WELLS FARGO LOANS" means, collectively, those Mortgage Loans sold
to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and
shown on
Schedule II hereto.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set forth in
subsection (II)(i) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced
Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y)
the amount of
each collection of interest (other than default interest and any
Excess
Interest) and principal received (including any Condemnation
Proceeds received
and applied as a collection of such interest and principal) on such
Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it
remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
(a) Calculations required to be made by the Paying Agent pursuant
to
this Agreement with respect to any Mortgage Loan, Serviced
Companion Mortgage
Loan or B Note shall be made based upon current information as to
the terms of
such Mortgage Loan, Serviced Companion Mortgage Loan and B Note and
reports of
payments received from the Master Servicer on such Mortgage Loan,
Serviced
Companion Mortgage Loan and B Note and payments to be made to the
Paying Agent
as supplied to the Paying Agent by the Master Servicer. The Paying
Agent shall
not be required to recompute, verify or recalculate the information
supplied to
it by the Master Servicer and may conclusively rely upon such
information in
making such calculations. If, however, a Responsible Officer of the
Paying Agent
has actual knowledge of an error in the calculations, the Paying
Agent shall
inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage
Loan,
Serviced Companion Mortgage Loan or B Note documents (or the
related
Intercreditor Agreement or related Loan Pair Intercreditor
Agreement, as
applicable), or as otherwise provided for in the definition of
Liquidation
Realized Loss, any amounts (other than escrow and reserve deposits
and
reimbursements of lender advances and expenses) received in respect
of a
Mortgage
-65-
Loan, a Serviced Companion Mortgage Loan or a B Note as to which a
default has
occurred and is continuing shall be applied first to overdue
interest due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note at the
Mortgage Rate thereof, next to current interest due with respect to
such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the
Mortgage Rate
thereof, next to the reduction of the Principal Balance of such
Mortgage Loan,
Serviced Companion Mortgage Loan or B Note to zero if such Mortgage
Loan,
Serviced Companion Mortgage Loan or B Note has been accelerated and
in respect
of any scheduled payments of principal then due to the extent that
such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note has not yet been
accelerated,
next to any default interest and other amounts due on such Mortgage
Loan,
Serviced Companion Mortgage Loan or B Note and finally to Late Fees
due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note. The
foregoing allocations are intended to govern loan level allocations
but shall
not govern allocations of such amounts at the trust level for the
purpose of
determining Principal Distribution Amounts or Distributable
Certificate
Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest
on any Certificate shall be calculated based upon a 360-day year
consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to
eight
decimal places, rounded if necessary. All dollar amounts calculated
hereunder
shall be rounded to the nearest penny.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date,
Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer
Remittance
Date, Master Servicer Remittance Date or Determination Date, such
reference
shall be to the Collection Period, Interest Accrual Period, Record
Date, Due
Date, Report Date, Special Servicer Remittance Date, Master
Servicer Remittance
Date or Determination Date, as applicable, immediately preceding
such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined
in Section
1.1 shall have the respective meanings given to them under
generally accepted
accounting principles or regulatory accounting principles, as
applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar
import, when used in this Agreement, shall refer to this agreement
as a whole
and not to any particular provision of this Agreement, and
references to
Sections, Schedules and Exhibits contained in this Agreement are
references to
Sections, Schedules and Exhibits in or to this Agreement unless
otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such
term shall be equally applicable to both the singular and plural
forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between
the parties and has been reviewed by each party hereto and its
counsel. Each
party agrees that any
-66-
ambiguity in this Agreement shall not be interpreted against the
party drafting
the particular clause which is in question.
SECTION 1.5 ARD LOANS.
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of
the
step-up in the Mortgage Rate upon failure of the related Mortgagor
to pay the
principal due on the Anticipated Repayment Date as specifically
provided for in
the related Mortgage Note shall not be taken into account for
purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment,"
"Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an
asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess
Interest on any
Mortgage Loan unless the taking of such action is consistent with
the Servicing
Standard and all other amounts due under such Mortgage Loan have
been paid, and,
in the good faith and reasonable judgment of the Master Servicer
and the Special
Servicer, as the case may be, the Liquidation Proceeds expected to
be recovered
in connection with such enforcement action will cover the
anticipated costs of
such enforcement action and, if applicable, any associated interest
thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan, after its Anticipated Repayment
Date,
the Master Servicer or the Special Servicer, as the case may be,
shall be
permitted, in its discretion, to waive in accordance with Section
8.18 and
Section 9.5 hereof, all or any accrued Excess Interest if, prior to
the related
Maturity Date, the related Mortgagor has requested the right to
prepay the
Mortgage Loan in full together with all payments required by the
Mortgage Loan
in connection with such prepayment except for all or a portion of
accrued Excess
Interest, provided that the Master Servicer's or the Special
Servicer's
determination to waive the right to such accrued Excess Interest is
in
accordance with the Servicing Standard and with Section 8.18 and
Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case
may be, will
have no liability to the Trust, the Certificateholders or any other
person so
long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related
Loan
Pair Intercreditor Agreement or the related Intercreditor
Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no
longer part of
the Trust Fund or is no longer serviced pursuant to the terms of
this Agreement,
the holder of such Serviced Pari Passu Mortgage Loan or B Note, as
applicable,
shall negotiate one or more new servicing agreements with the
Master Servicer
and the Special Servicer, provided that, prior to entering into any
such new
servicing agreement, the new holder of such Serviced Pari Passu
Mortgage Loan or
B Note,
-67-
as applicable, shall obtain and provide to the holder of the
related Serviced
Companion Mortgage Loan and/or B Note written confirmation from
each rating
agency then rating any securitization relating to such Serviced
Companion
Mortgage Loan and/or B Note providing that such new servicing
agreement will not
result in the downgrade, qualification or withdrawal of its
then-current ratings
of any securities issued in such securitization; provided, that
prior to such
time the Master Servicer and the Special Servicer shall continue to
service the
related Loan Pair and/or A/B Mortgage Loan to the extent provided
in the related
Loan Pair Intercreditor Agreement or the related Intercreditor
Agreement, as
applicable.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the
Master
Servicer and the Special Servicer under Article VIII and Article IX
and the
obligation of the Master Servicer to make Advances, insofar as such
rights,
duties and obligations relate to any A/B Mortgage Loan (including
both the
related A Note and the related B Note) or Loan Pair, shall
terminate upon the
earliest to occur of the following with respect to such A/B
Mortgage Loan or
Loan Pair, as the case may be: (i) any repurchase of or
substitution for the
related A Note or Serviced Pari Passu Mortgage Loan by the
applicable Seller
pursuant to Section 2.3, (ii) any purchase of the related A Note by
the owner of
the related B Note pursuant to the terms of the related
Intercreditor Agreement
and (iii) any payment in full of any and all amounts due (or deemed
due) under
the related A Note or Serviced Pari Passu Mortgage Loan (or its
successor REO
Mortgage Loan) (including amounts to which the holder of such A
Note or Serviced
Pari Passu Mortgage Loan is entitled under the related
Intercreditor Agreement
or related Loan Pair Intercreditor Agreement), as applicable;
provided, however,
that this statement shall not limit (A) the duty of the Master
Servicer or the
Special Servicer to deliver or make available the reports otherwise
required of
it hereunder with respect to the Collection Period in which such
event occurs or
(B) the rights of the Master Servicer or the Special Servicer that
may otherwise
accrue or arise in connection with the performance of its duties
hereunder with
respect to such A/B Mortgage Loan or Loan Pair prior to the date on
which such
event occurs.
(c) In connection with any purchase described in clause (ii) of
subsection (b) or an event described in clause (iii) of subsection
(b), the
Trustee, the Master Servicer and the Special Servicer shall each
tender to (in
the case of a purchase under such clause (ii)) the related
purchaser (provided
that the related purchaser shall have paid the full amount of the
applicable
purchase price) or (in the case of such clause (iii)) to the holder
of the
related Serviced Companion Mortgage Loan or B Note (if then still
outstanding),
upon delivery to them of a receipt executed by such purchaser or
holder, all
portions of the Mortgage File and other documents pertaining to
such Loan Pair
or A/B Mortgage Loan, as applicable, possessed by it, and each
document that
constitutes a part of the Mortgage File shall be endorsed or
assigned to the
extent necessary or appropriate to such purchaser or holder (or the
designee of
such purchaser or holder) in the same manner, and pursuant to
appropriate forms
of assignment, substantially similar to the manner and forms
pursuant to which
documents were previously assigned to the Trustee by the related
Seller, but in
any event, without recourse, representation or warranty; provided
that such
tender by the Trustee shall be conditioned upon its receipt from
the Master
Servicer of a Request for Release. The Master Servicer shall, and
is also hereby
authorized and empowered by the Trustee to, convey to such
purchaser or such
holder any deposits then held in an Escrow Account relating to the
applicable
A/B Mortgage Loan or Loan Pair. If a Serviced Pari Passu Mortgage
Loan and the
related Serviced Companion Mortgage Loan or an A Note and the
related B Note
under the applicable Mortgage Loan are then REO
-68-
Mortgage Loans, then the Special Servicer shall, and is also hereby
authorized
and empowered by the Trustee to, convey to such purchaser or such
holder, in
each case, to the extent not needed to pay or reimburse the Master
Servicer, the
Special Servicer or the Trustee in accordance with this Agreement,
deposits then
held in the REO Account insofar as they relate to the related REO
Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee
or the Paying
Agent, as applicable, primarily to the administration of the Trust
Fund or any
REMIC formed hereunder or to any determination respecting the
amount, payment or
avoidance of any tax under the REMIC Provisions or the actual
payment of any
REMIC tax or expense with respect to any REMIC formed hereunder,
then such
expense shall not be allocated to, deducted or reimbursed from, or
otherwise
charged against the holder of any Serviced Companion Mortgage Loan
or B Note and
such holder shall not suffer any adverse consequences as a result
of the payment
of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby
assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the
Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan
Schedule
including the related Mortgage Notes, Mortgages, security
agreements and title,
hazard and other insurance policies, including all Qualifying
Substitute
Mortgage Loans, all distributions with respect thereto payable
after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in
the
Distribution Account, all REO Accounts, the Certificate Account,
the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's
rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned
to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit,
(iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair
Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and
the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with
respect to any
Non-Serviced Mortgage Loan and (v) all other assets included or to
be included
in REMIC I for the benefit of REMIC II and REMIC III or the Class S
Grantor
Trust for the benefit of the Class S Certificates. Such assignment
includes all
interest and principal received or receivable on or with respect to
the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the
related rights and property accomplished hereby is absolute and is
intended by
the parties to constitute a sale. In connection with the initial
sale of the
Certificates by the Depositor, the purchase price to be paid
includes a portion
attributable to interest accruing on the Certificates from and
after the Cut-Off
Date. The transfer and assignment of any Non-Serviced Mortgage
Loans to the
Trustee and the right to service such Mortgage Loans are subject to
the terms
and conditions of the related Non-Serviced Mortgage Loan Pooling
and Servicing
Agreement and the related Non-Serviced Mortgage Loan Intercreditor
Agreement,
and the Trustee, by the execution and delivery of this Agreement,
hereby agrees
that such Mortgage Loans remain subject to the terms of the related
Non-Serviced
Mortgage Loan Intercreditor
-69-
Agreement and, with respect to each Serviced Pari Passu Mortgage
Loan and
Serviced Companion Mortgage Loan, the related Loan Pair
Intercreditor Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section
2.1(a) above, the Depositor shall direct, and hereby represents and
warrants
that it has directed, each Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be
delivered to
and deposited with, the Trustee or a Custodian appointed hereunder,
on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so
assigned, endorsed
to the Trustee as specified in clause (i) of the definition of
"Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan
Purchase
Agreement, to deliver to the Trustee the remaining documents
constituting the
Mortgage File for each Mortgage Loan within the time period set
forth therein.
None of the Trustee, the Paying Agent, any Custodian, the Master
Servicer or the
Special Servicer shall be liable for any failure by any Seller or
the Depositor
to comply with the document delivery requirements of the Mortgage
Loan Purchase
Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at the expense of such Seller as
to
each of its respective Mortgage Loans, promptly (and in any event
within 45 days
following the receipt thereof) cause to be submitted for recording
or filing
(except with respect to any Mortgage that has been recorded in the
name of MERS
or its designees), as the case may be, in the appropriate public
office for real
property records or UCC financing statements, as appropriate, each
assignment to
the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the
definition
of "Mortgage File;" provided, if the related Mortgage and UCC
financing
statements have been recorded in the name of MERS or its designee,
no such
assignments will be required to be submitted for recording or
filing and
instead, the applicable Seller has agreed in the applicable
Mortgage Loan
Purchase Agreement to take all actions as are necessary to cause
the Trustee to
be shown as, and the Trustee shall take all actions necessary to
confirm that it
is shown as, the owner of the related Mortgage on the records of
MERS for
purposes of the system of recording transfers of beneficial
ownership of
mortgages maintained by MERS. Each such assignment shall reflect
that it should
be returned by the public recording office to the Trustee following
recording or
filing; provided that in those instances where the public recording
office
retains the original Assignment of Mortgage, assignment of
Assignment of Leases
or assignment of UCC financing statements, the applicable Seller
shall obtain
therefrom a certified copy of the recorded original. The applicable
Seller shall
forward copies thereof to the Trustee and the Special Servicer and,
if recorded
in the name of MERS, shall deliver to the Master Servicer and the
Special
Servicer, within 45 days of the Closing Date, evidence confirming
that the
Trustee is shown as the owner on the record of MERS. If any such
document or
instrument is lost or returned unrecorded or unfiled, as the case
may be,
because of a defect therein, the applicable Seller shall, pursuant
to the
applicable Mortgage Loan Purchase Agreement, promptly prepare or
cause to be
prepared a substitute therefor or cure such defect, as the case may
be, and
thereafter the applicable Seller shall upon receipt thereof cause
the same to be
duly recorded or filed, as appropriate. After the applicable Seller
has caused
the Trustee to be identified on the records of MERS as the owner of
a Mortgage,
it shall be the sole responsibility of the Master Servicer to
ensure that
subsequent relevant events relating to the Mortgage (as, for
example,
assumptions and partial releases) are promptly and properly
registered with MERS
throughout the term of the related Mortgage Loan for so long as the
Mortgage
Loan is an asset of the Trust.
-70-
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to
deliver to the
Trustee, on or before the fifth Business Day after the Closing
Date, five
limited powers of attorney substantially in the form attached as
Exhibit C to
the applicable Primary Servicing Agreement in favor of the Trustee
and the
Special Servicer to empower the Trustee and, in the event of the
failure or
incapacity of the Trustee, the Special Servicer, to submit for
recording, at the
expense of the applicable Seller, any mortgage loan documents
required to be
recorded as described in the preceding paragraph and any
intervening assignments
with evidence of recording thereon that are required to be included
in the
Mortgage Files (so long as original counterparts have previously
been delivered
to the Trustee). The Sellers agree to reasonably cooperate with the
Trustee and
the Special Servicer in connection with any additional powers of
attorney or
revisions thereto that are requested by such parties for purposes
of such
recordation. The Trustee and each other party hereto agrees that no
such power
of attorney shall be used with respect to any Mortgage Loan by or
under
authorization by any party hereto except to the extent that the
absence of a
document described in the second preceding sentence with respect to
such
Mortgage Loan remains unremedied as of the earlier of (i) the date
that is 180
days following the delivery of notice of such absence to the
related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii)
the date (if
any) on which such Mortgage Loan becomes a Specially Serviced
Mortgage Loan. The
Trustee shall submit such documents for recording, at the related
Seller's
expense, after the periods set forth above; provided, however, the
Trustee shall
not submit such assignments for recording if the applicable Seller
produces
evidence that it has sent any such assignment for recording and
certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the
Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not
required to be a
part of a Mortgage File in accordance with the definition thereof
shall be
delivered to the Master Servicer or the applicable Primary Servicer
on its
behalf, on or before the date that is 45 days following the Closing
Date and
shall be held by the Master Servicer or the applicable Primary
Servicer on
behalf of the Trustee in trust for the benefit of the
Certificateholders. To the
extent delivered to the Master Servicer or the applicable Primary
Servicer by
the related Seller, the Servicer Mortgage File, will include, to
the extent
required to be (and actually) delivered to the applicable Seller
pursuant to the
applicable Mortgage Loan documents, copies of the following items:
the Mortgage
Note, any Mortgage, the Assignment of Leases and the Assignment of
Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance
policies or
certificates (as applicable), the property inspection reports, any
financial
statements on the property, any escrow analysis, the tax bills, the
Appraisal,
the environmental report, the engineering report, the asset
summary, financial
information on the Mortgagor/sponsor and any guarantors, any
letters of credit,
any intercreditor agreement and any Environmental Insurance
Policies.
Notwithstanding the foregoing, no Seller shall be required to
deliver any draft
documents, or any attorney-client communications that are
privileged
communications or constitute legal or other due diligence analyses,
or internal
communications of the Seller or its affiliates, or credit
underwriting or other
analyses or data. Delivery of any of the foregoing documents to the
applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the
Master
Servicer and satisfy the Depositor's obligations under this Section
2.1(d). None
of the Master Servicer, the Special Servicer or the applicable
Primary Servicer
shall have any liability for the absence of any of the foregoing
items from the
Servicing Mortgage File if such item was not delivered by the
related Seller.
-71-
(e) In connection with the Depositor's assignment pursuant to
Section
2.1(a) above, the Depositor shall deliver to the Trustee on or
before the
Closing Date a copy of a fully executed counterpart of each
Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing
Date, which
Mortgage Loan Purchase Agreements shall contain the representations
and
warranties made by the Sellers with respect to each related
Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the
Principal
Loans from Principal, the UCMFI Loans from UCMFI, the LaSalle Loans
from LaSalle
and the MSMC Loans from MSMC. The Depositor will deliver or cause
to be
delivered the original Mortgage Notes (or lost note affidavits with
copies of
the related Mortgage Notes, as described in the definition of
"Mortgage File")
relating to the Principal Loans to the Trustee, endorsed as
otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage
Notes and all
related deeds of trust, mortgages and other loan documents. The
Depositor will
deliver or cause to be delivered the original Mortgage Notes (or
lost note
affidavits with copies of the related Mortgage Notes, as described
in the
definition of "Mortgage File") relating to the UCMFI Loans to the
Trustee,
endorsed as otherwise provided herein, to effect the transfer to
the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and
other loan
documents. The Depositor will deliver or cause to be delivered the
original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage
Notes, as described in the definition of "Mortgage File") relating
to the
LaSalle Loans to the Trustee, endorsed as otherwise provided
herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related
deeds of
trust, mortgages and other loan documents. The Depositor will
deliver or cause
to be delivered the original Mortgage Notes (or lost note
affidavits with copies
of the related Mortgage Notes, as described in the definition of
"Mortgage
File") relating to the MSMC Loans to the Trustee, endorsed as
otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage
Notes and all
related deeds of trust, mortgages and other loan documents. To
avoid the
unnecessary expense and administrative inconvenience associated
with the
execution and recording of multiple assignment documents,
Principal, LaSalle,
UCMFI and MSMC, as applicable, are required under the Mortgage Loan
Purchase
Agreements to deliver Assignments of Mortgages and assignments of
Assignments of
Leases and assignments of UCC financing statements naming the
Trustee, on behalf
of the Certificateholders, as assignee. Notwithstanding the fact
that the
assignments shall name the Trustee, on behalf of the
Certificateholders, as the
assignee, the parties hereto acknowledge and agree that for all
purposes the
Principal Loans shall be deemed to have been transferred from
Principal to the
Depositor, the LaSalle Loans shall be deemed to have been
transferred from
LaSalle to the Depositor, the UCMFI Loans shall be deemed to have
been
transferred from UCMFI to the Depositor and the MSMC Loans shall be
deemed to
have been transferred from MSMC to the Depositor, and all Mortgage
Loans shall
be deemed to have been transferred from the Depositor to the
Trustee on behalf
of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to
it, (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular
Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders. To the extent that the contents of the Mortgage
File for any
A Note relate to the corresponding B Note, the Trustee, or the
Custodian on the
Trustee's behalf, will also hold such Mortgage File in trust for
the benefit of
the holder of the related B Note; provided, that if a B Note
remains outstanding
following payment in full of the amounts due under the related A
Notes, the
Mortgage Loan documents relating to such A/B Mortgage Loan
-72-
(exclusive of any such documents related solely to the A Notes)
shall be
assigned to the holder of the B Note or its designee. To the extent
that the
contents of the Mortgage File for any Serviced Pari Passu Mortgage
Loan relate
to the corresponding Serviced Companion Mortgage Loan, the Trustee,
or the
Custodian, on the Trustee's behalf, will also hold such Mortgage
File in trust
for the benefit of the holder of the related Serviced Companion
Mortgage Loan.
On the Closing Date in respect of the Initial Certification, and
within 75 days after the Closing Date in respect of the Final
Certification, the
Trustee shall examine the Mortgage Files in its possession, and
shall deliver to
the Depositor, the Sellers, the Master Servicer, the Special
Servicer, the
Operating Adviser and the holder of any Serviced Companion Mortgage
Loan a
certification (the "Initial Certification" and the "Final
Certification",
respectively, in the respective forms set forth as Exhibit B-1 and
Exhibit B-2
hereto), which shall be in electronic format (i) in the case of the
Initial
Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule,
except as may be specified in the schedule of exceptions attached
thereto, to
the effect that: (A) all documents pursuant to clause (i) of the
definition of
"Mortgage File" are in its possession, (B) such documents have been
reviewed by
it and have not been materially mutilated, damaged, defaced, torn
or otherwise
physically altered, and such documents relate to such Mortgage
Loan, and (C)
each Mortgage Note has been endorsed as provided in clause (i) of
the definition
of "Mortgage File", and (ii) in the case of the Final
Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may
be specified
in the schedule of exceptions attached thereto, to the effect that:
(A) (I) all
documents pursuant to clauses (i), (ii), (iv), (v), (vi), (viii),
(x) and (xii)
of the definition of "Mortgage File" required to be included in the
Mortgage
File (to the extent required to be delivered pursuant to this
Agreement and the
applicable Primary Servicing Agreement), and with respect to all
documents
specified in the other clauses of the definition of "Mortgage File"
to the
extent known by a Responsible Officer of the Trustee to be required
pursuant to
this Agreement, are in its possession, and (II) for each Mortgage
recorded in
the name of MERS or its designee, the Trustee is shown as the
transferee of the
related Mortgage on the records of MERS for purposes of the system
maintained by
MERS of recording transfers of beneficial ownership for mortgages,
(B) such
documents have been reviewed by it and have not been materially
mutilated,
damaged, defaced, torn or otherwise physically altered, and such
documents
relate to such Mortgage Loan, (C) based on its examination and only
as to the
Mortgage Note and Mortgage, the street address of the Mortgaged
Property set
forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately
reflects the information contained in the documents in the Mortgage
File, and
(D) each Mortgage Note has been endorsed. Notwithstanding the
foregoing, the
delivery of a commitment to issue a Title Insurance Policy in lieu
of the
delivery of the actual Title Insurance Policy shall not be
considered a Material
Document Defect with respect to any Mortgage File if such actual
Title Insurance
Policy is delivered to the Trustee or a Custodian on its behalf not
later than
the 180th day following the Closing Date.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as
described in the
definition of "Mortgage File," with evidence of recording thereon)
or otherwise
provide evidence of such recordation to the Master Servicer, the
Special
Servicer, the Operating Adviser and each Seller, and if any
recorded assignment
of Mortgage has not been received by the Trustee by such time, the
Trustee shall
provide information in such confirmation on the status of missing
assignments.
The Trustee agrees to use reasonable efforts to submit for
recording any
unrecorded assignments of Mortgage that have been delivered to it
(including
effecting such recordation process through or
-73-
cooperating with the applicable Seller), such recordation to be at
the expense
of the applicable Seller; provided, however, that the Trustee shall
not submit
for recording any such assignments if the applicable Seller
produces evidence
that it has sent any such assignment for recording and is awaiting
its return
from the applicable recording office. In giving the certifications
required
above, the Trustee shall be under no obligation or duty to inspect,
review or
examine any such documents, instruments, securities or other papers
to determine
whether they or the signatures thereon are valid, legal, genuine,
enforceable,
in recordable form or appropriate for their represented purposes,
or that they
are other than what they purport to be on their face, or to
determine whether
any Mortgage File should include any assumption agreement,
modification
agreement, consolidation agreement, extension agreement, Assignment
of Lease,
ground lease, UCC financing statement, guaranty, written assurance,
substitution
agreement, lock box agreement, intercreditor agreement, management
agreement or
letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the
fact that the
recordation and/or filing has not been completed (based solely on
the absence of
receipt by the Custodian (or the Trustee) of the particular
documents showing
evidence of the recordation and/or filing), then the Custodian on
behalf of the
Trustee (or the Trustee) shall continuously update such schedule of
exceptions
to reflect receipt of any corrected documents, additional documents
or
instruments or evidences of recordation and/or filing, as to each
Mortgage Loan,
until the earliest of the following dates: (i) the date on which
all such
exceptions are eliminated (any such elimination resulting from the
fact that
recordation and/or filing has been completed shall be based solely
on receipt by
the Custodian or the Trustee of the particular documents showing
evidence of the
recordation and/or filing), (ii) the date on which all the affected
Mortgage
Loans are removed from the Trust and (iii) the second anniversary
of the Closing
Date, and shall provide such updated schedule of exceptions (which
may be in
electronic format) to each of the Depositor, each Seller (as to its
respective
Mortgage Loans only), the Master Servicer, the Special Servicer,
the Operating
Adviser, the Paying Agent and the holder of any Serviced Companion
Mortgage Loan
on or about the date that is 180 days after the Closing Date and
then again
every 90 days thereafter (until the earliest date specified above).
Upon
request, the Paying Agent shall promptly forward a copy thereof to
each
Certificateholder in the Controlling Class and shall deliver or
make available a
copy thereof to other Certificateholders. Promptly, and in any
event within two
Business Days, following any request therefor by the Depositor, the
Master
Servicer, the Special Servicer, the Operating Adviser or the holder
of any
Serviced Companion Mortgage Loan that is made later than two years
following the
Closing Date, the Custodian (or the Trustee) shall deliver an
updated schedule
of exceptions, which may be in electronic format (to the extent the
prior
schedule showed exceptions), to the requesting Person and the
Paying Agent,
which shall make available a copy thereof. Upon request, the Master
Servicer
shall provide to the Trustee the names and addresses of each holder
of a
Serviced Companion Mortgage Loan of which the Master Servicer has
received
notice in accordance with this Agreement and/or the related Loan
Pair
Intercreditor Agreement.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and
subject to the
terms and conditions set forth herein.
-74-
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND
WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as
and when
required, has not been properly executed, or is defective on its
face or
discovers or receives notice of a breach of any of the
representations and
warranties relating to the Mortgage Loans required to be made by a
Seller
regarding the characteristics of the Mortgage Loans and/or related
Mortgaged
Properties as set forth in the related Mortgage Loan Purchase
Agreements, and,
in either case, the party discovering such defect or breach
determines that
either (i) the defect or breach materially and adversely affects
the interests
of the holders of the Certificates in the related Mortgage Loan or
(ii) both (A)
the defect or breach materially and adversely affects the value of
the Mortgage
Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage
Loan or
Rehabilitated Mortgage Loan (any such defect described in the
preceding clause
(i) or (ii), a "Material Document Defect", and such a breach
described in the
preceding clause (i) or (ii), a "Material Breach") the party
determining that
such Material Document Defect or Material Breach exists shall give
prompt
written notice to the other parties hereto and to each Rating
Agency subject to
the terms of the applicable Mortgage Loan Purchase Agreement.
Promptly (but in
any event within three Business Days) upon determining (or becoming
aware of
another party's determination) that any such Material Document
Defect or
Material Breach exists, the Master Servicer shall, and the Special
Servicer may,
request that the related Seller, not later than 90 days from such
Seller's
receipt of the notice of such Material Document Defect or Material
Breach, cure
such Material Document Defect or Material Breach, as the case may
be, in all
material respects; provided, however, that if such Material
Document Defect or
Material Breach, as the case may be, cannot be corrected or cured
in all
material respects within such 90-day period, and such Material
Document Defect
or Material Breach would not cause the Mortgage Loan to be other
than a
"qualified mortgage" (as defined in the Code) but the related
Seller is
diligently attempting to effect such correction or cure, as
certified by such
Seller in an Officer's Certificate delivered to the Trustee, then
the cure
period will be extended for an additional 90 days unless, solely in
the case of
a Material Document Defect, (x) the Mortgage Loan is then a
Specially Serviced
Mortgage Loan and a Servicing Transfer Event has occurred as a
result of a
monetary default or as described in clause (ii) or clause (v) of
the definition
of "Servicing Transfer Event" and (y) the Material Document Defect
was
identified in a certification delivered to the Seller by the
Trustee pursuant to
Section 2.2 not less than 90 days prior to the delivery of the
notice of such
Material Document Defect. The parties acknowledge that neither
delivery of a
certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or
otherwise nor possession of such certification or schedule by the
Seller shall,
in and of itself, constitute delivery of notice of any Material
Document Defect
or knowledge or awareness by the Seller or any party hereto of any
Material
Document Defect listed therein.
If any Material Document Defect or Material Breach that exists
cannot
be corrected or cured in all material respects within the above
cure periods,
the related Seller will be obligated, not later than the last day
of such
permitted cure period, to (i) repurchase the affected Mortgage Loan
or REO
Mortgage Loan from the Trust at the applicable Purchase Price in
accordance with
the related Mortgage Loan Purchase Agreement, or (ii) if within the
three-month
period commencing on the Closing Date (or within the two-year
period commencing
on the Closing Date if the related Mortgage Loan is a "defective
obligation"
within the meaning of
-75-
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section
1.860G-2(f)), at the related Seller's option, without recourse
(other than the
representations and warranties made with respect thereto), replace
such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage
Loan. If such
Material Document Defect or Material Breach would cause the
Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then
notwithstanding
the previous sentence or the previous paragraph, the repurchase
must occur
within 85 days from the date the related Seller was notified of the
defect and
substitution must occur within the sooner of (i) 85 days from the
date the
related Seller was notified of the defect or (ii) two years from
the Closing
Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the
substitution unless the
related Seller has delivered to the Trustee for such Qualifying
Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
related Assignment
of Mortgage, and such other documents and agreements as are
required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1,
and the Master
Servicer shall be entitled to rely on statements and certifications
from the
Trustee for this purpose. No substitution may be made in any
calendar month
after the Determination Date for such month. Monthly payments due
with respect
to Qualifying Substitute Mortgage Loans in the month of
substitution shall not
be part of the Trust and will be retained by Master Servicer and
remitted by the
Master Servicer to the related Seller on the next succeeding
Distribution Date.
For the month of substitution, distributions to Certificateholders
will include
the Scheduled Payment due on the related Deleted Mortgage Loan for
such month
and thereafter the related Seller shall be entitled to retain all
amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and the
substitution of the Qualifying Substitute Mortgage Loan or Loans
and upon such
amendment the Master Servicer shall deliver or cause to be
delivered such
amended Mortgage Loan Schedule to the Trustee (and the Custodian),
the Paying
Agent and the Special Servicer. Upon such substitution, the
Qualifying
Substitute Mortgage Loan or Loans shall be subject to the terms of
this
Agreement in all respects. Upon receipt of the Trustee Mortgage
File pertaining
to any Qualifying Substitute Mortgage Loans, the Trustee shall
release the
Trustee Mortgage File relating to such Deleted Mortgage Loan to the
related
Seller, and the Trustee (and the Depositor, if necessary) shall
execute and
deliver such instruments of transfer or assignment in the form
presented to it,
in each case without recourse, representation or warranty, as shall
be necessary
to vest title (provided, however, if applicable, the Master
Servicer will take
all necessary action to register the transfer of ownership of the
Mortgage
related to such Deleted Mortgage Loan on the records of MERS) (to
the extent
that such title was transferred to the Trustee or the Depositor) in
the related
Seller or its designee to any Deleted Mortgage Loan (including any
property
acquired in respect thereof or any insurance policy proceeds
relating thereto)
substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such
Defective Mortgage
Loan is cross-collateralized and cross-defaulted with one or more
other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document
defect or
breach does not constitute a Material Document Defect or Material
Breach, as the
case may be, as to such Crossed Mortgage Loans (without regard to
this
paragraph), then the applicable document defect or breach (as the
case may be)
shall be deemed to constitute a Material Document Defect or
Material Breach (as
the case may be) as to each
-76-
such Crossed Mortgage Loan for purposes of the above provisions,
and the related
Seller shall be obligated to repurchase or replace each such
Crossed Mortgage
Loan in accordance with the provisions above unless, in the case of
such breach
or document defect, the Seller (A) provides a Nondisqualification
Opinion to the
Trustee at the expense of the Seller and (B) both of the following
conditions
would be satisfied if the related Seller were to repurchase or
replace only
those Mortgage Loans as to which a Material Breach or Material
Document Defect
had occurred without regard to this paragraph (the "Affected
Loan(s)"): (i) the
Debt Service Coverage Ratio for all such other Mortgage Loans
(excluding the
Affected Loan(s)) for the four calendar quarters immediately
preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x
below the
debt service coverage ratio for all such other Mortgage Loans
(including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus
Supplement
and (B) the debt service coverage ratio for all such Crossed
Mortgage Loans
(including the Affected Loan(s)) for the four preceding calendar
quarters
preceding the repurchase or replacement, and (ii) the Loan-to-Value
Ratio for
all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is
not greater
than the greater of (A) the loan-to-value ratio, expressed as a
whole number
(taken to one decimal place), for all such Crossed Mortgage Loans
(including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus
Supplement
plus 10% and (B) the loan-to-value ratio for all such Crossed
Mortgage Loans
(including the Affected Loan(s)), at the time of repurchase or
replacement. The
determination of the Master Servicer as to whether the conditions
set forth
above have been satisfied shall be conclusive and binding in the
absence of
manifest error. The Master Servicer will be entitled to cause to be
delivered,
or direct the related Seller to (in which case the related Seller
shall) cause
to be delivered to the Master Servicer, an Appraisal of any or all
of the
related Mortgaged Properties for purposes of determining whether
the condition
set forth in clause (ii) above has been satisfied, in each case at
the expense
of the related Seller if the scope and cost of the Appraisal is
approved by the
related Seller (such approval not to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such
Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed
above while
the Trustee continues to hold any Crossed Mortgage Loan, the
applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase
Agreement to
forbear from enforcing any remedies against the other's Primary
Collateral but
each is permitted to exercise remedies against the Primary
Collateral securing
its respective Mortgage Loans, including with respect to the
Trustee, the
Primary Collateral securing Mortgage Loans still held by the
Trustee, so long as
such exercise does not impair the ability of the other party to
exercise its
remedies against its Primary Collateral. If the exercise of
remedies by one
party would impair the ability of the other party to exercise its
remedies with
respect to the Primary Collateral securing the Mortgage Loan or
Mortgage Loans
held by such party, then both parties have agreed to forbear from
exercising
such remedies until the loan documents evidencing and securing the
relevant
Mortgage Loans can be modified in a manner that complies with the
applicable
Mortgage Loan Purchase Agreement to remove the threat of impairment
as a result
of the exercise of remedies. Any reserve or other cash collateral
or letters of
credit securing the Crossed Mortgage Loans shall be allocated
between such
Mortgage Loans in accordance with the Mortgage Loan documents, or
otherwise on a
pro rata basis based upon their outstanding Principal Balances. All
other terms
of the Mortgage Loans shall remain in full force and effect,
without any
modification thereof. The Mortgagors set forth on Schedule VIII
hereto are
intended third-party beneficiaries of the provisions set forth in
this paragraph
and the preceding paragraph. The provisions of this paragraph and
the preceding
-77-
paragraph may not be modified with respect to any Mortgage Loan
without the
related Mortgagor's consent.
Any of the following document defects shall be conclusively
presumed
materially and adversely to affect the interests of
Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence
from the
Mortgage File of the original signed Mortgage Note, unless the
Mortgage File
contains a signed lost note affidavit and indemnity that appears to
be regular
on its face; (b) the absence from the Mortgage File of the original
signed
Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy
thereof)
that appears to be regular on its face, unless there is included in
the Mortgage
File a certified copy of the Mortgage by the local authority with
which the
Mortgage was recorded; (c) the absence from the Mortgage File of
the item called
for by paragraph (viii) of the definition of "Mortgage File" (or
with respect to
any Non-Serviced Mortgage Loan, a copy thereof) or (d) the absence
from the
Mortgage File of the item called for by paragraph (xii) of the
definition of
"Mortgage File" (or with respect to any Non-Serviced Mortgage Loan,
a copy
thereof). If any of the foregoing Material Document Defects is
discovered by the
Custodian (or the Trustee if there is no Custodian), the Trustee
(or as set
forth in Section 2.3(a), the Master Servicer) will take the steps
described
elsewhere in this section, including the giving of notices to the
Rating
Agencies, the parties hereto and, to the extent any Material
Document Defect
relates to a Serviced Pari Passu Mortgage Loan, the holder of the
related
Serviced Companion Mortgage Loan, and making demand upon the
related Seller for
the cure of the document defect or repurchase or replacement of the
related
Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise
refuses (i)
to effect a correction or cure of such Material Document Defect or
Material
Breach, (ii) to repurchase the affected Mortgage Loan from the
Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then
provided that
(x) the period of time provided for the related Seller to correct,
repurchase or
cure has expired and (y) the Mortgage Loan is then in default and
is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject
to the
Servicing Standard, modify, workout or foreclose, sell or otherwise
liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to
Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof,
while
pursuing the repurchase claim. The related Seller has acknowledged
and agreed
under the related Mortgage Loan Purchase Agreement that any
modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense
to any
repurchase claim nor shall such modification and workout change the
Purchase
Price due from the related Seller for any repurchase claim. In the
event of any
such modification and workout, the related Seller has agreed under
the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as
modified and
that the Purchase Price shall include any Work-Out Fee paid to the
Special
Servicer up to the date of repurchase plus the present value
(calculated at a
discount rate equal to the applicable Mortgage Rate) of the
Work-Out Fee that
would have been payable to the Special Servicer in respect of such
Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its
Maturity
Date, provided that no amount shall be paid by the related Seller
in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will
comprise) a
portion of the Purchase Price. The related Seller shall be notified
promptly and
in writing by (i) the Trustee of any notice that it receives that
an Option
Holder intends to exercise its Option to purchase the Mortgage Loan
in
accordance with and as described in Section 9.36 hereof and (ii)
the Special
Servicer of any offer that it receives to purchase the applicable
REO Property,
each in connection with such
-78-
liquidation. Upon the receipt of such notice by the related Seller,
the related
Seller shall then have the right to purchase the related Mortgage
Loan or REO
Property, as applicable, from the Trust at a purchase price equal
to, in the
case of clause (i) of the immediately preceding sentence, the
Option Purchase
Price or, in the case of clause (ii) of the immediately preceding
sentence, the
amount of such offer. Notwithstanding anything to the contrary
contained herein
or in the related Mortgage Loan Purchase Agreement, the right of
any Option
Holder to purchase such Mortgage Loan shall be subject and
subordinate to the
Seller's right to purchase such Mortgage Loan as described in the
immediately
preceding sentence. The related Seller shall have five (5) Business
Days to
notify the Trustee or the Special Servicer, as applicable, of its
intent to so
purchase the Mortgage Loan or related REO Property from the date
that it was
notified of such intention to exercise such Option or of such
offer. The Special
Servicer shall be obligated to provide the related Seller with any
appraisal or
other third party reports relating to the Mortgaged Property within
its
possession to enable the related Seller to evaluate the related
Mortgage Loan or
REO Property. Any sale of the related Mortgage Loan, or foreclosure
upon such
Mortgage Loan and sale of the related REO Property, to a Person
other than the
related Seller shall be without (i) recourse of any kind (either
expressed or
implied) by such Person against the related Seller and (ii)
representation or
warranty of any kind (either expressed or implied) by the related
Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to
the sale of
the related REO Property or Mortgage Loan) shall not prejudice any
claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property.
In such an
event, the Master Servicer shall notify the related Seller of the
discovery of
the Material Document Defect or Material Breach and the related
Seller shall
have 90 days to correct or cure such Material Document Defect or
Material Breach
or purchase the REO Property at the Purchase Price. If the related
Seller fails
to correct or cure the Material Document Defect or Material Breach
or purchase
the REO Property, then the provisions above regarding notice of
offers related
to such REO Property and the related Seller's right to purchase
such REO
Property shall apply. After a final liquidation of the Mortgage
Loan or REO
Mortgage Loan, if a court of competent jurisdiction issues a final
order after
the expiration of any applicable appeal period that the related
Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage
Loan (a "Final
Judicial Determination") or the related Seller otherwise accepts
liability,
then, but in no event later than the termination of the Trust
pursuant to
Section 9.30 hereof, the related Seller will be obligated to pay to
the Trust
the difference between any Liquidation Proceeds received upon such
liquidation
(including those arising from any sale to the related Seller) and
the Purchase
Price.
Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or
REO Property
as described in this Section 2.3, the Special Servicer shall not
receive a
Liquidation Fee from the applicable Seller (but may collect such
Liquidation Fee
from the related Liquidation Proceeds as otherwise provided
herein); provided,
however, that in the event the applicable Seller is obligated to
repurchase the
Mortgage Loan or REO Property after a final liquidation of such
Mortgage Loan or
REO Property pursuant to the immediately preceding paragraph, an
amount equal to
any Liquidation Fee (calculated on the basis of Liquidation
Proceeds) payable to
the Special Servicer shall be included in the definition of
"Purchase Price" in
respect of such Mortgage Loan or REO Property. Except as expressly
set forth
above, no Liquidation Fee shall be payable in connection with a
repurchase of a
Mortgage Loan by a Seller.
-79-
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the
aggregate
Principal Balance of all such Qualifying Substitute Mortgage Loans
as of the
date of substitution is less than the aggregate Principal Balance
of all such
Deleted Mortgage Loans (in each case after application of scheduled
principal
portion of the monthly payments received in the month of
substitution). The
Depositor shall cause the related Seller to deposit the amount of
such shortage
into the Certificate Account in the month of substitution, without
any
reimbursement thereof. In addition, the Depositor shall cause the
related Seller
to deposit into the Certificate Account, together with such
shortage, if any, an
amount equal to interest on the Deleted Mortgage Loans at a rate
equal to the
sum of the applicable Mortgage Rate from the Due Date as to which
interest was
last paid up to the Due Date next succeeding such substitution
together with the
amount of unreimbursed Servicing Advances, amounts required to be
paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest
on
unreimbursed Advances with respect to such Deleted Mortgage Loans
at the Advance
Rate. The Depositor shall cause the related Seller, in the case of
the Mortgage
Loans, to give notice in writing (accompanied by an Officer's
Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent
and the
Master Servicer of such event which notice shall be accompanied by
an Officer's
Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to
which funds
in the amount of the Purchase Price are to be wired. Any such
purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the
Master Servicer
and the Special Servicer shall each tender to the related Seller,
upon delivery
to each of them of a receipt executed by such Seller, all portions
of the
Mortgage File and other documents pertaining to such Mortgage Loan
possessed by
it, and each document that constitutes a part of the Mortgage File
shall be
endorsed or assigned to the extent necessary or appropriate to the
related
Seller or its designee in the same manner, and pursuant to
appropriate forms of
assignment, substantially similar to the manner and forms pursuant
to which
documents were previously assigned to the Trustee, but in any
event, without
recourse, representation or warranty; provided that such tender by
the Trustee
shall be conditioned upon its receipt from the Master Servicer of a
Request for
Release. The Master Servicer shall, and is hereby authorized and
empowered by
the Trustee to, prepare, execute and deliver in its own name, on
behalf of the
Certificateholders and the Trustee or any of them, the endorsements
and
assignments contemplated by this Section 2.3, and the Trustee shall
execute and
deliver any powers of attorney necessary to permit the Master
Servicer to do so.
The Master Servicer shall, and is also hereby authorized and
empowered by the
Trustee to, reconvey to the related Seller any deposits then held
in an Escrow
Account relating to the Mortgage Loan being repurchased or
substituted for. The
Master Servicer shall indemnify the Trustee for all costs,
liabilities and
expenses (including attorneys' fees) incurred by the Trustee in
connection with
any negligent or intentional misuse of any such powers of attorney
by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of
the
Certificateholders, respecting any Material Document Defect or
Material Breach.
The parties hereunder understand that (i)
-80-
Principal, as Seller under Mortgage Loan Purchase Agreement III,
will be
providing the remedies with respect to the Principal Loans, (ii)
UCMFI, as
Seller under Mortgage Loan Purchase Agreement II, will be providing
the remedies
with respect to the USCMI Loans, (iii) LaSalle, as Seller under
Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect
to the LaSalle
Loans and (iv) MSMC, as Seller under Mortgage Loan Purchase
Agreement IV, will
be providing the remedies with respect to the MSMC Loans.
(d) The Trustee or its designee (which, with the Master Servicer's
consent, may be the Master Servicer or which, with the Special
Servicer's
consent, may be the Special Servicer) shall enforce the provisions
of this
Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special
Servicer, the
Trustee (in its capacity as Trustee of the Trust) and the Paying
Agent as of the
Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and
existence and has
full corporate power and authority to own its property, to carry on
its business
as presently conducted, to enter into and perform its obligations
under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have
been duly authorized by all necessary corporate action on the part
of the
Depositor; neither the execution and delivery of this Agreement,
nor the
consummation of the transactions herein contemplated, nor
compliance with the
provisions hereof, will conflict with or result in a breach of, or
constitute a
default under, (i) any of the provisions of any law, governmental
rule,
regulation, judgment, decree or order binding on the Depositor or
its
properties; (ii) the certificate of incorporation or bylaws of the
Depositor; or
(iii) the terms of any indenture or other agreement or instrument
to which the
Depositor is a party or by which it is bound; neither the Depositor
nor any of
its Affiliates is a party to, bound by, or in breach of or
violation of any
indenture or other agreement or instrument, or subject to or in
violation of any
statute, order or regulation of any court, regulatory body,
administrative
agency or governmental body having jurisdiction over it, which
materially and
adversely affects or to the best knowledge of the Depositor may in
the future
materially and adversely affect (i) the ability of the Depositor to
perform its
obligations under this Agreement or (ii) the business, operations,
financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of
this
Agreement and the consummation of the transactions contemplated
hereby do not
require the consent or approval of, the giving of notice to, the
registration
with, or the taking of any other action in respect of, any state,
federal or
other governmental authority or agency, except such as has been
obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery
by the
Trustee, constitutes a valid and binding obligation of the
Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best
of the Depositor's knowledge, threatened or likely to be asserted
against or
affecting the Depositor,
-81-
before or by any court, administrative agency, arbitrator or
governmental body
(A) with respect to any of the transactions contemplated by this
Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will
be determined adversely to the Depositor and will, if determined
adversely to
the Depositor, materially and adversely affect it or its business,
assets,
operations or condition, financial or otherwise, or adversely
affect its ability
to perform its obligations under this Agreement; and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and
was the sole
owner of each Mortgage Loan free and clear of any and all adverse
claims,
charges or security interests (including liens arising under the
federal tax
laws or the Employee Retirement Income Security Act of 1974, as
amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing
Date,
the Depositor does hereby transfer, assign, set over, deposit with
and otherwise
convey to the Trustee, without recourse, in trust, all the right,
title and
interest of the Depositor in and to (i) the REMIC I Regular
Interests in
exchange for the REMIC II Certificates, (ii) the REMIC II Regular
Interests in
exchange for the REMIC III Certificates (other than the portion of
the Class S
Certificates representing the right to Excess Interest) and (iii)
the right to
receive Excess Interest in exchange for the Class S Grantor Trust
Interest.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE
LOANS.
(a) Notwithstanding anything to the contrary in this Agreement,
with
respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan,
each of the
document delivery requirements set forth herein will be satisfied
by the
delivery by the applicable Seller of copies of each such document
specified
herein (other than the Mortgage Note (and all intervening
endorsements)
evidencing the Mortgage Loan, with respect to which the originals
shall be
required); provided, the document delivery requirements for the
Assignment of
Mortgage, any assignment of Assignment of Leases and any UCC-2 or
UCC-3
financing statement set forth herein will be satisfied by the
delivery by the
applicable Seller of copies of such documents made in favor of the
trustee of
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached
hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the
respective master
servicer, special servicer and trustee for the related Non-Serviced
Mortgage
Loan Pooling and Servicing Agreement and the other holders of the
related
Non-Serviced Companion Loans, each stating that, among other
things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the
Closing Date.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth
in
the Exhibits attached hereto, with such appropriate insertions,
omissions,
substitutions and other variations as
-82-
are required or permitted by this Agreement or as may in the
reasonable judgment
of the Paying Agent or the Depositor be necessary, appropriate or
convenient to
comply, or facilitate compliance, with applicable laws, and may
have such
letters, numbers or other marks of identification and such legends
or
endorsements placed thereon as may be required to comply with the
rules of any
securities exchange on which any of the Certificates may be listed,
or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these
methods or may
be produced in any other manner permitted by the rules of any
securities
exchange on which any of the Certificates may be listed, all as
determined by
the officers executing such Certificates, as evidenced by their
execution
thereof.
(b) The Class A Senior Certificates, the Class A-M Certificates and
the Class A-J Certificates will be issuable in denominations of
$25,000 initial
Certificate Balance and in any whole dollar denomination in excess
thereof. The
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates
will be issuable in denominations of $100,000 initial Certificate
Balance or
initial Notional Amount (as applicable) or in any whole dollar
denomination in
excess thereof. The Class X Certificates will be issuable in
denominations of
$100,000 initial Notional Amount or in any whole dollar
denomination in excess
thereof. The Class R-I, Class R-II and Class R-III Certificates
will be issued
in minimum Percentage Interests of 10% and integral multiples of
10% in excess
thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent
upon the
order of the Depositor. No Certificate shall be entitled to any
benefit under
this Agreement, or be valid for any purpose, unless there appears
on such
Certificate a certificate of authentication substantially in the
form provided
for herein, executed by an authorized officer of the Authenticating
Agent by
manual signature, and such certification upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate
has been duly
authenticated and delivered hereunder. All Certificates shall be
dated the date
of their authentication. At any time and from time to time after
the execution
and delivery of this Agreement, the Depositor may deliver
Certificates to the
Authenticating Agent for authentication and the Authenticating
Agent shall
authenticate and deliver such Certificates as in this Agreement
provided and not
otherwise. In the event that additional Certificates need to be
prepared at any
time subsequent to the Closing Date, the Depositor shall prepare,
or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's
expense, any
such additional Certificates. With respect to the Class A Senior,
Class A-M,
Class X, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and
Class S Certificates that are issued in book-entry form, on the
Closing Date,
the Authenticating Agent upon the order of the Depositor shall
authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as
provided in Section 3.7 against payment of the purchase price
thereof. With
respect to the Class L, Class M, Class N, Class O, Class P, Class Q
and Class S
Certificates that are issued in definitive form, on the Closing
Date, the
Authenticating Agent upon the order of the Depositor shall
authenticate
Definitive Certificates that are issued to the registered holder
thereof against
payment of the purchase price thereof.
-83-
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the
Certificate
Registrar shall maintain books for the registration and for the
transfer of
Certificates (the "Certificate Register"). The Certificate
Registrar may resign
or be discharged or removed by the Paying Agent or the
Certificateholders, and a
new successor may be appointed, in accordance with the procedures
and
requirements set forth in Sections 7.6 and 7.7 hereof with respect
to the
resignation, discharge or removal of the Paying Agent and the
appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a
written
instrument delivered to the Holders and the Trustee, any trust
company to act as
co-registrar under such conditions as the Certificate Registrar may
prescribe;
provided that the Certificate Registrar shall not be relieved of
any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only
upon
presentation and surrender of such Certificate at the Corporate
Trust Office,
duly endorsed or accompanied by a written instrument of transfer
duly executed
by such Holder or such Holder's duly authorized attorney in such
form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of
any
Certificate in accordance with the preceding sentence, and subject
to the
restrictions set forth in the other subsections of this Section
3.3, the
Certificate Registrar shall execute, and the Authenticating Agent
shall
authenticate and deliver to the transferee, one or more new
Certificates of the
same Class and evidencing, in the aggregate, the same aggregate
initial
Certificate Balance, initial Notional Amount or Percentage
Interest, as the case
may be, as the Certificate being transferred. No service charge
shall be made to
a Certificateholder for any registration of transfer of
Certificates, but the
Certificate Registrar may require payment of a sum sufficient to
cover any tax
or governmental charge that may be imposed in connection with any
registration
or transfer of Certificates. The Certificate Registrar may decline
to accept any
request for a registration of transfer of any Certificate during
the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized
denominations,
representing in the aggregate the same initial Certificate Balance,
initial
Notional Amount or Percentage Interest, as the case may be, as the
Certificate
surrendered, upon surrender of the Certificate to be exchanged at
the offices of
the Certificate Registrar duly endorsed or accompanied by a written
instrument
of exchange duly executed by such Holder or such Holder's duly
authorized
attorney in such form as is satisfactory to the Certificate
Registrar.
Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and
privileges, as the
Certificates surrendered. No service charge shall be made to a
Certificateholder
for any exchange of Certificates, but the Certificate Registrar may
require
payment of a sum sufficient to cover any tax or governmental charge
that may be
imposed in connection with any exchange of Certificates. Whenever
any
Certificates are so surrendered for exchange, the Certificate
Registrar shall
execute and the Authenticating Agent shall authenticate, date and
deliver the
Certificates which the Certificateholder making the exchange is
entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless
such
transfer, sale, pledge or other disposition is exempt from the
registration
and/or qualification requirements of the Securities Act and any
-84-
applicable state securities laws, or is otherwise made in
accordance with the
Securities Act and such state securities laws. If a transfer of any
Non-Registered Certificate held as a Definitive Certificate is to
be made
without registration under the Securities Act (other than in
connection with the
initial issuance of the Certificates or a transfer of such
Non-Registered
Certificate by the Depositor or one of its Affiliates), then the
Certificate
Registrar shall refuse to register such transfer unless it receives
(and upon
receipt, may conclusively rely upon) either: (i) a certificate from
the
Certificateholder desiring to effect such transfer substantially in
the form
attached as Exhibit D-1 hereto and a certificate from such
Certificateholder's
prospective Transferee substantially in the form attached either as
Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel
satisfactory to
the Certificate Registrar to the effect that such transfer shall be
made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of
Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust
or of the
Depositor, the Master Servicer, the Special Servicer, the Paying
Agent, the
Trustee or the Certificate Registrar in their respective capacities
as such). If
a transfer of any interest in a Non-Registered Certificate that
constitutes a
Book-Entry Certificate is to be made without registration under the
Securities
Act (other than in connection with the initial issuance of the
Certificates or a
transfer of any interest in such Non-Registered Certificate by the
Depositor or
any of its Affiliates), then the Certificate Owner desiring to
effect such
transfer shall be required to obtain either (i) a certificate from
such
Certificate Owner's prospective Transferee substantially in the
form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion
of Counsel to
the effect that such transfer may be made without registration
under the
Securities Act. None of the Depositor, the Paying Agent, the
Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar is
obligated to
register or qualify any Class of Non-Registered Certificates under
the
Securities Act or any other securities law or to take any action
not otherwise
required under this Agreement to permit the transfer of any
Certificate. Any
Certificateholder or Certificate Owner desiring to effect a
transfer of
Non-Registered Certificates or interests therein shall, and does
hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, the
Master Servicer,
the Special Servicer, the Paying Agent and the Certificate
Registrar against any
liability that may result if the transfer is not exempt from such
registration
or qualification or is not made in accordance with such federal and
state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any
employee benefit
plan or other retirement arrangement, including individual
retirement accounts
and annuities, Keogh plans and collective investment funds and
separate accounts
in which such plans, accounts or arrangements are invested,
including, without
limitation, insurance company general accounts, that is subject to
Title I of
ERISA or Section 4975 of the Code or any applicable federal, state
or local law
("Similar Laws") materially similar to the foregoing provisions of
ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional
Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to
any Person
who is directly or indirectly purchasing such Certificate or
interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan
assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate
that
constitutes a Book-Entry Certificate and is being sold to a
Qualified
Institutional Buyer, the purchase and holding of such Certificate
or interest
therein qualifies for the exemptive relief available under Sections
I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a
Definitive
-85-
Certificate, the prospective Transferee provides the Certificate
Registrar with
a certification of facts and an Opinion of Counsel which establish
to the
satisfaction of the Certificate Registrar that such transfer will
not constitute
or result in a non-exempt prohibited transaction under Section 406
of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the
Paying
Agent, the Master Servicer, the Special Servicer or the Certificate
Registrar to
any obligation in addition to those undertaken in this Agreement.
Each Person
who acquires any Non-Investment Grade Certificate or Residual
Certificate or
interest therein (unless it shall have acquired such Certificate or
interest
therein from the Depositor or an Affiliate thereof or unless, in
the case of a
Non-Investment Grade Certificate, it shall have delivered to the
Certificate
Registrar the certification of facts and Opinion of Counsel
referred to in
clause (ii) of the preceding sentence) shall be required to deliver
to the
Certificate Registrar (or, in the case of an interest in a
Non-Investment Grade
Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner
that is transferring such interest) a certification to the effect
that: (i) it
is neither a Plan nor any Person who is directly or indirectly
purchasing such
Certificate or interest therein on behalf of, as named fiduciary
of, as trustee
of, or with "plan assets" of a Plan; or (ii) that, in the case of a
Non-Investment Grade Certificate, the purchase and holding of such
Certificate
or interest therein by such person qualifies for the exemptive
relief available
under Sections I and III of PTCE 95-60 or another exemption from
the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor or
similar
exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or
acquisition of such
Ownership Interest to have agreed to be bound by the following
provisions and to
have irrevocably authorized the Paying Agent under clause (F) below
to deliver
payments to a Person other than such Person and to have irrevocably
authorized
the Certificate Registrar under clause (G) below to negotiate the
terms of any
mandatory sale and to execute all instruments of Transfer and to do
all other
things necessary in connection with any such sale. The rights of
such person
acquiring any Ownership Interest in a Residual Certificate are
expressly subject
to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and a
United
States Tax Person and shall promptly notify the Certificate
Registrar
of any change or impending change in its status as a Permitted
Transferee and (2) each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Qualified
Institutional
Buyer and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Qualified
Institutional
Buyer.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto
as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the
proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that
such
Transferee is a Permitted Transferee, that it is a Qualified
Institutional Buyer, that it is not acquiring its Ownership
Interest
in the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not
a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a
-86-
Residual Certificate, it will endeavor to remain a Permitted
Transferee, that it is a United States Tax Person, that if such
Transferee is a partnership, trust or disregarded entity for U.S.
federal income tax purposes, then each Person that may be allocated
income from a Residual Certificate is a United States Tax Person,
that
it is not a foreign permanent establishment or fixed base, within
the
meaning of any applicable income tax treaty, of any United States
Tax
Person, that it has historically paid its debts as they have come
due
and will continue to do so in the future, that it understands that
its
tax liability with respect to the Residual Certificates may exceed
cash flows thereon and it intends to pay such taxes as they come
due,
that it will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent
establishment
or fixed base, within the meaning of any applicable income tax
treaty,
of such proposed Transferee or any other United States Tax Person,
that it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13
of
such Transfer Affidavit and Agreement are true or that Section 13
is
not applicable, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States
Tax
Person, no Transfer of an Ownership Interest in a Residual
Certificate
to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer
Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate
Registrar a
certificate substantially in the form attached hereto as Exhibit
E-2
among other things stating that (x) it has conducted a reasonable
investigation of the financial condition of the proposed Transferee
and, as a result of the investigation, the Transferor determines
that
the proposed Transferee had historically paid its debts as they
came
due and found no significant evidence that the proposed Transferee
will not continue to pay its debts as they come due in the future
and,
(y) it has no actual knowledge that such prospective Transferee is
not
a Permitted Transferee, is not a United States Tax Person, is a
foreign permanent establishment or fixed base, within the meaning
of
any applicable income tax treaty, of any United States Tax Person
or
is a Person with respect to which income on the Residual
Certificate
is attributable to a foreign permanent establishment or fixed base,
within the meaning of any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder"
within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a
Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to
give
-87-
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person,
then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration
of such Transfer of such Residual Certificate. None of the Trustee,
the Master Servicer, the Special Servicer, the Certificate
Registrar
or the Paying Agent shall be under any liability to any Person for
any
registration of Transfer of a Residual Certificate that is in fact
not
permitted by this Section 3.3(e) or for making any payments due on
such Certificate to the Holder thereof or for taking any other
action
with respect to such Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, and
to
the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Paying Agent shall have the right, without
notice to the Holder or any prior Holder of such Residual
Certificate,
but not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Paying Agent on such
terms
as the Paying Agent may choose. Such noncomplying Holder shall
promptly endorse and deliver such Residual Certificate in
accordance
with the instructions of the Certificate Registrar. Such purchaser
may
be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate
Registrar or its Affiliates), expenses and taxes due, if any, will
be
remitted by the Certificate Registrar to such noncomplying Holder.
The
terms and conditions of any sale under this clause (G) shall be
determined in the sole discretion of the Certificate Registrar, and
the Certificate Registrar shall not be liable to any Person having
an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make
available, upon
written request from the Paying Agent, to the Internal Revenue
Service and those
Persons specified by the REMIC Provisions, all information
necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a
Residual Certificate to any Person who is not a Permitted
Transferee, including
the information described in Treasury Regulations Sections
1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such
Residual
Certificate and (B) as a result of any regulated investment
company, real estate
investment trust, common trust fund, partnership, trust, estate or
organization
described in Section 1381 of the Code that holds an Ownership
Interest in a
Residual Certificate having as among its record holders at any time
any Person
which is not a Permitted Transferee. The Person holding such
Ownership Interest
