EXHIBIT 4
BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Master Servicer,
Lennar Partners, Inc.,
Special Servicer,
and
WELLS FARGO BANK, N.A.,
Trustee and REMIC Administrator,
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2004
$1,362,129,068
Commercial Mortgage Pass-Through Certificates
Series 2004-5
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE
MORTGAGE POOL AND THE CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of the Component Mortgage Loan REMIC and
REMIC I by Trustee..........................................
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08 Execution, Authentication and Delivery of Class CS
Certificates and Class RP Certificates; Creation of
Component Mortgage Loan REMIC Regular Interests and
Component Mortgage Loan REMIC Residual Interest.............
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance of the REMIC II Certificates........................
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans..................................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts....
Section 3.04 Certificate Account, Distribution Account, Component
Mortgage Loan REMIC Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Liquidation Proceeds Account and Loan Pair
Custodial Account...........................................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Loan Pair Custodial Accounts
and the Excess Liquidation Proceeds Account.................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Component Mortgage Loan
REMIC Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account, the Interest Reserve
Account and the REO Account.................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Mortgage Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class..................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
Section 3.28 Matters Regarding the Loan Pairs and the Bank of America
Center Whole Loan...........................................
Section 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor...........................................
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest Reserve Account.....................................
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certification by Certificate Owners..........................
Section 5.07 Regarding the Identification of Certain Certificateholders...
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ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLERS, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE GECC PRIMARY SERVICER AND THE REMIC ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer, the GECC Primary Servicer and the
REMIC Administrator.........................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer, the GECC Primary
Servicer or the REMIC Administrator.........................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the GECC Primary
Servicer, the REMIC Administrator and Others................
Section 6.04 Master Servicer, Special Servicer, the GECC Primary
Servicer and REMIC Administrator Not to Resign..............
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees of Trustee; Indemnification of Trustee..................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Filings with the Securities and Exchange Commission..........
Section 8.14 [Reserved]...................................................
Section 8.15 Maintenance of Mortgage File.................................
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ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Depositor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator.......................
Section 10.03 Fees of the REMIC Administrator..............................
Section 10.04 Use of Agents................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Successors and Assigns; Beneficiaries........................
Section 11.08 Article and Section Headings.................................
Section 11.09 Notices to and from Rating Agencies..........................
Section 11.10 Requests for Information; Standing Requests..................
Section 11.11 Acknowledgement by the GECC Primary Servicer.................
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-AB Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-1A Certificate
EXHIBIT A-7 Form of Class A-J Certificate
EXHIBIT A-8 Form of Class XC Certificate
EXHIBIT A-9 Form of Class XP Certificate
EXHIBIT A-10 Form of Class B Certificate
EXHIBIT A-11 Form of Class C Certificate
EXHIBIT A-12 Form of Class D Certificate
EXHIBIT A-13 Form of Class E Certificate
EXHIBIT A-14 Form of Class F Certificate
EXHIBIT A-15 Form of Class G Certificate
EXHIBIT A-16 Form of Class H Certificate
EXHIBIT A-17 Form of Class J Certificate
EXHIBIT A-18 Form of Class K Certificate
EXHIBIT A-19 Form of Class L Certificate
EXHIBIT A-20 Form of Class M Certificate
EXHIBIT A-21 Form of Class N Certificate
EXHIBIT A-22 Form of Class O Certificate
EXHIBIT A-23 Form of Class P Certificate
EXHIBIT A-24 Form of Class CS Certificate
EXHIBIT A-25 Form of Class RP-1, Class RP-2, Class RP-3 and Class RP-4
Certificate
EXHIBIT A-26 Form of Class R-I Certificate
EXHIBIT A-27 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Trustee Distribution Date Statement
EXHIBIT H Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV Class XP Reference Rates
SCHEDULE V CS Controlling Holder, RP Controlling Holder and Operating
Advisors Schedule
SCHEDULE VI Mortgage Loans that Initially Pay Interest Only
SCHEDULE VII Mortgage Loans Containing Additional Debt
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This Pooling and Servicing Agreement (this "Agreement"), dated and
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effective as of November 1, 2004, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, N.A., as Master Servicer, Lennar
Partners, Inc., as Special Servicer, and WELLS FARGO BANK, N.A., as Trustee and
as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that three segregated
pools of assets within the Trust Fund be treated for federal income tax purposes
as three separate real estate mortgage investment conduits (the "Component
Mortgage Loan REMIC", "REMIC I" and "REMIC II", respectively).
Component Mortgage Loan REMIC
The Trustee will elect to treat the segregated pool of assets
consisting of the CS Component Mortgage Loan and the RP Component Mortgage Loan
and certain other related assets subject to this Agreement as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as the "Component Mortgage Loan REMIC". The Component Mortgage Loan
REMIC Residual Interest will represent the sole class of "residual interests" in
the Component Mortgage Loan REMIC for purposes of the REMIC Provisions under
federal income tax law, and will be represented by the Class R-I Certificates.
The Component Mortgage Loan REMIC Regular Interests will consist of the
Component Mortgage Loan REMIC Senior Regular Interests and the Component
Mortgage Loan REMIC Subordinate Regular Interests. The Component Mortgage Loan
REMIC Senior Regular Interests will not be certificated and will be held by
REMIC I. The Class CS Certificates and each Class of Class RP Certificates, as
applicable, will each represent a Component Mortgage Loan REMIC Subordinate
Regular Interest. The following table sets forth the initial Class CS Senior
Balance and Class RP Senior Balance and the corresponding Component Mortgage
Loan REMIC Senior Regular Interests:
Initial Component Corresponding Component Mortgage
Component Mortgage Mortgage Loan Senior Loan REMIC
Loan Balance Senior Regular Interest
------------------ -------------------- ---------------------------------
CS Component CS Component Mortgage Loan REMIC
Mortgage Loan $77,000,000 Senior Regular Interest
RP Component RP Component Mortgage Loan REMIC
Mortgage Loan $52,000,000 Senior Regular Interest
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The following table sets forth the initial CS Component Mortgage
Loan Subordinate Balance and the Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interest:
Corresponding Component Mortgage
Initial CS Component Mortgage Loan REMIC
Loan Subordinate Balance Subordinate Regular Interest
------------------------ ----------------------------
$5,500,000 Class CS Certificates
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The following table sets forth the initial RP Component Mortgage
Loan Subordinate Balances and the Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interests:
Corresponding Component Mortgage
Initial RP Component Mortgage Loan REMIC
Loan Subordinate Balances Subordinate Regular Interests
------------------------- -----------------------------
$5,029,000 Class RP-1 Certificates
$3,770,000 Class RP-2 Certificates
$2,828,000 Class RP-3 Certificates
$2,373,000 Class RP-4 Certificates
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REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Majority Mortgage Loans, the Component Mortgage
Loan REMIC Senior Regular Interests and certain other related assets subject to
this Agreement shall be treated as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC I". The REMIC I Regular
Interests listed below under the heading "Corresponding REMIC I Regular
Interests" constitute "regular interests" in REMIC I and the Class R-I
Certificates constitute the sole Class of "residual interests" in REMIC I
created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), and the Corresponding Components of the Class X Certificates for
each Class of the REMIC II Certificates (the "Corresponding Certificates"):
Corresponding Corresponding
Corresponding REMIC I Regular REMIC I Components of Class
Certificates Interests (1) Principal Balance X Certificates (1)
------------- -------------- ----------------- -------------------
Class A-1 LA-1-1 $2,553,000 XA-1-1
LA-1-2 $3,168,000 XA-1-2
LA-1-3 $23,109,000 XA-1-3
LA-1-4 $26,634,000 XA-1-4
LA-1-5 $2,136,000 XA-1-5
Class A-2 LA-2-1 $24,901,000 XA-2-1
LA-2-2 $26,194,000 XA-2-2
LA-2-3 $25,851,000 XA-2-3
LA-2-4 $25,167,000 XA-2-4
LA-2-5 $49,282,000 XA-2-5
LA-2-6 $99,515,000 XA-2-6
Class A-3 LA-3-1 $104,955,000 XA-3-1
LA-3-2 $12,390,000 XA-3-2
LA-3-3 $10,928,000 XA-3-3
LA-3-4 $71,027,000 XA-3-4
LA-3-5 $106,077,000 XA-3-5
Class A-AB LA-AB-1 $601,000 XA-AB-1
LA-AB-2 $5,452,000 XA-AB-2
LA-AB-3 $6,279,000 XA-AB-3
LA-AB-4 $6,562,000 XA-AB-4
LA-AB-5 $26,646,000 XA-AB-5
Class A-4 LA-4-1 $44,674,000 XA-4-1
LA-4-2 $143,993,000 XA-4-2
Class A-1A LA-1A-1 $631,000 XA-1A-1
LA-1A-2 $867,000 XA-1A-2
LA-1A-3 $5,039,000 XA-1A-3
LA-1A-4 $5,707,000 XA-1A-4
LA-1A-5 $5,665,000 XA-1A-5
LA-1A-6 $5,481,000 XA-1A-6
LA-1A-7 $5,320,000 XA-1A-7
LA-1A-8 $5,166,000 XA-1A-8
LA-1A-9 $22,297,000 XA-1A-9
LA-1A-10 $95,925,000 XA-1A-10
LA-1A-11 $2,635,000 XA-1A-11
LA-1A-12 $2,314,000 XA-1A-12
LA-1A-13 $2,258,000 XA-1A-13
LA-1A-14 $9,559,000 XA-1A-14
LA-1A-15 $72,745,000 XA-1A-15
Class A-J LA-J $90,241,000 XA-J
Class B LB $39,161,000 XB
Class C LC $13,621,000 XC
Class D LD $22,135,000 XD
Class E LE-1 $4,771,000 XE-1
LE-2 $5,361,000 XE-2
LE-3 $1,787,000 XE-3
Class F LF-1 $2,882,000 XF-1
LF-2 $6,664,000 XF-2
LF-3 $6,249,000 XF-3
LF-4 $1,231,000 XF-4
Class G LG-1 $5,642,000 XG-1
LG-2 $6,277,000 XG-2
Class H LH-1 $8,527,000 XH-1
LH-2 $9,817,000 XH-2
LH-3 $3,790,000 XH-3
Class J LJ-1 $5,151,000 XJ-1
LJ-2 $1,660,000 XJ-2
Class K LK-1 $1,396,000 XK-1
LK-2 $5,415,000 XK-2
Class L LL $3,405,000 XL
Class M LM $5,108,000 XM
Class N LN $3,405,000 XN
Class O LO $3,406,000 XO
Class P LP $15,324,068 XP
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(1) The REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class of
REMIC II Regular Certificates also correspond to each other and,
accordingly, constitute the (i) "Corresponding REMIC I Regular Interests"
and (ii) "Corresponding Components", respectively, with respect to each
other.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II." The Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-J, Class XC,
Class XP, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates will
constitute "regular interests" in REMIC II, and the Class R-II Certificates will
constitute the sole Class of "residual interests" in REMIC II for purposes of
the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate, and the Initial Class Principal Balance for each of
the Classes of REMIC II Regular Certificates, which are issued by REMIC II and
for the Class CS Certificates and the Class RP Certificates, which are issued by
the Component Mortgage Loan REMIC:
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
----------- ------------------- -----------------
Class A-1 3.8120% per annum $57,600,000
Class A-2 4.1760% per annum $250,910,000
Class A-3 4.5610% per annum $305,377,000
Class A-AB 4.6730% per annum $45,540,000
Class A-4 4.9360% per annum(1) $188,667,000
Class A-1A 4.5420% per annum $241,609,000
Class A-J 4.9920% per annum(1) $90,241,000
Class B 5.0580% per annum(1) $39,161,000
Class C 5.0990% per annum(1) $13,621,000
Class D 5.1580% per annum(1) $22,135,000
Class E 5.2420% per annum(1) $11,919,000
Class F 5.1198% per annum(2) $17,026,000
Class G 5.2188% per annum(2) $11,919,000
Class H 5.3178% per annum(2) $22,134,000
Class J 4.7180% per annum(1) $6,811,000
Class K 4.7180% per annum(1) $6,811,000
Class L 4.7180% per annum(1) $3,405,000
Class M 4.7180% per annum(1) $5,108,000
Class N 4.7180% per annum(1) $3,405,000
Class O 4.7180% per annum(1) $3,406,000
Class P 4.7180% per annum(1) $15,324,068
Class XC Variable(3) $1,362,129,068(4)
Class XP Variable(3) $1,331,702,000(4)
Class CS 4.995% per annum(5) $5,500,000
Class RP-1 4.398% per annum(5) $5,029,000
Class RP-2 4.575% per annum(5) $3,770,000
Class RP-3 4.624% per annum(5) $2,828,000
Class RP-4 5.016% per annum(5) $2,373,000
------------
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(1) Initial Pass-Through Rate. The Pass-Through Rates for the Class A-4, Class
A-J, Class B, Class C, Class D and Class E Certificates will be per annum
rates equal to 4.9360%, 4.9920%, 5.0580%, 5.0990%, 5.1580% and 5.2420%,
respectively, subject to a cap equal to the Weighted Average Net Mortgage
Rate. The Pass-Through Rate for the Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates will accrue interest at a fixed
per annum rate equal to 4.7180%, subject to a cap at the Weighted Average
Net Mortgage Rate.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class F
Certificates is a per annum rate equal to the Weighted Average Net
Mortgage Rate less 0.198%. The Pass-Through Rate for the Class G
Certificates is a per annum rate equal to the Weighted Average Net
Mortgage Rate less 0.099%. The Pass-Through Rate for the Class H
Certificates is a per annum rate equal to the Weighted Average Net
Mortgage Rate.
(3) The Pass-Through Rates for each of the Class XC and Class XP Certificates
will be calculated in accordance with the definitions of "Class XC
Pass-Through Rate" and "Class XP Pass-Through Rate", as applicable.
(4) The Class XC and Class XP Certificates will not have a Class Principal
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class XC Notional Amount or Class XP
Notional Amount, as applicable.
(5) The rates set forth in the "Pass-Through Rate" column for the Class CS
Certificates and each Class of Class RP Certificates are expressed on the
basis of a 360-day year and the actual number of days elapsed in the
relevant month of accrual. For purposes of calculating the Pass-Through
Rate of the Class CS Certificates and each Class of Class RP Certificates
for each Interest Accrual Period, each Pass-Through Rate will be converted
to the annualized rate of interest at which interest would have to accrue
on the Certificate Balance of each such Class of Certificates (on a basis
of a 360-day year, consisting of twelve 30-day months) to produce the
aggregate amount of interest which actually accrues on each such Class of
Certificates for such Interest Accrual Period at the respective rates set
forth in the "Pass-Through Rate" column.
The Class R-I and Class R-II Certificates will bear no Pass-Through
Rate and will have no initial Certificate Principal Balances or notional
amounts. Any Available Distribution Amount (i) remaining in the Component
Mortgage Loan REMIC Distribution Account after the distribution of all amounts
distributable in respect of the Component Mortgage Loan REMIC Regular Interests
and (ii) remaining in the REMIC I Distribution Account after the distribution of
all amounts distributable in respect of the REMIC I Regular Interests shall be
distributed to the Holders of the Class R-I Certificates (but only to the extent
of (i) the CS Component Mortgage Loan Available Distribution Amount and the RP
Component Mortgage Loan Available Distribution Amount for such Distribution
Date, if any, remaining in the Component Mortgage Loan REMIC Distribution
Account or (ii) the Available Distribution Amount for such Distribution Date, if
any, remaining in the REMIC I Distribution Account, as applicable). Any
Available Distribution Amount remaining in the REMIC II Distribution Account
after distributions to the Holders of the REMIC II Regular Certificates shall be
distributed to the Holders of the Class R-II Certificates (but only to the
extent of the Available Distribution Amount for such Distribution Date, if any,
remaining in the REMIC II Distribution Account).
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"A/B Loans": The ICG Portfolio A/B Loan and the Summit Place
Apartments A/B Loan.
"Accrued Certificate Interest": With respect to the Class CS
Certificates, any Class of Class RP Certificates and any Class of REMIC II
Regular Certificates, for any Distribution Date, one month's interest
(calculated on a 30/360 basis) at the Pass-Through Rate applicable to such Class
of Certificates for such Distribution Date, accrued on the related Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date and, with respect to the Class XC and Class XP
Certificates for any Distribution Date, the sum of the Accrued Component
Interest for the related Interest Accrual Period for all of their respective
Components for such Distribution Date. For the avoidance of doubt, the Accrued
Certificate Interest in respect of the Class CS Certificates, any Class of Class
RP Certificates and any Class of REMIC II Regular Certificates for any
Distribution Date shall be deemed to have accrued during the applicable Interest
Accrual Period.
"Accrued Component Interest": With respect to each Component of the
Class XC or Class XP Certificates for any Distribution Date, one month's
interest at the Class XC Strip Rate or Class XP Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated as described in the definitions
of Class XC Strip Rate or Class XP Strip Rate with respect to any applicable
Component and any Distribution Date, and shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued CS Component Mortgage Loan Senior Component Interest": With
respect to the CS Component Mortgage Loan Senior Component for any Distribution
Date, one month's interest at the Adjusted Net Mortgage Rate applicable to the
CS Component Mortgage Loan Senior Component for such Distribution Date, accrued
on the CS Component Mortgage Loan Senior Balance of the CS Component Mortgage
Loan Senior Component outstanding immediately prior to such Distribution Date.
For the avoidance of doubt, the Accrued CS Component Mortgage Loan Senior
Component Interest in respect of the CS Component Mortgage Loan Senior Component
for any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Accrued RP Component Mortgage Loan Senior Component Interest": With
respect to the RP Component Mortgage Loan Senior Component for any Distribution
Date, one month's interest at the Adjusted Net Mortgage Rate applicable to the
RP Component Mortgage Loan Senior Component for such Distribution Date, accrued
on the RP Component Mortgage Loan Senior Balance of the RP Component Mortgage
Loan Senior Component outstanding immediately prior to such Distribution Date.
For the avoidance of doubt, the Accrued RP Component Mortgage Loan Senior
Component Interest in respect of the RP Component Mortgage Loan Senior Component
for any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Exclusions": Exclusions relating to terrorist or similar
acts in addition to those customarily found in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Sequential Pay Certificates receiving less than the full amount of principal
and/or interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or REO Loan
or the CS Component Mortgage Loan Senior Component or RP Component Mortgage Loan
Senior Component, for any Distribution Date, the annualized rate at which
interest would have to accrue thereon on a 30/360 Basis during the most recently
ended calendar month to produce the actual amount of interest accrued (or, if
such Loan, REO Loan or Component Mortgage Loan Senior Component, as the case may
be, is prepaid, in whole or in part, or otherwise liquidated during such
calendar month, that otherwise would have accrued) in respect of such Loan, REO
Loan or Component Mortgage Loan Senior Component, as the case may be, at the
related Net Mortgage Rate in effect for such Loan, REO Loan or Component
Mortgage Loan Senior Component during such calendar month. Such rate shall be
calculated by multiplying (i) the Net Mortgage Rate by (ii) the actual number of
days of accrued interest for the related period for such Loan or REO Loan or
Component Mortgage Loan Senior Component, divided by 30; provided, however, that
with respect to such Loan, REO Loan or Component Mortgage Loan Senior Component,
the Adjusted Net Mortgage Rate for the one-month period (a) prior to the Due
Dates in January and February in any year that is not a leap year or in February
in any year that is a leap year will be the per annum rate stated in the related
Mortgage Note (or, in the case of the CS Component Mortgage Loan Senior
Component or RP Component Mortgage Loan Senior Component 5.42569642857143% and
4.66866476923077%, respectively) as of the Closing Date less the related
Administrative Fee Rate and (b) prior to the Due Date in March will be
determined inclusive of one day of interest retained for each of the one-month
periods prior to the Due Dates in January and February in any year that is not a
leap year or February in any year that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum of the
related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to any of the Component Mortgage
Loan REMIC, REMIC I and REMIC II, either (i) the endangerment of the status of
such REMIC as a REMIC or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon such REMIC or any of its 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 certain contributions set forth in
Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of the states in which any Loan
documents are held and/or any REO Properties are located, (c) such other state
and local law whose applicability shall have been brought to the attention of
the REMIC Administrator by either (i) an Opinion of Counsel delivered to it or
(ii) written notice from the appropriate taxing authority as to the
applicability of such state law, and (d) such other state or local law as to
which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with Title XI of FIRREA (or, in
the case of Loans and REO Loans with a Stated Principal Balance as of the date
of such appraisal of $2,000,000 or less, at the Special Servicer's option,
either a limited appraisal and a summary report or an internal valuation
prepared by the Special Servicer) that indicates the "market value" of the
subject property, as defined in 12 C.F.R. ss.225.62(g), and is conducted by a
Qualified Appraiser (or by the Special Servicer in the case of a limited
appraisal and summary report or internal valuation with respect to a Loan or an
REO Loan with a Stated Principal Balance as of the date of such appraisal or
valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of the date on which the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof was obtained by the Special Servicer pursuant
to this Agreement and the date of the most recent Appraisal Trigger Event with
respect to such Required Appraisal Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, or the
Trustee, all unpaid interest (net of Default Interest) accrued on such
Required Appraisal Loan through the most recent Due Date prior to such
Determination Date, (c) all unpaid Master Servicing Fees, Special
Servicing Fees, Trustee Fees and Additional Trust Fund Expenses accrued
with respect to such Required Appraisal Loan, (d) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special Servicer
or the Trustee with respect to such Required Appraisal Loan and
reimbursable out of the Trust Fund and all Advances related to such
Required Appraisal Loan that were not reimbursed out of collections on
such Required Appraisal Loan, together with all unpaid Advance Interest
accrued on such Advances, and (e) all currently due but unpaid real estate
taxes and assessments, insurance premiums and, if applicable, ground rents
in respect of the related Mortgaged Property or REO Property, as
applicable, for which neither the Master Servicer nor the Special Servicer
holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property (subject to such
downward adjustments as the Special Servicer may deem appropriate (without
implying any obligation to do so) based upon its review of the related
Appraisal and such other information as the Special Servicer deems
appropriate), as applicable, as determined by the most recent relevant
Appraisal acceptable for purposes of Section 3.19(b) hereof, over (ii) the
amount of any obligation(s) secured by any liens on such Mortgaged
Property or REO Property, as applicable, that are prior to the lien of
such Required Appraisal Loan, and (y) any Escrow Payments, Reserve Funds
and/or Letters of Credit held by the Master Servicer or the Special
Servicer with respect to such Required Appraisal Loan, the related
Mortgaged Property or any related REO Property (exclusive of any such
items that are to be applied to real estate taxes, assessments, insurance
premiums and/or ground rents or that were taken into account in
determining the Appraised Value of the related Mortgaged Property or REO
Property, as applicable, referred to in clause (2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Loan, (ii) either (A) no Appraisal has been obtained
or conducted, as applicable in accordance with Section 3.19(b), with respect to
the related Mortgaged Property during the 12-month period prior to the date of
such Appraisal Trigger Event or (B) there shall have occurred since the date of
the most recent Appraisal a material change in the circumstances surrounding the
related Mortgaged Property that would, in the Special Servicer's judgment,
materially affect the value of the property, and (iii) no new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), within
60 days after such Appraisal Trigger Event, then (x) until such new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon receipt or performance, as applicable
in accordance with Section 3.19(b), of such new Appraisal by the Special
Servicer, the Appraisal Reduction Amount for such Required Appraisal Loan will
be recalculated in accordance with the preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Loan, an
Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Group to which that particular Cross-Collateralized
Mortgage Loan belongs as if such Cross-Collateralized Group was a single
Mortgage Loan secured by multiple properties, and any resulting Appraisal
Reduction Amount for such Cross-Collateralized Group shall be allocated among
the respective Cross-Collateralized Mortgage Loans forming that group on a pro
rata basis in accordance with the respective Stated Principal Balances of those
Mortgage Loans.
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts (i) in connection with any P&I Advance required to be made
under this Agreement for (A) a Mortgage Loan constituting a part of a Loan Pair,
such calculation shall be made based upon and allocated solely to the Stated
Principal Balance of the related Mortgage Loan contained in the related Loan
Pair and shall exclude the related Companion Loan, but any such Appraisal
Reduction Amount shall be allocated to the ICG Portfolio B Note or the Summit
Place Apartments B Note, as applicable, prior to being allocated to the ICG
Portfolio Mortgage Loan or the Summit Place Apartments Mortgage Loan and (B)(1)
for the CS Component Mortgage Loan should be calculated based upon the Stated
Principal Balance of the entire Loan and allocated to the CS Component Mortgage
Loan Subordinate Component prior to being allocated to the CS Component Mortgage
Loan Senior Component and (2) for the RP Component Mortgage Loan should be
calculated based upon the Stated Principal Balance of the entire Loan and
allocated to the RP Component Mortgage Loan Subordinate Components in reverse
sequential order prior to being allocated to the RP Component Mortgage Loan
Senior Component and (ii) for purposes of calculating a Control Appraisal
Period, (1) with respect to the CS Component Mortgage Loan should be calculated
based upon the Stated Principal Balance of the entire Loan and allocated to the
CS Component Mortgage Loan Subordinate Component prior to being allocated to the
CS Component Mortgage Loan Senior Component and (2) with respect to the RP
Component Mortgage Loan should be calculated based upon the Stated Principal
Balance of the entire Loan and allocated to the RP Component Mortgage Loan
Subordinate Components in reverse sequential order prior to being allocated to
the RP Component Mortgage Loan Senior Component
Any Appraisal Reduction Amount for the Bank of America Center Whole
Loan shall be generally allocated to the related notes pro rata based on each
such note's outstanding principal balance pursuant to the Bank of America Center
Pooling Agreement. Any Appraisal Reduction Amount for the ICG Portfolio A/B Loan
shall be generally allocated first to the ICG Portfolio B Note and then to the
ICG Portfolio Mortgage Loan. Any Appraisal Reduction Amount for the Summit Place
Apartments A/B Loan shall be generally allocated first to the Summit Place
Apartments B Note and then to the Summit Place Apartments Mortgage Loan.
"Appraisal Trigger Event": With respect to any Loan (other than the
Bank of America Center Whole Loan) or Loan Pair, any of the following events:
(i) such Loan or Loan Pair becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan or Loan Pair
remains unpaid for 60 days past the Due Date for such payment (or for such
shorter period at the end of which such delinquency will become a
Servicing Transfer Event); provided, however, solely in the case of a
delinquent Balloon Payment and if (x) the related Borrower is actively
seeking a refinancing commitment, (y) the related Borrower continues to
make payments in the amount of its Monthly Payment, and (z) the Directing
Certificateholder consents, failure to pay such Balloon Payment during
such 60-day period shall not constitute an Appraisal Trigger Event if the
related Mortgagor has delivered to the Master Servicer, on or before the
60th day after the Due Date of such Balloon Payment, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer
period, not to exceed 120 days beyond such Due Date, during which the
refinancing would occur;
(iii) the passage of 60 days after the Special Servicer receives
notice that the Mortgagor under such Loan or Loan Pair becomes the subject
of bankruptcy, insolvency or similar proceedings that remain undischarged
and undismissed;
(iv) the passage of 60 days after the Special Servicer receives
notice that a receiver or similar official is appointed with respect to
the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property; or
(vi) if a Loan has been extended three times, upon the sixtieth day
after the third extension.
"Appraised Value": With respect to any Mortgaged Property (other
than the Bank of America Center Whole Loan Mortgaged Property) and as of any
date of determination, the appraised value of a Mortgaged Property or REO
Property based upon the most recent Appraisal obtained or conducted, as
appropriate, pursuant to this Agreement. With respect to the Bank of America
Center Whole Loan Mortgaged Property, the appraised value shall be determined
pursuant to the Bank of America Center Pooling Agreement.
"Approval Provisions": With respect to any Loan (other than the Bank
of America Center Whole Loan) and the provisions set forth in Section 3.21(e)
hereof, the approvals and consents and the time frames for such approvals and
consents necessary in connection with the taking of a Special Action or the
extension of the maturity date of a Loan set forth below:
(i) with respect to any Performing Loan, the Master Servicer shall
obtain the approval or consent of the Special Servicer;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP Loan
that is a Performing Loan that involves an extension of the maturity date
of such Loan or (B) in connection with a Special Action for any
Non-Partitioned Loan or Post CAP Loan that is a Performing Loan, the
Master Servicer shall obtain the approval and consent of the Special
Servicer and the Special Servicer shall obtain the approval and consent of
the Directing Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP Loan that
is a Specially Serviced Loan, the Special Servicer shall obtain the
approval and consent of the Directing Certificateholder;
(iv) with respect to the CS Component Mortgage Loan during any time
period that a CS Control Appraisal Period does not exist, the Master
Servicer, if the CS Component Mortgage Loan is a then Performing Loan,
shall obtain the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the CS
Controlling Holder;
(v) with respect to the RP Component Mortgage Loan during any time
period that an RP Control Appraisal Period does not exist, the Master
Servicer, if the RP Component Mortgage Loan is a then Performing Loan,
shall seek the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the RP
Controlling Holder;
(vi) with respect to the CS Component Mortgage Loan during any time
period that a CS Control Appraisal Period does not exist, the Special
Servicer, if the CS Component Mortgage Loan is a then Specially Serviced
Loan, shall obtain the approval and consent of the CS Controller Holder;
and
(vii) with respect to the RP Component Mortgage Loan during any time
period that an RP Control Appraisal Period does not exist, the Special
Servicer, if the RP Component Mortgage Loan is a then Specially Serviced
Loan, shall obtain the approval and consent of the RP Controlling Holder.
With respect to any extension or Special Action set forth in clauses
(ii), (iv) and (vi) above, the Special Servicer shall respond to the Master
Servicer in writing (which may be via e-mail or facsimile) of its decision to
grant or deny the Master Servicer's request for approval and consent within ten
Business Days of its receipt of such request and all information reasonably
requested by the Special Servicer, as such time frame may be extended if the
Special Servicer is required to seek the consent of the Directing
Certificateholder, the CS Controlling Holder, the RP Controlling Holder or any
Rating Agency. If the Special Servicer so fails to respond to the Master
Servicer within the time period referenced in the immediately preceding
sentence, such approval and consent shall be deemed granted. With respect to any
Special Action described in clauses (ii) and (iii) above, the Directing
Certificateholder shall respond to the Special Servicer within ten Business Days
of its receipt of such request in writing along with any reasonably requested
information (which may be via e-mail or facsimile) and such request will be
deemed granted if the Directing Certificateholder does not respond in such time
frame. With respect to any Special Action described in clauses (iv) through
(vii) above, the CS Controlling Holder or the RP Controlling Holder, as
applicable, shall respond in writing and (which may be via e-mail or facsimile)
to the Special Servicer within ten Business Days of its receipt of a request for
its approval and consent, and such request will be deemed granted if the
required party does not respond in such time frame.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment Documents": With respect to any Loan, any of the
following:
(i) the documents identified in clause (iv) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(ii) the documents identified in clause (v) of the definition of
Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(iii) any UCC-2 or UCC-3 filing identified in clause (viii) of the
definition of Mortgage File, including any intervening UCC-2 or UCC-3 from
each assignee of record prior to the Trustee; or
(iv) an original assignment of any related Security Agreement (if
such item is a document separate from the related Mortgage) executed by
the most recent assignee of record thereof prior to the Trustee or, if
none, by the originator, in favor of the Trustee (in such capacity),
together with any collateral therefor (including without limitation
securities) in the related Mortgage Loan Seller's possession, which
assignment may be included as part of the corresponding assignment of the
related Mortgage referred to in clause (iv) of the definition of Mortgage
File.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Loan has not been paid in full, and no
other Liquidation Event has occurred in respect thereof, on or before the end of
the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date which such Mortgage Loan remains outstanding and part of the
Trust Fund, if no Monthly Payment (other than a 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
amount that would have been due in respect of such Loan 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 (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled maturity date (as such terms and amortization schedule may have
been modified, and such maturity date may have been extended, in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20). With respect to
any REO Loan, for any Due Date therefor as of which the related REO Property
remains part of the Trust Fund, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Monthly Payment that was due (or, in the case of a Balloon Loan described in
the preceding sentence of this definition, the Assumed Monthly Payment that was
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date, the sum of (I) with respect to each Majority Mortgage Loan and, in the
case of the Bank of America Center Mortgage Loan, only to the extent received by
the Trustee pursuant to the Bank of America Center Intercreditor Agreement, an
amount equal to (a) the balance on deposit in the Distribution Account as of
11:30 a.m. (New York City time) on such Distribution Date (or such later time on
such date as of which distributions are made on the Certificates), including,
without limitation, if and to the extent on deposit therein as of such time, the
Master Servicer Remittance Amount for the related Master Servicer Remittance
Date, any P&I Advances made by the Master Servicer or the Trustee to cover
uncollected Monthly Payments due and/or Assumed Monthly Payments deemed due
during the related Collection Period, any amounts received from the Bank of
America Center Master Servicer in respect of the Bank of America Center Mortgage
Loan pursuant to the Bank of America Center Pooling Agreement and/or the Bank of
America Center Intercreditor Agreement, any Compensating Interest Payments made
by the Master Servicer to cover Prepayment Interest Shortfalls incurred during
the related Collection Period, and for the Distribution Date occurring in each
March, the related Withheld Amounts remitted to the REMIC I Distribution Account
pursuant to Section 4.05, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) Prepayment Premiums, (iv) any amounts payable or reimbursable to any
Person from the REMIC I Distribution Account pursuant to any of clauses (ii)
through (vi) of Section 3.05(b), (v) any amounts deposited into the REMIC I
Distribution Account in error, (vi) all funds released from the Excess
Liquidation Proceeds Account with respect to such Distribution Date, (vii) any
amounts payable or reimbursable to any Person from the Certificate Account
pursuant to clauses (ii) through (xix) of Section 3.05(a) and (viii) with
respect to each Mortgage Loan that accrues interest on an Actual/360 Basis and
any Distribution Date relating to the one-month period preceding the
Distribution Date in each February (and in any January of a year that is not a
leap year), an amount equal to the related Withheld Amount pursuant to Section
4.05; provided that the Available Distribution Amount for the Final Distribution
Date shall be calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this definition; (II) with respect to the Class CS Component Mortgage Loan,
all amounts distributable pursuant to Section 4.01(j)(i), (ii) and (iii); and
(III) with respect to the Class RP Component Mortgage Loan, all amounts
distributable pursuant to Section 4.01(k)(i), (ii) and (iii).
"BACM": Banc of America Commercial Mortgage Inc., or its successor
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue of
any modification entered into as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution) provides for
an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Monthly Payment payable on the Stated Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any Balloon
Loan that is included as part of the Trust Fund, with a Stated Maturity Date
that occurs after, or that provides for a grace period for its Balloon Payment
that runs past, the Determination Date in any calendar month, and as to which
the Balloon Payment is actually received after the Determination Date in such
calendar month (but no later than its Stated Maturity Date or, if there is an
applicable grace period, beyond the end of such grace period), the amount of
interest, to the extent not collected from the related Determination Date, that
would have accrued on the principal portion of such Balloon Payment during the
period from the related Stated Maturity Date to, but not including, the first
day of the calendar month following the month of maturity (less the amount of
related Master Servicing Fees that would have been payable from that uncollected
interest and, if applicable, exclusive of any portion of that uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bank of America Center Companion Loan Noteholders": Collectively,
the Bank of America Center Companion Note A-1 Noteholder and Bank of America
Center Companion Note A-2 Noteholder.
"Bank of America Center Companion Loans": For so long as the Bank of
America Center Mortgage Loan or a successor REO Loan with respect to the Bank of
America Center Mortgage Loan is part of the Mortgage Pool, collectively, the
Bank of America Center Note A-1 Senior Companion Loan, the Bank of America
Center Note A-1 Subordinate Companion Loan and the Bank of America Center Note
A-2 Companion Loan. The Bank of America Center Companion Loans are not included
in the Trust.
"Bank of America Center Companion Note A-1": With respect to the
Bank of America Center Whole Loan, the related Mortgage Note identified as "Note
A1" in the Bank of America Center Intercreditor Agreement and which Note is pari
passu in right of payment to the Bank of America Center Note A-2 and the Bank of
America Center Pari Passu Note A-3. The Bank of America Center Companion Note
A-1 is not included in the Trust.
"Bank of America Center Companion Note A-1 Noteholder": The holder
of the Bank of America Center Companion Note A-1.
"Bank of America Center Companion Note A-2": With respect to the
Bank of America Center Whole Loan, the related Mortgage Note identified as "Note
A2" in the Bank of America Center Intercreditor Agreement and which Note is pari
passu in right of payment to the Bank of America Center Note A-1 and the Bank of
America Center Pari Passu Note A-3. The Bank of America Center Companion Note
A-2 is not included in the Trust.
"Bank of America Center Companion Note A-2 Noteholder": The holder
of the Bank of America Center Companion Note A-2.
"Bank of America Center Control Appraisal Period": If the
outstanding aggregate principal balance of the Bank of America Center Component
Mortgage Loan Subordinate Component (net of any Appraisal Reduction Amounts,
principal payments, Realized Losses and unreimbursed Additional Trust Fund
Expenses) is less than 25% of its original principal balance.
"Bank of America Center Controlling Class": As of any date of
determination, the outstanding "Class BC Certificates" (as defined in the Bank
of America Center Pooling Agreement).
"Bank of America Center Controlling Class Holder": The Majority
Certificateholder of the Bank of America Center Controlling Class.
"Bank of America Center Controlling Holder": With respect to any
date of determination (a) prior to the occurrence of a Bank of America Center
Whole Loan Control Appraisal Period, the Bank of America Center Controlling
Class Holder and (b) during the occurrence and the continuance of a Bank of
America Center Whole Loan Control Appraisal Period, the holders of the Bank of
America Center Mortgage Notes (which includes the Trust Fund as the holder of
the Bank of America Center Mortgage Loan). The initial Bank of America Center
Controlling Holder and, if applicable, the related Operating Advisor are set
forth on Schedule V to the Bank of America Center Pooling Agreement.
"Bank of America Center Depositor": The "Depositor" under the Bank
of America Center Pooling Agreement, which as of the date hereof is Banc of
America Commercial Mortgage Inc.
"Bank of America Center Fifth Mezzanine Lender": BPO 555 California
Mezz Ltd. or its permitted successors or assigns.
"Bank of America Center First Mezzanine Lender": Bank of America or
its permitted successors or assigns.
"Bank of America Center Fourth Mezzanine Lender": BREF ONE, LLC -
Series B or its permitted successors or assigns.
"Bank of America Center Intercreditor Agreement": With respect to
the Bank of America Center Whole Loan, the Intercreditor and Servicing Agreement
dated as of October 1, 2004 by and among the holder of the Bank of America
Center Mortgage Loan, the Bank of America Center Companion Note A-1 Noteholder
and the Bank of America Center Companion Note A-2 Noteholder 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.
"Bank of America Center Master Servicer": The "Master Servicer"
under the Bank of America Center Pooling Agreement, which as of the date hereof
is Bank of America, N.A.
"Bank of America Center Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of September 2, 2004 by and among the
Bank of America as "Senior Lender", Bank of America as "First Mezzanine Lender",
Bank of America as "Second Mezzanine Lender", Teddy Mezz Private Limited as
"Third Mezzanine Lender", BREF ONE, LLC - Series B as "Fourth Mezzanine Lender"
and BPO 555 California Mezz Ltd. as "Fifth Mezzanine Lender".
"Bank of America Center Mezzanine Lenders": Each of the Bank of
America Center First Mezzanine Lender, the Bank of America Center Second
Mezzanine Lender, the Bank of America Center Third Mezzanine Lender, the Bank of
America Center Fourth Mezzanine Lender and the Bank of America Center Fifth
Mezzanine Lender.
"Bank of America Center Mezzanine Loans": Those certain mezzanine
loans related to the Bank of America Center Mortgage Loan, which are described
as follows: (i) the loan to 555 California Mezz-1 LLC in the original principal
amount of $34,000,000 made pursuant to the First Mezzanine Loan Agreement dated
as of September 2, 2004 between 555 California Mezz-1 LLC and Bank of America,
which loan was as of underwriting owned and held by Bank of America Center First
Mezzanine Lender; (ii) the loan to 555 California Mezz-2 LLC in the original
principal amount of $34,000,000 made pursuant to the Second Mezzanine Loan
Agreement dated as of September 2, 2004 between 555 California Mezz-2 LLC and
Bank of America, which loan was as of underwriting owned and held by Bank of
America Center Second Mezzanine Lender; (iii) the loan to 555 California Mezz-3
LLC in the original principal amount of $90,000,000 made pursuant to the Third
Mezzanine Loan Agreement dated as of September 2, 2004 between 555 California
Mezz-3 LLC and Bank of America, which loan was as of underwriting owned and held
by Bank of America Center Third Mezzanine Lender; (iv) the loan to 555
California Mezz-4 LLC in the original principal amount of $45,000,000 made
pursuant to the First Mezzanine Loan Agreement dated as of September 2, 2004
between 555 California Mezz-4 LLC and Bank of America, which loan was as of
underwriting owned and held by Bank of America Center Fourth Mezzanine Lender;
and (v) the loan to 555 California Mezz-5 LLC in the original principal amount
of $27,000,000 made pursuant to the First Mezzanine Loan Agreement dated as of
September 2, 2004 between 555 California Mezz-5 LLC and Bank of America, which
loan was as of underwriting owned and held by Bank of America Center Fifth
Mezzanine Lender.
"Bank of America Center Mortgage Loan": The Mortgage Loan identified
as Loan No. 58399 in the Mortgage Loan Schedule secured by the Bank of America
Center Pari Passu Note A-3, which, together with the Bank of America Center
Companion Note A-1 and the Bank of America Center Companion Note A-2, is secured
by a Mortgage on the Bank of America Center Whole Loan Mortgaged Property.
"Bank of America Center Mortgage Notes": Each of the Bank of America
Center Companion Note A-1, the Bank of America Center Companion Note A-2 and the
Bank of America Center Pari Passu Note A-3.
"Bank of America Center Nonrecoverable P&I Advance": Any
"Nonrecoverable P&I Advance" (as defined in the Bank of America Center Pooling
Agreement) made with respect to the Bank of America Center Mortgage Loan
pursuant to and in accordance with the Bank of America Center Pooling Agreement.
"Bank of America Center Nonrecoverable Servicing Advance": Any
"Nonrecoverable Servicing Advance" (as defined in the Bank of America Center
Pooling Agreement) made with respect to the Bank of America Center Mortgage Loan
pursuant to and in accordance with the Bank of America Center Pooling Agreement.
"Bank of America Center Note A-1 Senior Companion Loan": With
respect to the Bank of America Center Whole Loan, the senior portion of the Bank
of America Center Companion Note A-1 made by the Mortgagor under the Bank of
America Center Whole Loan and secured by the Mortgage on the Bank of America
Center Whole Loan Mortgaged Property that is senior in right of payment to the
Bank of America Center Note A-1 Subordinate Companion Loan and pari passu in
right of payment to the Bank of America Center Companion Note A-2 and the Bank
of America Center Pari Passu Note A-3. The Bank of America Center Note A-1
Senior Companion Loan is not included in the Trust.
"Bank of America Center Note A-1 Senior Component": With respect to
the Bank of America Center Companion Note A-1, the $150,000,000 senior portion
of the $253,000,000 Bank of America Center Companion Note A-1, which component
is pari passu in right of payment to the Bank of America Center Companion Note
A-2 and the Bank of America Center Pari Passu Note A-3. The Bank of America
Center Note A-1 Senior Component is not included in the Trust.
"Bank of America Center Note A-1 Subordinate Companion Loan": With
respect to the Bank of America Center Whole Loan, the subordinate portion of the
Bank of America Center Companion Note A-1 made by the Mortgagor under the Bank
of America Center Whole Loan and secured by the Mortgage on the Bank of America
Center Whole Loan Mortgaged Property that is subordinate in right of payment to
the Bank of America Center Senior Loans. The Bank of America Center Note A-1
Subordinate Companion Loan is not included in the Trust.
"Bank of America Center Note A-1 Subordinate Component": With
respect to the Bank of America Center Companion Note A-1, the $103,000,000
subordinate portion of the $253,000,000 Bank of America Center Companion Note
A-1, which component is subordinate in right of payment to the Bank of America
Center Note A-1 Senior Component, the Bank of America Center Companion Note A-2
and the Bank of America Center Pari Passu Note A-3. The Bank of America Center
Note A-1 Subordinate Component is not included in the Trust.
"Bank of America Center Noteholders": Collectively, the holders of
the Mortgage Notes for the Bank of America Center Companion Note A-1, the Bank
of America Center Companion Note A-2 and the Bank of America Center Pari Passu
Note A-3.
"Bank of America Center Pari Passu Note A-3": With respect to the
Bank of America Center Whole Loan, the related Mortgage Note identified as "Note
A3" in the Bank of America Center Intercreditor Agreement, which Note is pari
passu in right of payment to the Bank of America Center Companion Note A-1 and
the Bank of America Center Companion Note A-2. The Bank of America Center Pari
Passu Note A-3 is included in the Trust.
"Bank of America Center Pooling Agreement": The Pooling and
Servicing Agreement dated as of October 1, 2004 among Banc of America Commercial
Mortgage Inc., as depositor, Bank of America, N.A., as master servicer, Midland
Loan Services, Inc., as special servicer, LaSalle Bank National Association, as
trustee and REMIC administrator, and ABN AMRO Bank N.V., as fiscal agent, as
from time to time amended, supplemented or modified.
"Bank of America Center Purchase Option Holder": The holder of the
purchase option relating to the Bank of America Center Whole Loan pursuant to
the Bank of America Center Intercreditor Agreement.
"Bank of America Center Second Mezzanine Lender": Bank of America or
its permitted successors or assigns.
"Bank of America Center Senior Loans": Collectively, the Bank of
America Center Note A-1 Senior Companion Loan, the Bank of America Center Note
A-2 Companion Loan and the Bank of America Center Mortgage Loan.
"Bank of America Center Special Servicer": The "Special Servicer"
under the Bank of America Center Pooling Agreement, which as of the date hereof
is Midland Loan Services, Inc.
"Bank of America Center Third Mezzanine Lender": Teddy Mezz Private
Limited or its permitted successors or assigns.
"Bank of America Center Trustee": The "Trustee" under the Bank of
America Center Pooling Agreement, which as of the date hereof is LaSalle Bank
National Association.
"Bank of America Center Whole Loan": The Bank of America Center
Mortgage Loan (included in the Trust), together with the Bank of America Center
Note A-1 Senior Companion Loan, the Bank of America Center Note A-1 Subordinate
Companion Loan and the Bank of America Center Note A-2 Companion Loan, each of
which is secured by the same Mortgage on the Bank of America Center Whole Loan
Mortgaged Property. References herein to the Bank of America Center Whole Loan
shall be construed to refer to the aggregate indebtedness under the Bank of
America Center Senior Loans and the Bank of America Center Note A-1 Subordinate
Companion Loan.
"Bank of America Center Whole Loan Control Appraisal Period": If the
outstanding principal balance of the Bank of America Center Note A-1 Subordinate
Companion Loan (net of any Appraisal Reduction Amounts, principal payments,
Realized Losses and unreimbursed Additional Trust Fund Expenses (each as defined
in the Bank of America Center Pooling Agreement)) is less than 25% of its
original principal balance.
"Bank of America Center Whole Loan Mortgage": The Mortgage securing
the Bank of America Center Mortgage Loan and the Bank of America Center
Companion Loans.
"Bank of America Center Whole Loan Mortgaged Property": The property
that secures the Bank of America Center Whole Loan.
"Bank of America Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"Bankruptcy Code": The federal Bankruptcy Code (Title 11 of the
United States Code), as amended from time to time.
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated November 8, 2004,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York, North Carolina, Missouri,
Texas and Maryland and the jurisdictions in which the Primary Servicing Offices
of the Master Servicer and Special Servicer and the Corporate Trust Office of
the Trustee are located, are authorized or obligated by law or executive order
to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2004-5, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, N.A., as Master Servicer, in trust for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-5, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, Class CS Certificates or Class RP Certificates, as of any date of
determination, a fraction, expressed as a decimal carried to at least eight
places, the numerator of which is the then related Class Principal Balance or
Class X Notional Amount, as the case may be, and the denominator of which is the
related Initial Class Principal Balance or Initial Class X Notional Amount, as
the case may be.
"Certificate Notional Amount": With respect to any Class XC or Class
XP Certificate, as of any date of determination, the then notional amount of
such Certificate equal to the product of (a) the Percentage Interest evidenced
by such Certificate, multiplied by (b) the then Class X Notional Amount of such
Class XC or Class XP Certificate, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, Class CS Certificate or Class RP Certificate, as of any date of
determination, the then outstanding principal amount of such Certificate equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Principal Balance of the Class of Certificates
to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, a Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01(b) or except
in connection with the Controlling Class exercising its rights under Section
3.23 (or, when a Controlling Class Certificateholder is also the Directing
Certificateholder, its rights as Directing Certificateholder elsewhere in this
Agreement) or unless such Persons collectively own an entire Class of
Certificates and only the Holders of such Class of Certificates are entitled to
grant such consent, approval or waiver. The Certificate Registrar shall be
entitled to request and rely upon a certificate of the Depositor, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether or not a Certificate
is registered in the name of an Affiliate of such Person. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
the Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Party": As defined in Section 8.13(c).
"Certifying Person": As defined in Section 8.13(c).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation and each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-J Certificates.
"Class A Senior Certificates": Any one of the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4 or Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1 Pass-Through Rate": A fixed per annum rate equal to
3.8120%.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A fixed per annum rate equal to
4.5420%.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A fixed per annum rate equal to
4.1760%.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A fixed per annum rate equal to
4.5610%.
"Class A-AB Certificate": Any one of the Certificates with a "Class
A-AB" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-AB Pass-Through Rate": A fixed per annum rate equal to
4.6730%.
"Class A-AB Planned Principal Amount": The planned principal amount
set forth on Annex D to the Prospectus Supplement relating to principal payments
for the Class A-AB Certificates.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to 4.9360%;
provided, however, that the Class A-4 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to 4.9920%;
provided, however, that the Class A-J Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 5.0580%;
provided, however, that the Class B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 5.0990%;
provided, however, that the Class C Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class CS Certificate": Any one of the Certificates with a "Class
CS" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class CS Pass-Through Rate": With respect to any Distribution Date
and the Class CS Certificates, the rate per annum set forth in the Preliminary
Statement hereto.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to 5.1580%;
provided, however, that the Class D Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 5.2420%;
provided, however, that the Class E Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate less 0.198% for the related Distribution
Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate less 0.099% for the related Distribution
Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class J Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class K Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class L Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class M Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class N Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class O Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 4.7180%;
provided, however, that the Class P Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates, Class CS Certificates or Class RP
Certificates outstanding as of any date of determination. As of the Closing
Date, the Class Principal Balance of each such Class of Certificates shall equal
the Initial Class Principal Balance thereof. On each Distribution Date, the
Class Principal Balance of each Class of Sequential Pay Certificates, Class CS
Certificates and Class RP Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01(b), Section 4.01(j), and Section 4.01(k), as
applicable, and shall be further permanently reduced on such Distribution Date
as and to the extent provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing the Component Mortgage Loan REMIC Residual
Interest and the REMIC I Residual Interest for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class RP Certificates": Each of the Class RP-1, Class RP-2, Class
RP-3 and Class RP-4 Certificates.
"Class RP Pass-Through Rate": With respect to any Distribution Date
and any Class of Class RP Certificates, the rate per annum set forth in the
Preliminary Statement hereto.
"Class RP-1 Certificate": Any one of the Certificates with a "Class
RP-1" designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class RP-2 Certificate": Any one of the Certificates with a "Class
RP-2" designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class RP-3 Certificate": Any one of the Certificates with a "Class
RP-3" designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class RP-4 Certificate": Any one of the Certificates with a "Class
RP-4" designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC Certificates and the Class XP
Certificates.
"Class X Notional Amount": The Class XC Notional Amount and the
Class XP Notional Amount.
"Class XC Certificate": Any one of the Certificates with a "Class
XC" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XC Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all of the applicable Components.
"Class XC Pass-Through Rate": With respect to the initial
Distribution Date, 0.0441% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XC Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class XC Strip Rate": With respect to any Class of Components
(other than any Class XP Component) for any Distribution Date, a rate per annum
equal to the Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date, minus the Pass-Through Rate for the Corresponding Certificates. In the
case of any Class XP Component (i) for any Distribution Date occurring on or
before the related Class XP Component Crossover Date, (x) the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus (y) the sum of the
Pass-Through Rate for the Corresponding Certificates for such Distribution Date
and the Class XP Strip Rate for such Component for such Distribution Date, and
(ii) for any Distribution Date occurring after the related Class XP Component
Crossover Date, a rate per annum equal to (x) the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for
the Corresponding Certificates (provided that in no event shall any Class XC
Strip Rate be less than zero).
"Class XP Certificate": Any one of the Certificates with a "Class
XP" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XP Component Crossover Date": With respect to each Class XP
Component, the related Class XP Crossover Date as set forth in the table below:
Class XP Component Class XP Component Crossover Date
------------------ ---------------------------------
Components XA-1A-2 and XA-1-2 May 2005 Distribution Date
Components XA-1A-3 and XA-1-3 November 2005 Distribution Date
Components XA-1A-4 and XA-1-4 May 2006 Distribution Date
Components XA-1A-5, XA-1-5, November 2006 Distribution Date
XA-2-1, XK-1 and XL
Components XA-1A-6, XA-2-2, XJ and May 2007 Distribution Date
XK-2
Components XA-1A-7, XA-2-3, XH-1 November 2007 Distribution Date
and XJ-2
Components XA-1A-8, XA-2-4 and May 2008 Distribution Date
XH-2
Components XA-1A-9, XA-2-5, XG-1 November 2008 Distribution Date
and XH-3
Components XA-1A-10, XA-2-6, May 2009 Distribution Date
XA-3-1, XA-AB-1, XF-1 and XG-2
Components XA-1A-11, XA-3-2, November 2009 Distribution Date
XA-A-AB-2 and XF-2
Components XA-1A-12, XA-3-3, May 2010 Distribution Date
XA-AB-3 and XF-3
Components XA-1A-13, XA-3-4, November 2010 Distribution Date
XA-AB-4, XE-1 and XF-4
Components XA-1A-14, XA-3-5, May 2011 Distribution Date
XA-AB-5, XA-4-1 and XE-2
Components XA-1A-15, XA-4-2, XA-J, November 2011 Distribution Date
XB, XC, XD and XE-3
"Class XP Components": Each of Component XA-1-2, Component XA-1-3,
|
Component XA-1-4, Component XA-1-5, Component XA-2-1, Component XA-2-2,
Component XA-2-3, Component XA-2-4, Component XA-2-5, Component XA-2-6,
Component XA-3-1, Component XA-3-2, Component XA-3-3, Component XA-3-4,
Component XA-3-5, Component XA-AB-1, Component XA-AB-2, Component XA-AB-3,
Component XA-AB-4, Component XA-AB-5, Component XA-4-1, Component XA-4-2,
Component XA-1A-2, Component XA-1A-3, Component XA-1A-4, Component XA-1A-5,
Component XA-1A-6, Component XA-1A-7, Component XA-1A-8, Component XA-1A-9,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XA-1A-14, Component XA-1A-15, Component XA-J, Component XB, Component
XC, Component XD, Component XE-1, Component XE-2, Component XE-3, Component
XF-1, Component XF-2, Component XF-3, Component XF-4, Component XG-1, Component
XG-2, Component XH-1, Component XH-2, Component XH-3, Component XJ-1, Component
XJ-2, Component XK-1, Component XK-2 and Component XL.
"Class XP Fixed Strip Rate": Means the applicable Class XP strip
rate will equal (a) with respect to the Class F Certificates, 0.168% (the "Class
XP (Class F) Fixed Strip Rate"), (b) with respect to the Class G Certificates,
0.069% (the "Class XP (Class G) Fixed Strip Rate")
"Class XP Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of the Class XP Components, excluding the
Class XP Components for which the Class XP Crossover Date has previously passed.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 0.6843% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XP Strip Rates for the respective Class XP
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class XP Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Schedule IV attached hereto.
"Class XP Strip Rate": With respect to each of the Class XP
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (A) with respect to each of Component XF-1, Component XF-2,
Component XF-3 and Component XF-4, the Class XP (Class F) Fixed Strip Rate; (B)
with respect to each of Component XG-1 and Component XG-2, the Class XP (Class
G) Fixed Strip Rate; and (C) with respect to each other Class XP Component, the
lesser of (I) the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date and (II) the Class XP Reference Rate for such Distribution
Date minus (D) the Pass-Through Rate for the Corresponding Certificates
(provided that in no event shall any Class XP Strip Rate be less than zero) and
(ii) for any Distribution Date occurring after the related Class XP Component
Crossover Date, 0% per annum.
"Closing Date": November 23, 2004.
"Clearstream": Clearstream Banking, societe anonyme.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, initial purchasers and
underwriters generally involved in the commercial mortgage loan securitization
industry that is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Certificateholder.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package": Collectively refers to
(1) the following seven electronic files: (i) CMSA Bond Level File,
(ii) CMSA Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA Financial
File, and (vii) CMSA Special Servicer Loan File;
(2) the following nine supplemental reports: (i) CMSA Comparative
Financial Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv)
CMSA Historical Liquidation Report, (v) CMSA Operating Statement Analysis
Report, (vi) CMSA NOI Adjustment Worksheet, (vii) CMSA REO Status Report,
(viii) CMSA Servicer Watch List, and (ix) CMSA Loan Level Reserve - LOC
Report; and
(3) such other reports as CMSA may designate as part of the CMSA
Investor Reporting Package that are reasonably acceptable to the Master
Servicer, Special Servicer or Trustee, as applicable.
In addition, the CMSA Investor Reporting Package shall include the
Monthly Additional Report on Recoveries and Reimbursements, if such report is
required for a particular month (notwithstanding that such form of report has
not been adopted or recommended by the CMSA).
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee; provided, however, that each CMSA Loan Periodic Update File prepared by
the Master Servicer shall be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements, if such report is required for a particular
month, and all references herein to "CMSA Loan Periodic Update File" shall be
construed accordingly.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Co-Lender Agreements": The ICG Portfolio Co-Lender Agreement and
the Summit Place Apartments Co-Lender Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loans": The loan evidenced by the ICG Portfolio B Note
and the loan evidenced by the Summit Place Apartments B Note.
"Companion Loan Noteholders": The ICG Portfolio B Noteholder and the
Summit Place Apartments B Noteholder.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XA-1-1, Component XA-1-2, Component
XA-1-3, Component XA-1-4, Component XA-1-5, Component XA-2-1, Component XA-2-2,
Component XA-2-3, Component XA-2-4, Component XA-2-5, Component XA-2-6,
Component XA-3-1, Component XA-3-2, Component XA-3-3, Component XA-3-4,
Component XA-3-5, Component XA-AB-1, Component XA-AB-2, Component XA-AB-3,
Component XA-AB-4, Component XA-AB-5, Component XA-4-1, Component XA-4-2,
Component XA-1A-1, Component XA-1A-2, Component XA-1A-3, Component XA-1A-4,
Component XA-1A-5, Component XA-1A-6, Component XA-1A-7, Component XA-1A-8,
Component XA-1A-9, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XA-1A-14, Component XA-1A-15, Component XA-J,
Component XB, Component XC, Component XD, Component XE-1, Component XE-2,
Component XE-3, Component XF-1, Component XF-2, Component XF-3, Component XF-4,
Component XG-1, Component XG-2, Component XH-1, Component XH-2, Component XH-3,
Component XJ-1, Component XJ-2, Component XK-1, Component XK-2, Component XL,
Component XM, Component XN, Component XO and Component XP.
"Component Mortgage Loan": Any of the CS Component Mortgage Loan or
the RP Component Mortgage Loan, individually and/or collectively, as the context
requires.
"Component Mortgage Loan REMIC": A segregated pool of assets subject
hereto and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of: (i) the CS Component Mortgage Loan, the RP
Component Mortgage Loan, any related REO Property and all payments under and
proceeds of such Mortgage Loans or REO Property received or receivable after the
Cut-off Date (other than payments of principal, interest and other amounts due
and payable on such Mortgage Loans on or before the Cut-off Date), together with
all documents, Escrow Payments and Reserve Funds delivered or caused to be
delivered hereunder by the applicable Mortgage Loan Seller with respect to such
Mortgage Loans, (ii) the rights of the Depositor under Sections 2, 3, 4, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Mortgage Loan Purchase and Sale
Agreement with respect to such Mortgage Loans and (iii) such amounts on or with
respect to clause (i) as from time to time are deposited into the Distribution
Account, the Certificate Account, the Interest Reserve Account and the REO
Account (if established) and the Excess Liquidation Proceeds Account (if
established), and in the case of a Loan Pair, to the extent of the Trust's
interest in each of the foregoing.
"Component Mortgage Loan REMIC Distribution Account": As defined in
Section 3.04(c)(iii).
"Component Mortgage Loan REMIC Regular Interest": Any of the
Component Mortgage Loan REMIC Senior Regular Interests and the Component
Mortgage Loan REMIC Subordinate Regular Interests.
"Component Mortgage Loan REMIC Residual Interest": The sole class of
"residual interests" in the Component Mortgage Loan REMIC for purposes of the
REMIC Provisions and evidenced by the Class R-I Certificates.
"Component Mortgage Loan REMIC Senior Regular Interest": Any of the
CS Component Mortgage Loan REMIC Senior Regular Interest and/or the RP Component
Mortgage Loan REMIC Senior Regular Interests.
"Component Mortgage Loan REMIC Subordinate Regular Interest": Any of
the Class CS Certificates and the Class RP Certificates.
"Component Mortgage Loan Senior Component": Each of the CS Component
Mortgage Loan Senior Component and/or RP Component Mortgage Loan Senior
Component, individually and/or collectively, as the context may require.
"Component Mortgage Loan Subordinate Component": Each of the CS
Component Mortgage Loan Subordinate Component and/or RP Component Mortgage Loan
Subordinate Components, individually and/or collectively, as the context may
require.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1-1": One of the 63 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any date of
determination.
"Component XA-1-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-2 as of any date of determination.
"Component XA-1-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of determination.
"Component XA-1-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-4 as of any date of determination.
"Component XA-1-5": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-5 as of any date of determination.
"Component XA-1A-1": One of the 63 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A-1 as of any date of
determination.
"Component XA-1A-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-2 as of any date of determination.
"Component XA-1A-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-3 as of any date of determination.
"Component XA-1A-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-4 as of any date of determination.
"Component XA-1A-5": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-5 as of any date of determination.
"Component XA-1A-6": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-6 as of any date of determination.
"Component XA-1A-7": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-7 as of any date of determination.
"Component XA-1A-8": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-8 as of any date of determination.
"Component XA-1A-9": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-9 as of any date of determination.
"Component XA-1A-10": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-10 as of any date of determination.
"Component XA-1A-11": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-11 as of any date of determination.
"Component XA-1A-12": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-12 as of any date of determination.
"Component XA-1A-13": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-13 as of any date of determination.
"Component XA-1A-14": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-14 as of any date of determination.
"Component XA-1A-15": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-15 as of any date of determination.
"Component XA-2-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-1 as of any date of determination.
"Component XA-2-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-2 as of any date of determination.
"Component XA-2-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-3 as of any date of determination.
"Component XA-2-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-4 as of any date of determination.
"Component XA-2-5": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-5 as of any date of determination.
"Component XA-2-6": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-6 as of any date of determination.
"Component XA-3-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-1 as of any date of determination.
"Component XA-3-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-2 as of any date of determination.
"Component XA-3-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-3 as of any date of determination.
"Component XA-3-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-4 as of any date of determination.
"Component XA-3-5": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-5 as of any date of determination.
"Component XA-AB-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-AB-1 as of any date of determination.
"Component XA-AB-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-AB-2 as of any date of determination.
"Component XA-AB-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-AB-3 as of any date of determination.
"Component XA-AB-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-AB-4 as of any date of determination.
"Component XA-AB-5": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-AB-5 as of any date of determination.
"Component XA-4-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-4-1 as of any date of determination.
"Component XA-4-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-4-2 as of any date of determination.
"Component XA-J": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-J as of any date of determination.
"Component XB": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LB as of any date of determination.
"Component XC": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LC as of any date of determination.
"Component XD": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LD as of any date of determination.
"Component XE-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-1 as of any date of determination.
"Component XE-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-2 as of any date of determination.
"Component XE-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-3 as of any date of determination.
"Component XF-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-1 as of any date of determination.
"Component XF-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-2 as of any date of determination.
"Component XF-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-3 as of any date of determination.
"Component XF-4": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-4 as of any date of determination.
"Component XG-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LG-1 as of any date of determination.
"Component XG-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LG-2 as of any date of determination.
"Component XH-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LH-1 as of any date of determination.
"Component XH-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LH-2 as of any date of determination.
"Component XH-3": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LH-3 as of any date of determination.
"Component XJ-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-1 as of any date of determination.
"Component XJ-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-2 as of any date of determination.
"Component XK-1": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LK-1 as of any date of determination.
"Component XK-2": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LK-2 as of any date of determination.
"Component XL": One of the 63 components of the Class XC
Certificates and one of the 57 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LL as of any date of determination.
"Component XM": One of the 63 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component XN": One of the 63 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component XO": One of the 63 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component XP": One of the 63 components of the Class XC
Certificates and having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation (in the case of the Bank of America Center Mortgage Loan, to the
extent any portion of such amounts received by the Master Servicer or Special
Servicer pursuant to the Bank of America Center Intercreditor Agreement),
exclusive of any portion thereof required to be released to the related
Mortgagor or any other third-party in accordance with applicable law and/or the
terms and conditions of the related Loan documents or any other applicable
document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": The CS Control Appraisal Period and/or
the RP Control Appraisal Period, individually or collectively, as the context
requires.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Senior Certificates being treated as a single Class for
this purpose) that has a then outstanding Class Principal Balance at least equal
to 25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Controlling Class Optionholder": The Purchase Option held by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(c).
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Wells Fargo Center, Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479-0113, Corporate Trust Services (CMBS) BACM 2004-5,
and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland
21045, Attention: Corporate Trust Services Group (CMBS), Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2004-5, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Loan": Any Loan that had been a Specially Serviced Loan
but as to which all Servicing Transfer Events have ceased to exist in accordance
with clauses (w) through (z) of the definition of "Servicing Transfer Event"
other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Corresponding RP Component Mortgage Loan Subordinate Component" and
"Corresponding Class of Class RP Certificates": The related RP Component
Mortgage Loan Subordinate Components and Class of Class RP Certificates set
forth below:
RP Component
Mortgage Loan Corresponding
Subordinate Class of Class
Component RP Certificates
------------- ---------------
RP-1 Class RP-1
RP-2 Class RP-2
RP-3 Class RP-3
RP-4 Class RP-4
|
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other Loan.
"CS Component Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. GA20413.
"CS Component Mortgage Loan Accrued Component Interest": In respect
of the CS Component Mortgage Loan Components for each Distribution Date, an
amount equal to one calendar month's interest at the applicable interest rate
for each CS Component Mortgage Loan Component, which in the case of the CS
Component Mortgage Loan Senior Component is equal to 5.42569642857143% per annum
and in the case of the CS Component Mortgage Loan Subordinate Component is equal
to the Pass-Through Rate of the Class CS Certificates.
"CS Component Mortgage Loan Available Distribution Amount": With
respect to the CS Component Mortgage Loan and any Distribution Date, an amount
equal to (a) the balance on deposit in the Distribution Account as of 11:30 a.m.
(New York City time) on such Distribution Date (or such later time on such date
as of which distributions are made on the Certificates) relating to the CS
Component Mortgage Loan, any P&I Advances made by the Master Servicer or the
Trustee to cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed due during the related Collection Period with respect to the CS
Component Mortgage Loan, and any Compensating Interest Payments made by the
Master Servicer to cover Prepayment Interest Shortfalls incurred during the
related Collection Period with respect to the CS Component Mortgage Loan, and
for the Distribution Date occurring in each March, the related Withheld Amounts
remitted to the Component Mortgage Loan REMIC Distribution Account pursuant to
Section 4.05 with respect to the CS Component Mortgage Loan; net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to the CS Component Mortgage Loan that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period with respect to the CS Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or reimbursable to any Person from the
Component Mortgage Loan REMIC Distribution Account pursuant to any of clauses
(ii) through (vi) of Section 3.05(b), (v) any amounts deposited into the
Component Mortgage Loan REMIC Distribution Account in error, (vi) any amounts
payable or reimbursable to any Person from the Certificate Account pursuant to
clauses (ii) through (xx) of Section 3.05(a) and (vii) with respect to the CS
Component Mortgage Loan and any Distribution Date relating to the one-month
period preceding the Distribution Date in each February (and in any January of a
year that is not a leap year), an amount equal to the related Withheld Amount
pursuant to Section 4.05; and (c) provided that the CS Component Mortgage Loan
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i) and (b)(ii) of this definition.
"CS Component Mortgage Loan Component": Each of the CS Component
Mortgage Loan Senior Component and the CS Component Mortgage Loan Subordinate
Component.
"CS Component Mortgage Loan Component Principal Entitlement": In the
absence of a monetary event of default or other material event of default under
the CS Component Mortgage Loan principal will be paid on the CS Component
Mortgage Loan Senior Component and the CS Component Mortgage Loan Subordinate
Component, pro rata (in accordance with their respective outstanding principal
balances). If any of the events of default referred to in the prior sentence
exists with respect to the CS Component Mortgage Loan, principal will be paid
first to the CS Component Mortgage Loan Senior Component until its outstanding
principal balance is reduced to zero, and then to the CS Component Mortgage Loan
Subordinate Component, until the principal balance of such Component is reduced
to zero. Accordingly, the "CS Component Mortgage Loan Component Principal
Entitlement" with respect to any CS Component is (a) prior to the occurrence of
any event of monetary default or other material event of default under the CS
Component Mortgage Loan, an amount equal to such CS Component's pro rata share
of the CS Component Mortgage Loan Principal Distribution Amount and (b) after
the occurrence of any of event of monetary default or other material event of
default under the CS Component Mortgage Loan, an amount equal to the lesser of
(i) the outstanding principal balance of such CS Component and (ii) the portion
of the Class CS Component Mortgage Loan Principal Distribution Amount remaining
after giving effect to all distributions of higher priority on such Distribution
Date.
"CS Component Mortgage Loan Current Principal Distribution Amount":
For any Distribution Date will, in general, equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the CS Component Mortgage Loan for the
related Due Date occurring during the related Collection Period;
(ii) all Principal Prepayments received on the CS Component Mortgage
Loan during the related Collection Period;
(iii) with respect to the CS Component Mortgage Loan if its Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (exclusive of any Principal Prepayment and any
amount described in clause (iv) below) that was made by or on behalf of
the related Mortgagor during the related Collection Period, net of any
portion of such payment that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or the
principal portion of any Assumed Monthly Payment deemed due, in respect of
the CS Component Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(iv) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds, Condemnation Proceeds and REO Revenues received on or
in respect of the CS Component Mortgage Loan during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof, in each case net of any portion of such
amounts that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of
any Assumed Monthly Payment deemed due, in respect of the CS Component
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered.
"CS Component Mortgage Loan Principal Distribution Amount": With
respect to any Distribution Date, the aggregate of the CS Component Mortgage
Loan Current Principal Distribution Amount for such Distribution Date and, if
such Distribution Date is subsequent to the initial Distribution Date, the
excess, if any, of the CS Component Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the CS Component Mortgage Loan Senior Component and the Class
CS Certificates on the preceding Distribution Date.
"CS Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial ownership interest in the Component
Mortgage Loan REMIC issued hereunder and designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set forth in the Preliminary Statement
hereto.
"CS Component Mortgage Loan Senior Balance": With respect to the CS
Component Mortgage Loan Senior Component, the principal balance of the CS
Component Mortgage Loan Senior Component outstanding from time to time which, as
of the Closing Date is equal to the amount set forth in the Preliminary
Statement. On each Distribution Date, the CS Component Mortgage Loan Senior
Balance shall be reduced by the amount of any distributions of principal
allocated to CS Component Mortgage Loan REMIC Senior Regular Interest on such
Distribution Date pursuant to Section 4.01(j)(ii) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the CS Component Mortgage Loan
allocated to any Class of Sequential Pay Certificates on such Distribution Date
pursuant to Section 4.04. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses in respect of the CS
Component Mortgage Loan previously allocated to any Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the CS Component Mortgage Loan Senior Balance.
"CS Component Mortgage Loan Senior Component": One of the two CS
Component Mortgage Loan Components, represented by the CS Component Mortgage
Loan REMIC Senior Regular Interest.
"CS Component Mortgage Loan Senior Component Principal Distribution
Amount": As defined in Section 4.01(j)(ii).
"CS Component Mortgage Loan Subordinate Balance": The principal
amount of the CS Component Mortgage Loan Subordinate Component outstanding from
time to time which, on any date, shall equal the Class Principal Balance of the
Class CS Certificates on such date. On each Distribution Date, the CS Component
Mortgage Loan Subordinate Balance shall be reduced by the amount of any
distributions of principal allocated to the Class CS Certificates on such
Distribution Date pursuant to Section 4.01(j)(v) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the CS Component Mortgage Loan
allocated to the Class CS Certificates on such Distribution Date pursuant to
Section 4.04(a).
"CS Component Mortgage Loan Subordinate Component": The undivided
subordinate ownership interest in the Component Mortgage Loan REMIC, represented
by the Class CS Certificates.
"CS Control Appraisal Period": If the outstanding principal balance
of the CS Component Mortgage Loan Subordinate Component of the CS Component
Mortgage (net of any Appraisal Reduction Amounts, principal payments, Realized
Losses and unreimbursed Additional Trust Fund Expenses) is less than 25% of its
original principal balance.
"CS Controlling Class": As of any date of determination, the
outstanding Class CS Certificates.
"CS Controlling Class Holder": As defined in Section 3.29.
"CS Controlling Holder": With respect to any date of determination
(a) prior to the occurrence of a CS Control Appraisal Period, the CS Controlling
Class Holder and (b) during the occurrence and the continuance of a CS Control
Appraisal Period, the Directing Certificateholder.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.03) equal
to the aggregate of, without duplication (excluding, (i) except with respect to
clause (5) below, any amounts received in respect of the CS Component Mortgage
Loan and (ii) except with respect to clause (6) below, any amounts received in
respect of the RP Component Mortgage Loan):
(1) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the Mortgage Loans and any REO Loans for
their respective Due Dates occurring during the related Collection Period;
(2) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(3) with respect to any Balloon Loan that is included in the Trust
Fund, as to which the related Stated Maturity Date occurred during or
prior to the related Collection Period, any payment of principal
(exclusive of any Principal Prepayment and any amount described in
sub-clause (4) below) that was made by or on behalf of the related
Mortgagor during the related Collection Period, net of any portion of such
payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of
any Assumed Monthly Payment deemed due, in respect of such Balloon Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered;
(4) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds, Condemnation Proceeds and REO Revenues received on or
in respect of the Mortgage Loans during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal thereof, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Monthly Payment
(other than a Balloon Payment) due, or of the principal portion of any
Assumed Monthly Payment deemed due, in respect of any such Mortgage Loan
on a Due Date during or prior to the related Collection Period and not
previously recovered;
(5) the CS Component Mortgage Loan Senior Component Principal
Distribution Amount; and
(6) the RP Component Mortgage Loan Senior Component Principal
Distribution Amount.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of
either.
"Cut-off Date": November 1, 2004.
"Cut-off Date Balance": With respect to any Majority Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off Date, net of all unpaid payments of principal due in respect thereof
on or before such date. With respect to the Bank of America Center Mortgage
Loan, the outstanding principal balance of the Bank of America Center Pari Passu
Note A-3 as of the Cut-off Date, net of all unpaid payments of principal due in
respect thereof on or before such date. With respect to the CS Component
Mortgage Loan, the outstanding principal balance of the CS Component Mortgage
Loan Senior Component as of the Cut-off Date. With respect to the RP Component
Mortgage Loan, the outstanding principal balance of the RP Component Mortgage
Loan Senior Component as of the Cut-off Date.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and calculated without regard to any cross
collateralization feature of such Mortgage Loan, the ratio of (x) the Net Cash
Flow (before payment of any debt service on such Mortgage Loan) generated by the
related Mortgaged Property or Mortgaged Properties during the most recently
ended period of not more than 12 months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for such Mortgage Loan as of such date
of determination, multiplied by the number of months represented in the
financial statements. The Master Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Mortgage Loans are secured by multiple Mortgaged Properties;
provided, however, that for purposes of determining Debt Service Coverage Ratio
compliance, calculations shall be made at the Mortgage Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums that represent interest in excess of interest accrued on the
principal balance of such Loan (or REO Loan) at the related Mortgage Rate, such
excess interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": A Mortgage Loan or Companion Loan (i)
that is delinquent 60 days or more in respect to a Monthly Payment (not
including the Balloon Payment); (ii) that is more than 60 days delinquent in
respect of its Balloon Payment unless (w) the related Borrower is actively
seeking a refinancing commitment, (x) the related Borrower continues to make
payments in the amount of its Monthly Payment, (y) the Directing
Certificateholder consents and (z) the related Mortgagor has delivered to the
Master Servicer, on or before the 60th day after the Due Date of such Balloon
Payment, a refinancing commitment reasonably acceptable to the Master Servicer,
for such longer period, not to exceed 120 days beyond the Due Date of such
Balloon Payment, during which the refinancing would occur (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage Loan), in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note; or
(iii) as to which the Master Servicer or Special Servicer has, by written notice
to the related Mortgagor, accelerated the maturity of the indebtedness evidenced
by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that was not cured
in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": Shall mean a Defective Mortgage Loan that
is repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which such Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is ING Clarion Commercial Mortgage Securitization
Fund, L.P.
"Directly Operate": With respect to any REO Property (other than any
REO Property related to the Bank of America Center Mortgage Loan), the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of an REO Property pursuant to Section
3.18, the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by REMIC I or the Component Mortgage
Loan REMIC other than through an Independent Contractor; provided, however, that
the Special Servicer (or any Sub-Servicer on behalf of the Special Servicer)
shall not be considered to Directly Operate an REO Property solely because the
Special Servicer (or any Sub-Servicer on behalf of the Special Servicer)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to, or funds, repairs or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in conjunction with leasing
activity).
"Disqualified Non-U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a 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": For any Distribution Date with
respect to any Class of REMIC II Regular Certificates, the Class CS Certificates
and any Class of Class RP Certificates, the Accrued Certificate Interest in
respect of such Class of Certificates for such Distribution Date, reduced (to
not less than zero) by that portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocated to such Class of
Certificates as set forth below. Except with respect to Net Aggregate Prepayment
Interest Shortfalls allocated to the Class CS Certificates and any Class of
Class RP Certificates as described below, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, pro rata, to
each Class of REMIC II Regular Certificates based on Accrued Certificate
Interest for each such Class of Certificates for such Distribution Date. The Net
Aggregate Prepayment Interest Shortfall for the CS Component Mortgage Loan, if
any, for each Distribution Date shall be allocated, first, to the Class CS
Certificates, up to an amount equal to the lesser of any such Net Aggregate
Prepayment Interest Shortfall and any Accrued Certificate Interest in respect of
the Class CS Certificates for such Distribution Date; and, thereafter, if and to
the extent that any portion of such Net Aggregate Prepayment Interest Shortfall
remains unallocated, to the CS Component Mortgage Loan REMIC Senior Regular
Interest and among the REMIC II Regular Certificates as described above. The Net
Aggregate Prepayment Interest Shortfall for the RP Component Mortgage Loan, if
any, for each Distribution Date shall be allocated, first, to the Class RP
Certificates in reverse sequential order, up to an amount equal to the lesser of
any such Net Aggregate Prepayment Interest Shortfall and any Accrued Certificate
Interest in respect of the particular Class of Class RP Certificates for such
Distribution Date; and, thereafter, if and to the extent that any portion of
such Net Aggregate Prepayment Interest Shortfall remains unallocated, to the RP
Component Mortgage Loan REMIC Senior Regular Interest and among the REMIC II
Regular Certificates as described above.
"Distributable CS Component Mortgage Loan Certificate Interest": In
respect of the CS Component Mortgage Loan Components an amount equal to the CS
Component Mortgage Loan Accrued Component Interest in respect of each CS
Component Mortgage Loan Component reduced by such component's allocable share of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date.
"Distributable RP Component Mortgage Loan Certificate Interest": In
respect of the RP Component Mortgage Loan Components an amount equal to the RP
Component Mortgage Loan Accrued Component Interest in respect of each RP
Component Mortgage Loan Component reduced by such component's allocable share of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Wells Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-5, Distribution
Account".
"Distribution Date": The tenth day of any month, or if such tenth
day is not a Business Day, the Business Day immediately following, commencing in
December 2004.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent global
certificates that represents the Certificates sold in reliance on Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such Loan had been
scheduled to be first due; and (iii) any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Moody's, and "AA-" by S&P (or "A-" by S&P if such depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the deposits are to be
held in the account for more than 30 days) (or if such account is maintained
with PNC Bank, National Association, rated no less that "A" by Moody's and with
respect to S&P meets the requirements set forth in clause (i)), or the
short-term unsecured debt obligations of which are rated no less than "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), in each case, at any time funds are on deposit therein, (ii) a
segregated trust account or accounts maintained with the corporate trust
department of a federally chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to the regulations regarding fiduciary funds on deposit therein under 12
C.F.R. ss.9.10(b) that has a combined capital surplus of at least $50,000,000,
(iii) a segregated trust account or accounts maintained with the corporate trust
department of a state chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 C.F.R. ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, or (iv) any other account that would not result
in the downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by either Rating Agency to any Class of Certificates (as confirmed in
writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions in effect with respect to such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class O and Class P; provided, that any such Certificate (a) will
cease to be considered an ERISA Restricted Certificate and (b) will cease to be
subject to the transfer restrictions contained in Section 5.02(c) if, as of the
date of a proposed transfer of such Certificate, either (i) it is rated in one
of the four highest generic ratings categories by a Rating Agency or (ii)
relevant provisions of ERISA would permit transfer of such Certificate to a
Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or its successor in such capacity.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Loan in full, (ii) all unpaid Advance
Interest on any related Advances, and (iii) any related Liquidation Fee.
"Excess Liquidation Proceeds Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "Wells Fargo Bank, N.A., as Trustee, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-5, Excess Liquidation Proceeds Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit Q attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as described in
Section 5.02(l).
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Mortgage Loan or REO Property (other
than a Mortgage Loan that is paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that is repurchased or replaced by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and Sale
Agreement or purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 9.01), that there has
been a recovery of all related Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that will ultimately be
recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"GACC": German American Capital Corporation.
"GECC": General Electric Capital Corporation.
"GECC Loans": Each Mortgage Loan and its related Companion Loan, if
any, identified on the Mortgage Loan Schedule as having been transferred by
GECC.
"GECC Primary Servicer": GEMSA.
"GECC Primary Servicer Event of Default": Each of the Events of the
Default listed under Section 7.01(a), (vi), (vii), (viii), (ix), (x), (xi),
(xii) and/or (xiii) if any such Event of Default is committed by the GECC
Primary Servicer with respect to the GECC Loans.
"GEMSA": GEMSA Loan Services, L.P. and its successors in interest.
"GEMSA Sub-Servicing Agreement": The Sub-Servicing Agreement between
the Master Servicer and GEMSA.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls (i.e.
"PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification that would, if classified as unusable, be included in the
foregoing definition.
"Holder": See the definition of "Certificateholder" in this Section
1.01.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"ICG Portfolio A Note": With respect to the ICG Portfolio Mortgage
Loan, the related Mortgage Note that is included in the Trust.
"ICG Portfolio A/B Loan": With respect to ICG Portfolio Mortgage
Loan, such Mortgage Loan together with the ICG Portfolio B Note. References
herein to the ICG Portfolio A/B Loan shall be construed to refer to the
aggregate indebtedness under the ICG Portfolio A Note and the ICG Portfolio B
Note.
"ICG Portfolio B Note": With respect to the ICG Portfolio A/B Loan,
the related Mortgage Note not included in the Trust, which is subordinated in
right of payment to the ICG Portfolio A Note to the extent set forth in the ICG
Portfolio Co-Lender Agreement.
"ICG Portfolio B Noteholder": The holder of the ICG Portfolio B
Note.
"ICG Portfolio Co-Lender Agreement": With respect to the ICG
Portfolio A/B Loan, the intercreditor agreement by and between the holder of the
ICG Portfolio A Note and the holder of the ICG Portfolio B Note relating to the
relative rights of such holders of the ICG Portfolio A Note and ICG Portfolio B
Note, as the same may be further amended from time to time in accordance with
the terms thereof.
"ICG Portfolio Mortgage Loan": The Mortgage Loan identified as Loan
No. 760032545 in the Mortgage Loan Schedule, which, together with the ICG
Portfolio B Note, is secured by a Mortgage on the ICG Portfolio Mortgaged
Property.
"ICG Portfolio Mortgaged Property": With respect to the
corresponding ICG Portfolio A/B Loan, the property that secures such ICG
Portfolio A/B Loan.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof as an officer, employee, promoter, initial purchaser, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof, as the case may be; provided, further, that such ownership constitutes
less than 1% of the total assets owned by such Person.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to the Component Mortgage Loan REMIC or REMIC I, as
applicable, within the meaning of Section 856(d)(3) of the Code if the Component
Mortgage Loan REMIC or REMIC I were a real estate investment trust (except that
the ownership test set forth in that section shall be considered to be met by
(i) any Person that owns, directly or indirectly, 35 percent or more of any
Class of Certificates, or such other interest in any Class of Certificates as is
set forth in an Opinion of Counsel, which shall not be an expense of the
Trustee, the REMIC Administrator or the Trust, delivered to the Trustee and the
REMIC Administrator), so long as the Component Mortgage Loan REMIC or REMIC I,
as applicable, does not receive or derive any income from such Person and
provided that the relationship between such Person and the Component Mortgage
Loan REMIC or REMIC I, as applicable, is at arm's length, all within the meaning
of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person upon
receipt by the Trustee and the REMIC Administrator of an Opinion of Counsel,
which shall be at no expense to the Trustee, the REMIC Administrator or the
Trust, 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, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Initial Class X Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of the Closing
Date equal to $1,362,129,068 and with respect to the Class XP Certificates, the
initial Class XP Notional Amount thereof as of the Closing Date equal to
$1,331,702,000.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, Class CS Certificates or Class RP Certificates, the
initial Class Principal Balance thereof as of the Closing Date, in each case as
set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Purchaser": Each of Banc of America Securities LLC and
Deutsche Bank Securities Inc.
"Initial Resolution Period": As defined in Section 2.03(c).
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or REO Property, any
hazard insurance policy, seismic (earthquake) insurance policy, business
interruption insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such Loan
(or the related Mortgaged Property) or in respect of such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related Loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any Component Mortgage Loan REMIC Regular
Interest, any REMIC I Regular Interest, or any Class of REMIC II Regular
Certificates, consisting of one of the following: (i) a 30/360 Basis; or (ii) an
Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of Component
Mortgage Loan REMIC Regular Interests, each Class of REMIC I Regular Interests
and each Class of REMIC II Regular Certificates for any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
"Interest Reserve Account": The segregated account or sub-account of
the Certificate Account created and maintained by the Master Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be entitled
"Bank of America, N.A. on behalf of Wells Fargo Bank, N.A., as Trustee, in trust
for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-5, Interest Reserve
Account".
"Interested Person": The Depositor, each Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise that represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Loan due or deemed due, as the case may be, for a Due Date in a previous
Collection Period, or for a Due Date coinciding with or preceding the Cut-off
Date, and not previously received or recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise that represent late collections
of the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of the related Loan or
of an Assumed Monthly Payment in respect of such REO Loan due or deemed due, as
the case may be, for a Due Date in a previous Collection Period and not
previously received or recovered.
"Letter of Credit": With respect to any Loan, any third-party letter
of credit delivered by or at the direction of the Mortgagor pursuant to the
terms of such Loan in lieu of the establishment of, or deposit otherwise
required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Loan, any of the following
events: (i) such Loan is paid in full; (ii) a Final Recovery Determination is
made with respect to such Loan; (iii) such Loan (or related REO Loan) is
repurchased by the related Mortgage Loan Seller pursuant to Section 4 of the
related Mortgage Loan Purchase and Sale Agreement; (iv) such Loan is purchased
by the Directing Certificateholder or the Special Servicer pursuant to Section
3.18(c); (v) such Loan is purchased by the Bank of America Center Controlling
Holder (if the related Defaulted Mortgage Loan is the Bank of America Center
Whole Loan) pursuant to the Bank of America Center Pooling Agreement; or (vi)
such Loan is purchased by the Special Servicer or the Master Servicer pursuant
to Section 9.01. With respect to any REO Property (and the related REO Loan),
any of the following events: (i) a Final Recovery Determination is made with
respect to such REO Property or (ii) such REO Property is purchased by the
Master Servicer or the Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property pursuant to Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan
(other than the Bank of America Center Mortgage Loan) or REO Property (other
than any REO Property related to the Bank of America Center Mortgage Loan) or
any Mortgage Loan repurchased by the related Mortgage Loan Seller after the
applicable "Initial Resolution Period" or "Resolution Extension Period" as
defined and set forth in Section 4(c) of the related Mortgage Loan Purchase and
Sale Agreement, the fee designated as such and payable to the Special Servicer
pursuant to the third paragraph of Section 3.11(c). Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class, the ICG Portfolio B Noteholder (if
the related Defaulted Mortgage Loan is the ICG Portfolio Mortgage Loan), the
Summit Place Apartments B Noteholder (if the related Defaulted Mortgage Loan is
the Summit Place Apartments Mortgage Loan), the CS Controlling Holder (if the
related Defaulted Mortgage Loan is the CS Component Mortgage Loan) or the RP
Controlling Holder (if the related Defaulted Mortgage Loan is the RP Component
Mortgage Loan), as applicable, pursuant to any applicable purchase right set
forth in Section 3.18(c), (l), (m) or (n) of this Agreement or with respect to a
purchase of a related Defaulted Mortgage Loan at its fair market value as
determined in Section 3.18, unless such purchase (i) is by an assignee of the
Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignee is not an affiliate of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignment is for no material
consideration, and such purchase occurs or purchase right is exercised more than
90 days from the date that the Special Servicer has initially determined the
fair market value of the related mortgage loan, or (ii) is by the ICG Portfolio
B Noteholder (if the related Defaulted Mortgage Loan is the ICG Portfolio
Mortgage Loan), the Summit Place Apartments B Noteholder (if the related
Defaulted Mortgage Loan is the Summit Place Apartments Mortgage Loan), the CS
Controlling Holder (if the related Defaulted Mortgage Loan is the CS Component
Mortgage Loan) or the RP Controlling Holder (if the related Defaulted Mortgage
Loan is the RP Component Mortgage Loan) and such purchase occurs or purchase
right is exercised more than 90 days from the date that the Special Servicer has
initially determined the fair market value of the related mortgage loan, (b) the
purchase option of the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 9.01 of this
Agreement or (c) the repurchase by the related Mortgage Loan Seller of a
Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the
related Mortgage Loan Purchase and Sale Agreement and Section 2.03 of this
Agreement within the time frame set forth in the Initial Resolution Period
and/or the Resolution Extension Period (if applicable) provided that such time
frame shall never be less than 90 days from the date that such Mortgage Loan
Seller was first notified of its obligation to repurchase pursuant to Section 4
of the related Mortgage Loan Purchase and Sale Agreement and Section 3.18(l) of
this Agreement.
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related Mortgage Loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Mortgage Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(d), by the
CS Controlling Holder pursuant to Section 3.18(l), by the RP Controlling Holder
pursuant to Section 3.18(l) or by any Companion Loan Noteholder pursuant to the
related Co-Lender Agreement; (iv) the repurchase of a Mortgage Loan by the
related Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and
Sale Agreement; (v) the substitution of one or more Replacement Mortgage Loans
for a Deleted Mortgage Loan by the related Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase and Sale Agreement (such cash amounts being any
Substitution Shortfall Amounts); or (vi) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01.
"Loan": Any Mortgage Loan, Bank of America Center Companion Loan or
Companion Loan.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Pairs": The ICG Portfolio A/B Loan and the Summit Place
Apartments A/B Loan.
"Loan Pair Custodial Account": With respect to the Loan Pairs, the
segregated account or accounts created and maintained by the Master Servicer
pursuant to Section 3.04(e) on behalf of the ICG Portfolio Noteholders and the
Summit Place Apartments Noteholders, which shall be entitled "Bank of America,
N.A., as Master Servicer, in trust for the ICG Portfolio A/B Loan Noteholders,
as their interests may appear" and "Bank of America, N.A., as Master Servicer,
in trust for the Summit Place Apartments A/B Loan Noteholders, as their
interests may appear", as applicable. Any such account shall at all times be an
Eligible Account.
"Loan Pair Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the related
Loan Pair Custodial Account as of the commencement of business on such Master
Servicer Remittance Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any unscheduled payments of principal
(including, without limitation, Principal Prepayments, Liquidation Proceeds and
Insurance Proceeds) received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period), (iv) any amounts payable or reimbursable to any Person from the related
Loan Pair Custodial Account pursuant to any of clauses (ii) through (xix) of
Section 3.05(f), (v) any Excess Liquidation Proceeds, and (vi) any amounts
deposited into the related Loan Pair Custodial Account in error; provided that,
with respect to the Master Servicer Remittance Date that occurs in the same
calendar month as the Final Distribution Date, the Loan Pair Remittance Amount
will be calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of
this definition.
"Loan Pair REO Account": As defined in Section 3.16(b).
"Loan Specific Controlling Class Holders": As defined in Section
3.29.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box agreement, if any, between the related originator and the Borrower,
pursuant to which an account created pursuant to the related Mortgage Loan
documents to receive revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Majority Mortgage Loan": All of the Mortgage Loans other
than the CS Component Mortgage Loan and the RP Component Mortgage
Loan.
"Master Servicer": Bank of America, N.A., its successor in interest
or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments, and interest, Liquidation Proceeds
and Insurance Proceeds) received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xix) of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that, with respect to the
Master Servicer Remittance Date that occurs in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan, the
fee payable to the Master Servicer pursuant to Section 3.11(a) and from which
any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
(and any related REO Loan), the Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule less the Trustee Fee Rate; (b) with
respect to the ICG Portfolio B Note and any related REO Loan, the Master
Servicing Fee Rate shall be the same as the Master Servicing Fee Rate for the
ICG Portfolio Mortgage Loan; and (c) with respect to the Summit Place Apartments
B Note and any related REO Loan, the Master Servicing Fee Rate shall be the same
as the Master Servicing Fee Rate for the Summit Place Apartments Mortgage Loan.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates or such Mortgage Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates or such Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": Each of the mezzanine
intercreditor agreements by and between the initial Mortgagee (any successor in
interest) of the related Mortgage Loan and the holder of the related Mezzanine
Loan.
"Mezzanine Loan": Each of the mezzanine loans related to the Bank of
America Center Mortgage Loan, the Ocean Residences Mortgage Loan and/or the CS
Component Mortgage Loan, individually and/or collectively, as the context may
require.
"Mezzanine Loan Holder": With respect to any Mezzanine Loan, the
holder or obligee thereof.
"Modified Loan": Any Loan as to which any Servicing Transfer Event
has occurred and that has been modified by the Special Servicer pursuant to
Section 3.20 in a manner that:
(1) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Loan);
(2) except as expressly contemplated by the related Loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(3) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to each Collection Period, a report prepared by the Master Servicer, in
a format reasonably acceptable to the Special Servicer and the Trustee, that
identifies the following with respect to such Collection Period, in all cases
both on a loan-by-loan basis and in the aggregate:
(a) the amount of any Advance (and accrued and unpaid Advance
Interest thereon) that became a Workout-Delayed Reimbursement Amount during such
Collection Period;
(b) (i) the amount of any Workout-Delayed Reimbursement Amount that
was reimbursed to the Master Servicer, the Special Servicer or the Trustee
during such Collection Period, (ii) the extent to which any reimbursement of a
Workout-Delayed Reimbursement Amount made during such Collection Period was made
from amounts in the Certificate Account allocable to principal during the
Collection Period as contemplated by Section 3.05(a), and (iii) the extent to
which any reimbursement of a Workout-Delayed Reimbursement Amount made during
such Collection Period was made from amounts in the Certificate Account
allocable to principal on the remainder of the Loans during such Collection
Period as contemplated by Section 3.05(a);
(c) the amount of any Workout-Delayed Reimbursement Amount that
arose in a prior Collection Period that was not reimbursed to the Master
Servicer, the Special Servicer or the Trustee in the current or a prior
Collection Period but that became a Nonrecoverable Advance in the current
Collection Period;
(d) the amount of any Advance (and accrued and unpaid Advance
Interest thereon), other than an amount described in clause (c) above, that
became a Nonrecoverable Advance during such Collection Period;
(e) (i) the amount of any Nonrecoverable Advance (and accrued and
unpaid Advance Interest thereon) that was reimbursed to the Special Servicer or
the Trustee during the current Collection Period, and (ii) the extent (if any)
to which any reimbursement of a Nonrecoverable Advance (and accrued and unpaid
Advance Interest thereon) was made from amounts allocable to principal during
such Collection Period as contemplated by Section 3.05(a);
(f) the amount of any Advance reimbursed to the Master Servicer, the
Special Servicer or the Trustee as a Nonrecoverable Advance in a prior
Collection Period that was recovered from the related Mortgagor or otherwise
from the proceeds of the related Mortgage Loan or REO Property on behalf of the
Trust during the current Collection Period (notwithstanding that it was
previously determined to constitute a Nonrecoverable Advance); and
(g) a reconciliation of Advance Interest accrued on any
Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance, any Default
Charges collected during the related Collection Period and the amount of Default
Charges that were applied to pay such Advance Interest.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the Master Servicer and
shall not constitute a responsibility of any other party. Each CMSA Loan
Periodic Update File prepared by the Master Servicer shall be accompanied by a
Monthly Additional Report on Recoveries and Reimbursements. Notwithstanding
anything in this Agreement that suggests otherwise, the Master Servicer shall
not be required to deliver a Monthly Additional Report on Recoveries and
Reimbursements (and no CMSA Loan Periodic Update File need be accompanied by any
such report) with respect to any Collection Period for which all of the entries
in the report would be "zero" or "not applicable" or with respect to any
Collection Period for which the information that would otherwise be included in
the Monthly Additional Report on Recoveries and Reimbursements in included in
the CMSA Investor Reporting Package.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment of principal
and/or interest on such Loan, including, without limitation, a Balloon Payment,
that is actually payable by the related Mortgagor from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law).
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.02 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of Wells
Fargo Bank, N.A., as Trustee for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2004-5, without recourse" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost, a
lost note affidavit and indemnity from the applicable Mortgage Loan Seller
with a copy of such Mortgage Note; (B) in the case of each Companion Loan,
a copy of the executed Mortgage Note for such Companion Loan; and (C) in
the case of the Bank of America Center Mortgage Loan, an original of the
Bank of America Center Pari Passu Note A-3;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv) of this
definition, in each case (unless the particular item has not been returned
from the applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
of this definition, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of recording
indicated thereon;
(iv) subject to the provisos at the end of this paragraph, an
original executed assignment of the Mortgage, in favor of "Wells Fargo
Bank, N.A., as Trustee for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2004-5" or in blank, in recordable form (except for any missing
recording information with respect to such Mortgage) and in the case of
each Loan Pair, also to Wells Fargo Bank, N.A. in its capacity as "lead
lender" on behalf of the holders of the related Companion Loans; provided
that, if the related Mortgage has not been returned from the applicable
public recording office, such assignment of Mortgage may exclude the
information to be provided by the recording office; and provided, further,
if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be
prepared or delivered and instead, the Master Servicer shall take all
actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown as,
the owner of the related Mortgage on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in favor
of "Wells Fargo Bank, N.A., as Trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-5" or in blank, in recordable form (except for
any missing recording information with respect to such Assignment of
Leases) and in the case of each Loan Pair, also to Wells Fargo Bank, N.A.
in its capacity as "lead lender" or on behalf of the holders of the
related Companion Loan; provided that if the related Mortgage 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 prepared or
delivered and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the
related Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS;
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been modified or
the Mortgage Loan has been assumed, in each case (unless the particular
item has not been returned from the applicable recording office) with
evidence of recording indicated thereon if the instrument being modified
or assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as binding and
countersigned by the issuer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter;
(viii) filed copies of any prior UCC Financing Statements in favor
of the originator of such Mortgage Loan or in favor of any assignee prior
to the Trustee (but only to the extent the Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, in connection with such UCC Financing Statements, an original UCC-2
or UCC-3, as appropriate, in favor of Wells Fargo Bank, N.A., as Trustee
for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-5 or in blank,
in a form that is complete and suitable for filing or recording, and
sufficient to assign to the Trustee the security interest held by the
originator of the Mortgage Loan or its assignee; provided, if the related
Mortgage Loan has been recorded in the name of MERS or its designee, no
UCC Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Master Servicer shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, 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;
(ix) the original or a copy of any environmental indemnity agreement
relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty, loan
agreement, Ground Lease and/or Ground Lease estoppels relating to such
Mortgage Loan;
(xi) any original documents (including any security agreement(s))
relating to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar agreement
relating to such Mortgage Loan and a copy of any Letter of Credit;
(xiii) with respect to any Companion Loan, a copy of each related
Companion Loan note and, with respect to the Bank of America Center
Mortgage Loan, a copy of the Bank of America Center Companion Note A-1 and
the Bank of America Center Companion Note A-2;
(xiv) with respect to the Bank of America Center Mortgage Loan, a
copy of the Bank of America Center Pooling Agreement;
(xv) with respect to hospitality properties, a copy of the franchise
agreement, an original copy of the comfort letter and any transfer
documents with respect to such comfort letter, if any; and
(xvi) a list attached to each Mortgage File indicating the documents
to be included in each such Mortgage File (the "Mortgage Loan Checklist")
which list may be modified within 180 days by the related Mortgage Loan
Seller after the Closing Date to correct any errors in accordance with
Section 2.02(e);
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received; provided, further, however, that
on the Closing Date, with respect to item (iv), the Depositor has delivered to
the Trustee a copy of such assignment of Mortgage in blank and has caused the
Master Servicer to retain the completed assignment of Mortgage for recording as
described below, unless such Mortgage has been recorded in the name of MERS or
its designee.
Notwithstanding the foregoing with respect to the Bank of America
Center Mortgage Loan, the preceding document delivery requirements shall be
deemed to be met by the delivery by the related Mortgage Loan Seller of copies
of the documents specified above (other than the Bank of America Center Pari
Passu Note A-3 (and all intervening endorsements) evidencing the Bank of America
Center Mortgage Loan, with respect to which the originals shall be required),
including a copy of the Mortgage securing the Bank of America Center Mortgage
Loan.
Notwithstanding the foregoing, if any of the above-described
documents is not delivered with respect to any Mortgage Loan because such
document has been submitted for recording, and neither such document nor a copy
thereof, in either case with evidence of recording thereon, can be obtained
because of delays on the part of the applicable recording office, then the
related Mortgage Loan Seller will not be required to repurchase (or cause the
repurchase of) the related affected Mortgage Loan on the basis of such missing
document so long as such Mortgage Loan Seller continues in good faith to attempt
to obtain such document or such copy and the missing document does not
constitute a Material Document Defect. In the event that the related Mortgage
Loan Seller fails to deliver such above-referenced documents for a period of 18
months, then the Master Servicer and the Special Servicer will have the right to
obtain such above-referenced documents directly and to recover any costs and
expenses from the related Mortgage Loan Seller (or from the Trust if the
Mortgage Loan Seller fails to reimburse the Master Servicer and the Special
Servicer, as applicable, within 90 days); provided, however, that the related
Mortgage Loan Seller shall remain liable to reimburse the Trust for any such
costs and expenses).
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of Mortgage
File.
"Mortgage Loan Purchase and Sale Agreements": The Mortgage
Loan Purchase and Sale Agreement dated as of November 23, 2004 between Bank
of America and the Depositor, the Mortgage Loan Purchase and Sale Agreement
dated as of November 23, 2004 between GACC and the Depositor and the Mortgage
Loan Purchase and Sale Agreement dated as of November 23, 2004 between GECC
and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number, the control number and the trust mortgage loan
identification number;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date and (b)
whether the Mortgage Loan accrues interest on an Actual/360 Basis or a
30/360 Basis;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (other than with respect to Loans that are
interest only for some or all of their respective loan terms then in such
case the amortizing debt service);
(ix) the Administrative Fee Rate (inclusive of the Master Servicer
Fee Rate, the Trustee Fee Rate, and the Primary Servicing Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related Mortgaged
Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) the applicable grace period; and
(xvi) the applicable Loan Group to which such Mortgage Loan belongs.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Sellers": Bank of America, GACC, GECC and their
respective successors and assigns.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include the Bank of America
Center Companion Loans, the ICG Portfolio B Note, the Summit Place Apartments B
Note or any related REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) above determined
without regard to the passage of such Stated Maturity Date, and (iii) any REO
Loan, the annualized rate described in clause (i) or (ii) above, as applicable,
determined as if the related Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean, collectively, all the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Fee": As defined in Section 3.08.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, the Default Charges referred to in clause fifth of Section 3.27(a) and
Section 3.27(c), which is payable to the Master Servicer as Additional Master
Servicing Compensation or the Special Servicer as Additional Special Servicing
Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment that is incurred solely as a
result of the insolvency of the federally or state chartered depository
institution or trust company that holds such Investment Account so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds received with respect to any Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Fee": As defined in Section 3.20(i).
"Net Modification Application Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Majority Mortgage Loan, the
CS Component Mortgage Loan Senior Component, the RP Component Mortgage Loan
Senior Component or any REO Loan, as of any date of determination, a rate per
annum equal to the related Mortgage Rate then in effect, or in the case of the
CS Component Mortgage Loan Senior Component, a per annum rate equal to
5.42569642857143%, or in the case of the RP Component Mortgage Loan Senior
Component, a per annum rate equal to 4.66866476923077%, in each case minus the
related Administrative Fee Rate. With respect to any Companion Loan or successor
REO Loan as of any date of determination a per annum rate equal to the Mortgage
Rate then in effect minus the related Administrative Fee Rate. With respect to
each of the CS Component Mortgage Loan Subordinate Component and the RP
Component Mortgage Loan Subordinate Components, the Net Mortgage Rate set forth
for such Component Mortgage Loan Subordinate Component in the table below. For
purposes of calculating the Pass-Through Rate for each Class of Certificates
(other than the Residual Certificates) from time to time, the Net Mortgage Rate
for any Mortgage Loan will be calculated without regard to any modification,
waiver or amendment of the terms of such Mortgage Loan subsequent to the Closing
Date.
CS Component Mortgage
Loan Subordinate Component Net Mortgage Rate
-------------------------- -----------------
CS 4.995%
RP Component Mortgage
Loan Subordinate Component Net Mortgage Rate
-------------------------- -----------------
RP-1 4.398%
RP-2 4.575%
RP-3 4.624%
RP-4 5.016%
|
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property for a specified
period, minus the total fixed and variable operating expenses incurred in
respect of such Mortgaged Property (subject to adjustments for, and excluding,
among other things, (i) non-cash items such as depreciation and amortization,
(ii) capital expenditures (inclusive of replacement reserves) and (iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property (other than any REO Property
related to the Bank of America Center Mortgage Loan) entered into at the
direction of the Special Servicer on behalf of the Trust, including any lease
renewed, modified or extended on behalf of the Trust, if the Trust has the right
to renegotiate the terms of such lease.
"Non-Partitioned Loans": Each Loan, other than the Bank of America
Center Mortgage Loan, the CS Component Mortgage Loan and the RP Component
Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class CS, Class RP-1, Class
RP-2, Class RP-3, Class RP-4, Class R-I and Class R-II Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c): (A)
any P&I Advance previously made or to be made in respect of any Loan or any REO
Loan that, as determined by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, in reasonable, good faith judgment, based on at least
an Appraisal conducted within the 12 months preceding any such determination,
will not be ultimately recoverable from Default Charges, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such Mortgage Loan; provided, however, that the Special Servicer may,
at its option, in consultation with the Directing Certificateholder, make a
determination in accordance with the Servicing Standards, that any P&I Advance
previously made or proposed to be made is a Nonrecoverable P&I Advance and shall
deliver to the Servicer and the Trustee notice of such determination and any
such determination shall be conclusive and binding on the Master Servicer and
the Trustee and (B) any Bank of America Center Nonrecoverable P&I Advance
(including interest thereon calculated in accordance with the Bank of America
Center Pooling Agreement). The determination as to the recoverability of any
principal or interest advance previously made or proposed to be made in respect
of the Bank of America Center Mortgage Loan shall be made by the Bank of America
Center Master Servicer, the Bank of America Center Special Servicer or the Bank
of America Center Trustee, as the case may be, pursuant to the Bank of America
Center Pooling Agreement. Any such determination made by the Bank of America
Center Master Servicer, the Bank of America Center Special Servicer or the Bank
of America Center Trustee, as the case may be, shall be conclusive and binding
on the Certificateholders and may, in all cases, be conclusively relied upon by
the Trustee.
"Nonrecoverable Servicing Advance": (A) Any Servicing Advance made
or proposed to be made in respect of a Loan or REO Property that, as determined
by the Master Servicer or, if applicable, the Special Servicer or the Trustee in
reasonable and good faith judgment, will not be recoverable (together with
Advance Interest accrued thereon), or that in fact was not ultimately recovered,
from Default Charges, Insurance Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Loan or REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors);
provided, however, that the Special Servicer may, at its option, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the Master Servicer and the Trustee notice of such
determination and any such determination shall be conclusive and binding on the
Master Servicer and the Trustee and (B) any Bank of America Center
Nonrecoverable Servicing Advance (including interest thereon calculated in
accordance with the Bank of America Center Pooling Agreement). The determination
as to the recoverability of any servicing advance previously made or proposed to
be made in respect of the Bank of America Center Mortgage Loan shall be made by
the Bank of America Center Master Servicer, the Bank of America Center Special
Servicer or the Bank of America Center Trustee, as the case may be, pursuant to
the Bank of America Center Pooling Agreement. Any such determination made by the
Bank of America Center Master Servicer, the Bank of America Center Special
Servicer or the Bank of America Center Trustee, as the case may be, shall be
conclusive and binding on the Certificateholders and may, in all cases, be
conclusively relied upon by the Trustee.
"Ocean Residences Mortgage Loan": The Mortgage Loan identified on
the Mortgage Loan Schedule as Loan No. GA20599.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, a Responsible Officer of the
Trustee or any authorized officer of a Mortgage Loan Seller, as the case may be.
"Operating Advisor": With respect to any Mortgage Loan, the advisor
elected pursuant to Section 3.29 hereof.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": 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": As to any Loan or REO Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, the rate per annum specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto. With respect to the Class XC
and Class XP Certificates, for any Distribution Date, the Class XC Pass-Through
Rate and Class XP Pass-Through Rate, respectively. With respect to the Class CS
Certificates, for any Distribution Date, the Class CS Pass-Through Rate. With
respect to any Class of Class RP Certificates, for any Distribution Date, the
related Class RP Pass-Through Rate.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date and past any applicable grace period for such Monthly Payment as of the
Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class CS Certificates or the Class RP Certificates), the priority of
the Holders thereof in respect of the Holders of the other Classes of
Certificates to receive distributions out of the Available Distribution Amount
for any Distribution Date. The Payment Priority of the respective Classes of
Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates; second, the Class A-J Certificates; third, Class
B Certificates; fourth, the Class C Certificates; fifth, the Class D
Certificates; sixth, the Class E Certificates; seventh, the Class F
Certificates; eighth, the Class G Certificates; ninth, the Class H Certificates;
tenth, the Class J Certificates; eleventh, the Class K Certificates; twelfth,
the Class L Certificates; thirteenth, the Class M Certificates; fourteenth, the
Class N Certificates; fifteenth, the Class O Certificates; sixteenth, the Class
P Certificates; and last, the respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, Class CS Certificate or Class RP Certificate, the portion of the
relevant Class evidenced by such Certificate, expressed as a percentage, the
numerator of which is the Certificate Principal Balance or Certificate Notional
Amount, as the case may be, of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the Initial Class
Principal Balance or Initial Class X Notional Amount, as the case may be, of the
relevant Class. With respect to a Residual Certificate, the percentage interest
in distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performance Certification": As defined in Section 8.13(c).
"Performing Loan": As of any date of determination, any Loan as to
which no Servicing Transfer Event then exists (in the case of a Corrected Loan,
in accordance with clauses (w) through (z) of the definition of "Servicing
Transfer Event").
"Performing Party": As defined in Section 8.13(c).
"Permitted Investments": Any one or more of the following
obligations:
(1) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(2) repurchase obligations with respect to any security described in
clause (a) above, provided that the long-term unsecured debt obligations
of the party agreeing to repurchase such obligations are rated "Aaa" by
Moody's and "AAA" by S&P;
(3) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"P-1" by Moody's and "A-1+" by S&P;
(4) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "P-1" by Moody's and "A-1+"
by S&P;
(5) units of money market funds that maintain a constant asset value
and that are rated in the highest applicable rating category by each of
S&P (i.e. "AAAm" or "AAAmG") and Moody's (or if not rated by Moody's a
confirmation from Moody's that such money market fund is acceptable); and
(6) any other obligation or security which would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates,
evidence of which shall be confirmed in writing by each Rating Agency to
the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment
described hereunder shall have a maturity in excess of one year; and provided,
further, that no investment described hereunder shall be liquidated prior to its
maturity date; and provided, further, that no investment described hereunder may
have an "r" highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect Mezzanine Loans
related to the CS Component Mortgage Loan, the Ocean Residences Mortgage Loan or
the Bank of America Center Mortgage Loan, any "qualified transferee" with
respect to which each Rating Agency has confirmed in writing that the holding of
the related Mezzanine Loan by such Person would not cause a qualification,
downgrade or withdrawal of any of such Rating Agency's then-current ratings on
the Certificates or that otherwise meets the qualifications set forth in the
related Mezzanine Intercreditor Agreement to be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Plan or a Person acting on behalf of or using the assets of a Plan,
a Disqualified Organization, a Disqualified Non U.S. Person or a U.S. Person
with respect to whom income on a Residual Certificate is attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person or any
nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society for Testing and Materials.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Lennar Partners, Inc., as Special Servicer, for the benefit of Wells
Fargo Bank, N.A., as Trustee, in trust for registered Holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2004-5, REO Account." Any such account or accounts shall be an Eligible Account.
"Post CAP Loan": Any of the Bank of America Center Mortgage Loan
following the occurrence and during the continuance of a Bank of America Center
Control Appraisal Period, the CS Component Mortgage Loan following the
occurrence and during the continuance of a CS Control Appraisal Period or the RP
Component Mortgage Loan following the occurrence and during the continuance of
an RP Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan is
prepaid prior to its Stated Maturity Date, such assumption to be used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the Component Mortgage Loan REMIC Senior Regular
Interests, the REMIC I Regular Interests, the REMIC II Certificates and the
Class CS and Class RP Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Loan that was
subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after such Loan's Due Date, any
payment of interest (net of related Master Servicing Fees and exclusive of
Prepayment Premiums) actually collected from the related Mortgagor from and
after such Due Date.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such Mortgage Loan plus the Trustee Fee Rate, on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the last day of such calendar month (or, in the case of the Mortgage Loan
with a Due Date on the 10th day of each calendar month, ending on the last day
of the related interest accrual period), inclusive. A Prepayment Interest
Shortfall in respect of the CS Component Mortgage Loan or the RP Component
Mortgage Loan shall be allocated as set forth in the definition of
"Distributable Certificate Interest".
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Florida.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates on
the preceding Distribution Date; provided that the Principal Distribution Amount
for any Distribution Date shall be reduced by the amount of any reimbursements
of (i) Nonrecoverable Advances plus interest on such Nonrecoverable Advances
that are paid or reimbursed from principal collections on the Mortgage Loans in
a period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date and
(ii) Workout-Delayed Reimbursement Amounts plus interest on such amounts that
are paid or reimbursed from principal collections on the Mortgage Loans in a
period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date;
provided, further, that in the case of clauses (i) and (ii) above, if any of the
amounts that were reimbursed from principal collections on the Mortgage Loans
are subsequently recovered on the related Mortgage Loan, such recovery will
increase the Principal Distribution Amount for the Distribution Date related to
the period in which such recovery occurs.
"Principal Prepayment": Any voluntary payment of principal made by
the Mortgagor on a Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement dated
November 8, 2004, relating to the Class A-1, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class A-J, Class XP, Class B, Class C and Class D
Certificates, that is a supplement to the Base Prospectus.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan (other than the
Bank of America Center Mortgage Loan), a price equal to the unpaid principal
balance of the Mortgage Loan as of the date of purchase, together with (a) all
accrued and unpaid interest on the Mortgage Loan at the related Mortgage Rate up
to but not including the Due Date in the Collection Period of purchase, (b) all
related unreimbursed Master Servicing Fees, Special Servicing Fees, Trustee Fees
and Servicing Advances that are unreimbursed from related collections on such
Mortgage Loan, (c) all accrued and unpaid Advance Interest in respect of related
Advances, (d) any Additional Trust Fund Expenses in respect of such Mortgage
Loan (including any Additional Trust Fund Expenses previously reimbursed or paid
by the Trust Fund but not so reimbursed by the related Mortgagor or other party
or from Insurance Proceeds or Condemnation Proceeds or otherwise), (e)
Liquidation Fees (if any) payable in connection with a purchase of a Mortgage
Loan and (f) any cost, fees and expenses of enforcement (including attorneys
fees) of a repurchase obligation pursuant to Section 2.03(h) of this Agreement.
With respect to any REO Property (other than any REO Property related to the
Bank of America Center Mortgage Loan), a price equal to the unpaid principal
balance of the related REO Loan as of the date of purchase, together with (a)
all accrued and unpaid interest on such REO Loan at the related Mortgage Rate to
but not including the Due Date in the Collection Period of purchase, (b) all
related unreimbursed Master Servicing Fees, Special Servicing Fees, Trustee Fees
and Servicing Advances that are unreimbursed from related collections on such
Mortgage Loan, (c) all related unreimbursed Servicing Advances, (d) all accrued
and unpaid Advance Interest in respect of related Advances, (e) any Additional
Trust Fund Expenses in respect of such REO Property (other than any REO Property
related to the Bank of America Center Mortgage Loan) (including any Additional
Trust Fund Expenses previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or other party or from Insurance Proceeds or
Condemnation Proceeds or otherwise), (f) Liquidation Fees (if any) payable in
connection with a purchase of a Mortgage Loan and (g) any cost, fees and
expenses of enforcement (including attorneys fees) of a repurchase obligation
pursuant to Section 2.03 of this Agreement. The Purchase Price of any Mortgage
Loan or REO Property (other than any REO Property related to the Bank of America
Center Mortgage Loan) is intended to include, without limitation, principal and
interest previously advanced with respect thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgage Loan, Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution: (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on a 30/360 Basis); (v) has a remaining
term to stated maturity not greater than, and not more than two years less than,
that of the Defective Mortgage Loan and, in any event, has a maturity date not
later than two years prior to the Rated Final Distribution Date; (vi) has a then
current loan-to-value ratio not higher than, and a then current debt service
coverage ratio not lower than, the loan-to-value ratio and debt service coverage
ratio, respectively, of the Defective Mortgage Loan as of the Closing Date;
(vii) has comparable prepayment restrictions to those of the Defective Mortgage
Loan; (viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement; (ix) has a
Phase I Environmental Assessment and a property condition report relating to the
related Mortgaged Property in its Servicing File, which Phase I Environmental
Assessment will evidence that there is no material adverse environmental
condition or circumstance at the related Mortgaged Property for which further
remedial action may be required under applicable law, and which property
condition report will evidence that the related Mortgaged Property is in good
condition with no material damage or deferred maintenance; and (x) constitutes a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided, however, that if more than one mortgage loan is to be
substituted for any Defective Mortgage Loan, then all such proposed Replacement
Mortgage Loans shall, in the aggregate, satisfy the requirement specified in
clause (i) of this definition and each such proposed Replacement Mortgage Loan
shall, individually, satisfy each of the requirements specified in clauses (ii)
through (x) of this definition; and provided, further, that no mortgage loan
shall be substituted for a Defective Mortgage Loan unless (x) such prospective
Replacement Mortgage Loan shall be acceptable to the Directing Certificateholder
(or, if there is no Directing Certificateholder then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by, and at
the expense of, the related Mortgage Loan Seller effecting such substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
other than Class CS Certificates and the Class RP Certificates, the Distribution
Date in November 2041. As to each of the Class CS Certificates and the Class RP
Certificates, the Distribution Date in September 2016.
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to each Defaulted Mortgage Loan (other
than the Bank of America Center Mortgage Loan) as to which a Final Recovery
Determination has been made, or with respect to any REO Loan (other than any REO
Loan related to the Bank of America Center Mortgage Loan) as to which a Final
Recovery Determination has been made as to the related REO Property, an amount
(not less than zero) equal to (i) the unpaid principal balance of such Loan or
REO Loan, as the case may be, as of the Due Date related to the Collection
Period in which the Final Recovery Determination was made, plus (ii) all accrued
but unpaid interest on such Mortgage Loan or REO Loan, as the case may be, at
the related Mortgage Rate to but not including the Due Date related to the
Collection Period in which the Final Recovery Determination was made, plus (iii)
any related unreimbursed Servicing Advances as of the commencement of the
Collection Period in which the Final Recovery Determination was made, together
with any new related Servicing Advances made during such Collection Period,
minus (iv) all payments and proceeds, if any, received in respect of such
Collection Period related to the Loan or REO Loan, as the case may be, during
the Collection Period in which such Final Recovery Determination was made (net
of any related Liquidation Expenses paid therefrom).
With respect to any Loan as to which any portion of the outstanding
principal or accrued interest owed thereunder was forgiven in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of such
principal or past due interest (other than any Default Interest) so forgiven.
With respect to any Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction, if any, in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
With respect to the Bank of America Center Mortgage Loan, Realized
Losses shall be calculated in accordance with the Bank of America Center Pooling
Agreement. Such Realized Losses shall be allocated as provided in the Bank of
America Center Pooling Agreement and the Bank of America Center Intercreditor
Agreement.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit N
attached hereto.
"Regulation S Global Certificate": A global certificate representing
interests in a Class of Certificates as provided in Section 5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Release Date": The 40th day after the later of (i) the commencement
of the offering of the Certificates and (ii) the Closing Date.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Wells Fargo Bank, N.A., its successor in
interest, or any successor REMIC administrator appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Majority Mortgage Loans as from time to time are subject
to this Agreement and all payments under and proceeds of such Mortgage Loans
received or receivable after the Cut-off Date (other than payments of principal,
interest and other amounts due and payable on the Mortgage Loans on or before
the Cut-off Date), together with all documents, Escrow Payments and Reserve
Funds delivered or caused to be delivered hereunder by the related Mortgage Loan
Seller with respect to such Mortgage Loans; (ii) the CS Component Mortgage Loan
REMIC Senior Regular Interest and the RP Component Mortgage Loan REMIC Senior
Regular Interest; (iii) any REO Property acquired in respect of a Majority
Mortgage Loan and all payments and proceeds of such REO Property; (iv) the
rights of the Depositor under Sections 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20 and 21 of the Mortgage Loan Purchase and Sale Agreements with respect to
such Mortgage Loans; and (v) such amounts on or with respect to clauses (i) or
(iii) as from time to time are deposited into the Distribution Account, the
Certificate Account, the Interest Reserve Account and the REO Account (if
established) and the Excess Liquidation Proceeds Account (if established), and
in the case of a Loan Pair, to the extent of the Trust's interest in each of the
foregoing.
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-5, REMIC I
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate, Class CS Certificate or Class RP Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-5, REMIC II
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to REMICs which appear at Sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and temporary and final Treasury
regulations (or proposed regulations that would apply by reason of their
proposed effective date to the extent not inconsistent with temporary or final
regulations) and any rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property (other
than any REO Property related to the Bank of America Center Mortgage Loan),
gross income of the character described in Section 856(d) of the Code, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
(1) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(2) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(3) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(4) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(5) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": The Pool REO Account and/or a Loan Pair REO Account,
as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan (other than the Bank of America Center Mortgage Loan) or in the
case of a Loan Pair, any of the Loans comprising such Loan Pair. Each REO Loan
shall be deemed to provide for monthly payments of principal and/or interest
equal to its Assumed Monthly Payment and otherwise to have the same terms and
conditions as the predecessor Mortgage Loan. Each REO Loan shall be deemed to
have an initial unpaid principal balance and Stated Principal Balance equal to
the unpaid principal balance and Stated Principal Balance, respectively, of the
predecessor Mortgage Loan as of the date of the related REO Acquisition. In
addition, all Monthly Payments (other than any Balloon Payment), Assumed Monthly
Payments (in the case of a Balloon Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Loan. In addition, Nonrecoverable Advances (including interest on such
Nonrecoverable Advances) and Workout-Delayed Reimbursement Amounts with respect
to such REO Loan that were reimbursed from collections on the Mortgage Loans and
resulted in principal distributed to the Certificateholders being reduced as a
result of the first proviso of the definition of "Principal Distribution
Amount", shall be deemed outstanding until recovered or until a Final Recovery
Determination is made. All amounts payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee in respect of the related Mortgage
Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, the
Special Servicer or the Trustee in respect of such Advances, shall continue to
be payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee as the case may be, in respect of an REO Loan. If the Loans comprising
the ICG Portfolio A/B Loan become REO Loans, amounts received by the Trust with
respect to such REO Loans shall be applied to amounts due and owing in respect
of such REO Loans as provided in Section 4 of the ICG Portfolio Co-Lender
Agreement. If the Loans comprising the Summit Place Apartments A/B Loan become
REO Loans, amounts received by the Trust with respect to such REO Loans shall be
applied to amounts due and owing in respect of such REO Loans as provided in
Section 4 of the Summit Place Apartments Co-Lender Agreement. Collections in
respect of each REO Loan (exclusive of the amounts to be applied to the payment
of, or to be reimbursed to the Master Servicer or the Special Servicer for the
payment of, Servicing Fees, Special Servicing Fees, Additional Master Servicing
Compensation, Additional Special Servicing Compensation, Liquidation Fees, the
costs of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of Nonrecoverable Advances
(including interest on such Nonrecoverable Advance) and Workout-Delayed
Reimbursed Amounts with respect to such REO Loan, that were reimbursed from
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso of the
definition of "Principal Distribution Amount"; second, as a recovery of accrued
and unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, in accordance with the Servicing
Standard of the Master Servicer or the Special Servicer, as applicable, as a
recovery of any other amounts due and owing in respect of such REO Loan; and
fifth, as a recovery of any other amounts deemed to be due and owing in respect
of the related REO Loan, in that order. If the Bank of America Center Mortgage
Loan becomes an "REO Loan" under the Bank of America Center Pooling Agreement,
the treatment of the foregoing amounts with respect to the Bank of America
Center Mortgage Loan shall be subject to the terms of the Bank of America Center
Intercreditor Agreement and the Bank of America Center Pooling Agreement.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
(and, in the case of the Bank of America Center Mortgage Loan, the beneficial
interest of the Trust Fund in the Bank of America Center Whole Loan Mortgaged
Property if it is acquired by the Bank of America Center Special Servicer, for
the benefit of the Certificateholders and the related Bank of America Center
Companion Loan Noteholders, as their interests may appear) (and, in the case of
a related Mortgaged Property securing a Loan Pair, for the benefit of the
Certificateholders and the related Companion Loan Noteholders, as their
interests may appear) pursuant to Section 3.09 through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"Replacement Mortgage Loan" Any mortgage loan that is substituted by
the related Mortgage Loan Seller for a Defective Mortgage Loan as contemplated
by Section 2.03.
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Moody's ("A2" or better), S&P
("A" or better) and A.M. Best ("A: VIII" or better) or any insurance carrier
backed or guaranteed by an insurer with such required ratings; provided,
however, that a rating by A.M. Best shall be disregarded and shall not be
applicable as one of the two required ratings except with respect to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer and then
only to the extent in force as of the Closing Date. Notwithstanding the
preceding sentence, an insurance carrier with lower or fewer claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying Ratings" if
the applicable Rating Agency has confirmed in writing that such insurance
carrier shall not result, in and of itself, in a downgrading, withdrawal or
qualification (if applicable) of the then current rating assigned by such Rating
Agency to any Class of Certificates, unless, with respect to policies maintained
by borrowers, a higher claims-paying ability rating is required under any of the
Mortgage Loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the related Mortgage
Loan Seller of written notice from the Master Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the related Mortgage Loan Seller of written notice from the
Master Servicer or the Special Servicer of the occurrence of such
Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero days;
provided, however, that if the related Mortgage Loan Seller did not
receive written notice from the Master Servicer or the Special Servicer of
the relevant Servicing Transfer Event as of the commencement of the
applicable Initial Resolution Period, then such Servicing Transfer Event
shall be deemed to have occurred during such Initial Resolution Period and
the immediately preceding clause (iii) of this definition will be deemed
to apply.
In addition, the related Mortgage Loan Seller shall have an
additional 90 days to cure such Material Document Defect or Material Beach,
provided that such Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach and
such failure to cure is solely the result of a delay in the return of documents
from the local filing or recording authorities.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"RP Component Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. GA20315.
"RP Component Mortgage Loan Accrued Component Interest": In respect
of the RP Component Mortgage Loan Components for each Distribution Date an
amount equal to one calendar month's interest at the applicable interest rate
for each RP Component Mortgage Loan Component which in the case of the RP
Component Mortgage Loan Senior Component is equal to 4.66866476923077% per annum
and in the case of the RP Component Mortgage Loan RP-A Component, the RP
Component Mortgage Loan RP-B Component, the RP Component Mortgage Loan RP-C
Component and the RP Component Mortgage Loan RP-D Component, respectively, is
equal to the Pass-Through Rate of the Class RP-1, Class RP-2, Class RP-3 and
Class RP-4 Certificates, respectively.
"RP Component Mortgage Loan Available Distribution Amount": With
respect to the RP Component Mortgage Loan and any Distribution Date, an amount
equal to (a) the balance on deposit in the Distribution Account as of 11:30 a.m.
(New York City time) on such Distribution Date (or such later time on such date
as of which distributions are made on the Certificates) relating to the RP
Component Mortgage Loan, any P&I Advances made by the Master Servicer or the
Trustee to cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed due during the related Collection Period with respect to the RP
Component Mortgage Loan, and any Compensating Interest Payments made by the
Master Servicer to cover Prepayment Interest Shortfalls incurred during the
related Collection Period with respect to the RP Component Mortgage Loan, and
for the Distribution Date occurring in each March, the related Withheld Amounts
remitted to the Component Mortgage Loan REMIC Distribution Account pursuant to
Section 4.05 with respect to the RP Component Mortgage Loan; net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to the RP Component Mortgage Loan that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period with respect to the RP Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or reimbursable to any Person from the
Component Mortgage Loan REMIC Distribution Account pursuant to any of clauses
(ii) through (vi) of Section 3.05(b), (v) any amounts deposited into the
Component Mortgage Loan REMIC Distribution Account in error, (vi) any amounts
payable or reimbursable to any Person from the Certificate Account pursuant to
clauses (ii) through (xx) of Section 3.05(a) and (vii) with respect to the RP
Component Mortgage Loan and any Distribution Date relating to the one-month
period preceding the Distribution Date in each February (and in any January of a
year that is not a leap year), an amount equal to the related Withheld Amount
pursuant to Section 4.05; and (c) provided that the RP Component Mortgage Loan
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i) and (b)(ii) of this definition.
"RP Component Mortgage Loan Component": Each of the RP Component
Mortgage Loan Senior Component, the RP Component Mortgage Loan RP-A Component,
the RP Component Mortgage Loan RP-B Component, the RP Component Mortgage Loan
RP-C Component and the RP Component Mortgage Loan RP-D Component.
"RP Component Mortgage Loan Component Principal Entitlement": In the
absence of a monetary event of default or other material event of default under
the RP Component Mortgage Loan principal will be paid on the RP Component
Mortgage Loan Senior Component and the RP Component Mortgage Loan RP-A
Component, RP Component Mortgage Loan RP-B Component, RP Component Mortgage Loan
RP-C Component and RP Component Mortgage Loan RP-D Component, pro rata (in
accordance with their respective outstanding principal balances). If any of the
events of default referred to in the prior sentence exists with respect to the
RP Component Mortgage Loan, principal will be paid first to the RP Component
Mortgage Loan Senior Component until its outstanding principal balance is
reduced to zero and then sequentially to each of the RP Component Mortgage Loan
RP-A Component, RP Component Mortgage Loan RP-B Component, RP Component Mortgage
Loan RP-C Component, and RP Component Mortgage Loan RP-D Component until the
principal balance of each such Component is reduced to zero. Accordingly, the
"RP Component Mortgage Loan Component Principal Entitlement" with respect to any
RP Component is (a) prior to the occurrence of any event of monetary default or
other material event of default under the RP Component Mortgage Loan, an amount
equal to such RP Component's pro rata share of the RP Component Mortgage Loan
Principal Distribution Amount and (b) after the occurrence of any of event of
monetary default or other material event of default under the RP Component
Mortgage Loan, an amount equal to the lesser of (i) the outstanding principal
balance of such RP Component and (ii) the portion of the Class RP Component
Mortgage Loan Principal Distribution Amount remaining after giving effect to all
distributions of higher priority on such Distribution Date.
"RP Component Mortgage Loan Current Principal Distribution Amount":
For any Distribution Date will, in general, equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the RP Component Mortgage Loan for the
related Due Date occurring during the related Collection Period;
(ii) all Principal Prepayments received on the RP Component Mortgage
Loan during the related Collection Period;
(iii) with respect to the RP Component Mortgage Loan if its Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (exclusive of any Principal Prepayment and any
amount described in clause (iv) below) that was made by or on behalf of
the related Mortgagor during the related Collection Period, net of any
portion of such payment that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or the
principal portion of any Assumed Monthly Payment deemed due, in respect of
the RP Component Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(iv) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds, Condemnation Proceeds and REO Revenues received on or
in respect of the RP Component Mortgage Loan during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal of the RP Component Mortgage Loan, in each case
net of any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment deemed
due, in respect of the RP Component Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"RP Component Mortgage Loan Principal Distribution Amount": With
respect to any Distribution Date, the aggregate of the RP Component Mortgage
Loan Current Principal Distribution Amount for such Distribution Date and, if
such Distribution Date is subsequent to the initial Distribution Date, the
excess, if any, of the RP Component Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the RP Component Mortgage Loan Senior Component and the Class
RP Certificates on the preceding Distribution Date.
"RP Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial ownership interest in the Component
Mortgage Loan REMIC issued hereunder and designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set forth in the Preliminary Statement
hereto.
"RP Component Mortgage Loan Senior Balance": With respect to the RP
Component Mortgage Loan Senior Component, the principal balance of the RP
Component Mortgage Loan Senior Component outstanding from time to time which, as
of the Closing Date is equal to the amount set forth in the Preliminary
Statement. On each Distribution Date, the RP Component Mortgage Loan Senior
Balance shall be reduced by the amount of any distributions of principal
allocated to RP Component Mortgage Loan REMIC Senior Regular Interest on such
Distribution Date pursuant to Section 4.01(k)(ii) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the RP Component Mortgage Loan
allocated to any Class of Sequential Pay Certificates on such Distribution Date
pursuant to Section 4.04. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses in respect of the RP
Component Mortgage Loan previously allocated to any Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the RP Component Mortgage Loan Senior Balance.
"RP Component Mortgage Loan Senior Component": One of the four RP
Component Mortgage Loan Components represented by the RP Component Mortgage Loan
REMIC Senior Regular Interest.
"RP Component Mortgage Loan Senior Component Principal Distribution
Amount": As defined in Section 4.01(k)(ii).
"RP Component Mortgage Loan RP-A Component": One of the four RP
Component Mortgage Loan Components and that corresponds to the Class RP-A
Certificates.
"RP Component Mortgage Loan RP-B Component": One of the four RP
Component Mortgage Loan Components and that corresponds to the Class RP-B
Certificates.
"RP Component Mortgage Loan RP-C Component": One of the four RP
Component Mortgage Loan Components and that corresponds to the Class RP-C
Certificates.
"RP Component Mortgage Loan RP-D Component": One of the four RP
Component Mortgage Loan Components and that corresponds to the Class RP-D
Certificates.
"RP Component Mortgage Loan Subordinate Balance": With respect to
each RP Component Mortgage Loan Subordinate Component, the aggregate principal
amount of RP Component Mortgage Loan Subordinate Components outstanding from
time to time which, on any date, shall equal the Class Principal Balance of the
Corresponding Class RP Certificates on such date. On each Distribution Date,
such RP Component Mortgage Loan Subordinate Balance shall be reduced by the
amount of any distributions of principal allocated to the Corresponding Class RP
Certificates on such Distribution Date pursuant to Section 4.01(k)(v), (viii),
(xi), (xiv), or 9.01, as applicable, and shall be further reduced by the amount
of any Realized Losses and Additional Trust Fund Expenses incurred with respect
to the RP Component Mortgage Loan allocated to the Corresponding Class of Class
RP Certificates on such Distribution Date pursuant to Section 4.04(a).
"RP Component Mortgage Loan Subordinate Component": Any of the
undivided subordinate ownership interests in the Component Mortgage Loan REMIC
represented by each of the Class RP-1, Class RP-2, Class RP-3 and Class RP-4
Certificates.
"RP Control Appraisal Period": If the outstanding aggregate
principal balance of all of the RP Component Mortgage Loan Subordinate
Components of the RP Component Mortgage (net of any Appraisal Reduction Amounts,
principal payments, Realized Losses and unreimbursed Additional Trust Fund
Expenses) is less than 25% of its original principal balance.
"RP Controlling Class": As of any date of determination, the
outstanding Class of Class RP Certificates with the lowest payment priority that
has a then outstanding Certificate Balance at least equal to 25% of its initial
Certificate Balance (or, if no Class of Class RP Certificates has a Certificate
Balance at least equal to 25% of its initial Certificate Balance, then the RP
Controlling Class shall be the outstanding Class of Class RP Certificates with
the then largest outstanding Class principal balance). The RP Controlling Class
as of the Delivery Date will be the Class RP-D Certificates.
"RP Controlling Class Holder": As defined in Section 3.29.
"RP Controlling Holder": With respect to any date of determination
(a) prior to the occurrence of an RP Control Appraisal Period, the RP
Controlling Class Holder, and (b) during the occurrence and the continuance of
an RP Control Appraisal Period, the Directing Certificateholder.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or its successor in interest. If neither S&P nor
any successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator,
and specific ratings of Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Certification": As defined in Section 8.13(b).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A, Class XC and Class XP Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates and Class A-1A Certificates outstanding
immediately prior to such Distribution Date exceeds the sum of (a) the aggregate
Stated Principal Balance of the Mortgage Pool (less the CS Component Mortgage
Loan Subordinate Component Balance of the CS Component Mortgage Loan Subordinate
Component and the aggregate RP Component Mortgage Loan Subordinate Component
Balance) that will be outstanding immediately following such Distribution Date,
plus (b) the lesser of (i) the Principal Distribution Amount for such
Distribution Date and (ii) the portion of the Available Distribution Amount for
such Distribution Date that will remain after the distributions of interest to
be made on the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates and Class A-1A
Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, 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 or Class P Certificate.
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Historical Liquidation Report, (v)
CMSA Comparative Financial Status Report, (vi) CMSA Servicer Watch List Report,
(vii) CMSA NOI Adjustment Worksheet, (viii) CMSA Operating Statement Analysis
Report, (ix) CMSA Loan Level Reserve-LOC Report, (x) CMSA Loan Periodic Update
File, (xi) CMSA Property File and (xii) CMSA Financial File.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any Mortgage Loan, all customary, reasonable and necessary "out of pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Loan
after a default, delinquency or other unanticipated event, or in connection with
the administration of any REO Property, including, but not limited to, the cost
of (a) compliance with the obligations of the Master Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Loan or REO Property, (d) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including, without limitation, foreclosures, and (e) the operation, management,
maintenance and liquidation of any REO Property; provided that notwithstanding
anything herein to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, or costs
incurred by either such party in connection with its purchase of any Loan or REO
Property pursuant to any provision of this Agreement. All Emergency Advances
made by the Master Servicer at the direction of the Special Servicer hereunder
shall be considered "Servicing Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan (other than the
Bank of America Center Mortgage Loan, for which there are no Special Servicing
Fees payable to the Special Servicer) and REO Loan (other than an REO Loan
related to the Bank of America Center Mortgage Loan, for which there are no
Special Servicing Fees payable to the Special Servicer), the Master Servicing
Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment, in the possession of the Master Servicer
or the Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the administration of any REO Property.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Mortgage Loans and in the case of a Loan Pair, the related Co-Lender
Agreement, to service and administer the Loans (excluding the Bank of America
Center Mortgage Loan) and any REO Properties for which such Person is
responsible hereunder: (a) with the same care, skill, prudence 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 Loans, the full collection of all Prepayment Premiums that may become
payable under the Loans and, in the case of the Special Servicer, if a Loan
comes into and continues in default and if, in the reasonable judgment of the
Special Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments (including payments of Prepayment Premiums), the
maximization of the recovery on such Loan to the Certificateholders, and, in the
case of a Loan Pair, on behalf of the related Companion Loan Noteholders as a
collective whole, on a net present value basis; and (c) without regard to: (i)
any known relationship that the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, may have
with the related Mortgagor or with any other party to this Agreement; (ii) the
ownership of any Certificate (or any security backed by the Bank of America
Center Companion Note A-1 or the Bank of America Center Companion Note A-2 or
any Companion Loan) by the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be; (iii) the
obligation of the Master Servicer to make Advances, (iv) the obligation of the
Special Servicer to direct the Master Servicer to make Servicing Advances; (v)
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; (vi) any ownership,
servicing and/or management by the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, of any
other mortgage loans or real property; and (vii) any obligation of the Master
Servicer or Special Servicer, or any affiliate thereof, to repurchase or
substitute for a Mortgage Loan as a Mortgage Loan Seller.
"Servicing Transfer Event" shall mean, with respect to any Loan
(other than the Bank of America Center Mortgage Loan) or Loan Pair, any of the
following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under the
related Mortgage Loan documents, which failure continues, or the Master Servicer
determines, in reasonable, good faith judgment, will continue, unremedied (i)
except in the case of a delinquent Balloon Payment, for 60 days beyond the date
on which the subject payment was due, and (ii) solely in the case of a
delinquent Balloon Payment (A) for one Business Day beyond the date such Balloon
Payment was due or (B) if the Borrower delivers a refinancing commitment to the
Master Servicer acceptable to both the Master Servicer and the Special Servicer
prior to the date the Balloon Payment was due, for 60 days beyond the date on
which the Balloon Payment was due (or, if earlier, when the refinancing
commitment terminates); or
(b) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good faith
judgment, that a default in the making of a Monthly Payment (including a Balloon
Payment) or any other material payment required under the related Mortgage Loan
documents is likely to occur within 30 days and either (i) the related Mortgagor
has requested a material modification of the payment terms of the Loan or (ii)
such default is likely to remain unremedied for at least the period contemplated
by clause (a) of this definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in reasonable, good faith
judgment, that a default, other than as described in clause (a) or (b) of this
definition, has occurred or is likely to occur that may materially impair the
value of the related Mortgaged Property as security for the Loan, which default
has continued or is likely to continue unremedied for the applicable cure period
under the terms of the Loan (or, if no cure period is specified, for 60 days);
or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the related
Mortgagor under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of its affairs, shall
have been entered against the related Mortgagor and such decree or order shall
have remained in force undismissed, undischarged or unstayed for 60 days; or
(e) the related Mortgagor shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(g) the Master Servicer or the Special Servicer shall have received
notice of the commencement of foreclosure or similar proceedings with respect to
the related Mortgaged Property.
Notwithstanding the foregoing, with respect to the ICG Portfolio B
Note and the Summit Place Apartments B Note, each shall be deemed to be a
Specially Serviced Mortgage Loan if the ICG Portfolio A Note and the Summit
Place Apartments A Note, respectively, becomes a Specially Serviced Mortgage
Loan and the ICG Portfolio A Note and the Summit Place Apartments A Note shall
each be deemed to be a Specially Serviced Mortgage Loan if the ICG Portfolio B
Note and the Summit Place Apartments B Note, respectively, becomes a Specially
Serviced Mortgage Loan. A Servicing Transfer Event with respect to a Mortgage
Loan or the ICG Portfolio B Note or the Summit Place Apartments B Note will
cease to exist:
(w) in the case of the circumstances described in clause (a) above,
if and when the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20);
(x) in the case of the circumstances described in clauses (b), (c)
(likely default), (d), (e) and (f) above, if and when such circumstances cease
to exist in the reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) (actual
default) above, if and when such default is cured in the reasonable, good faith
judgment of the Special Servicer;
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan (or (A) with respect to the ICG
Portfolio A Note and the Summit Place Apartments A Note, the ICG Portfolio B
Note and the Summit Place Apartments B Note, respectively, or (B) the ICG
Portfolio B Note and the Summit Place Apartments B Note, the ICG Portfolio A
Note and the Summit Place Apartments A Note, respectively) to continue to be
characterized as a Specially Serviced Mortgage Loan and provided no additional
default is foreseeable in the reasonable good faith judgment of the Special
Servicer.
With respect to the Bank of America Center Mortgage Loan, the occurrence of a
"Servicing Transfer Event" (as such term is defined in the Bank of America
Center Pooling Agreement).
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other Loans
and assets incidental to the ownership and operation of such Mortgaged Property
or Properties, and that has agreed, either in such organizational documents or
the loan documents relating to any related Loan, that it (a) does not engage in
any business unrelated to such property and the financing thereof; (b) does not
have any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case that are separate
and apart from the books, records and accounts of any other Person; (d) conducts
business in its own name; (e) does not guarantee or assume the debts or
obligations of any other person; (f) does not commingle its assets or funds with
those of any other Person; (g) transacts business with affiliates on an arm's
length basis; and (h) holds itself out as being a legal entity separate and
apart from any other Person. In addition, such entity's organizational documents
provide that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as applicable,
or the consent of an independent Person (whether as a partner, member, or
director in such entity or in any Person that is the managing member or general
partner of such entity or otherwise), and either such organizational documents
or the terms of the mortgage loan documents provide that such organizational
documents may not be amended without the consent of the lender as regards such
single-purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates, Class CS Certificates or Class RP
Certificates evidencing a $1,000 denomination or, in the case of a Class X
Certificate, a 100% Percentage Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders provided
they act in unanimity) holding 100% of the Class X, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates or an assignment of the
voting rights thereof; provided that the Class Principal Balances, as
applicable, of the Class A, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Lennar Partners, Inc., a Florida corporation,
its successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan (other than the Bank of America Center Mortgage Loan, for which there are
no Special Servicing Fees payable to the Special Servicer) and each REO Loan REO
Loan (other than an REO Loan related to the Bank of America Center Mortgage
Loan), the fee designated as such and payable to the Special Servicer pursuant
to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan (other than the Bank of America Center Mortgage Loan) and each REO
Loan REO Loan (other than an REO Loan related to the Bank of America Center
Mortgage Loan), 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Mortgage Loan (other than the Bank of
America Center Mortgage Loan) as to which there then exists a Servicing Transfer
Event. Upon the occurrence of a Servicing Transfer Event with respect to any
Loan, such Loan shall remain a Specially Serviced Loan until the earliest of (i)
its removal from the Trust Fund, (ii) an REO Acquisition with respect to the
related Mortgaged Property, and (iii) the cessation of all existing Servicing
Transfer Events with respect to such Loan in accordance with clauses (w) through
(z) of the definition of "Servicing Transfer Event".
"Startup Day": With respect to each of the Component Mortgage Loan
REMIC, REMIC I and REMIC II, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.03 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
With respect to any Companion Loan (and any successor REO Loan), a principal
amount initially equal to the Cut-off Date Balance of such Companion Loan, that
is permanently reduced (to not less than zero) by (i) all payments (or P&I
Advances in lieu thereof) of, and all other collections allocated as provided in
Section 1.03 to, principal of or with respect to such Companion Loan (or
successor REO Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to the related
Companion Loan Noteholders, and (ii) the principal portion of any Realized Loss
incurred in respect of such Companion Loan (or successor REO Loan) during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
In addition, to the extent that principal from general collections is used to
reimburse Nonrecoverable Advances or Work-out Delayed Reimbursement Amounts, and
such amount has reduced the Principal Distribution Amount, such amount shall not
reduce the Stated Principal Balance (other than for purposes of computing the
Weighted Average Net Mortgage Rate).
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified or amended.
"Subordinate Certificate": Any 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 or Class P Certificate or a Residual Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Successful Sub-Servicing Bidder" : As defined in Section 3.22(j).
"Summit Place Apartments A Note": With respect to the Summit Place
Apartments Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"Summit Place Apartments A/B Loan": With respect to Summit Place
Apartments Mortgage Loan, such Mortgage Loan together with the Summit Place
Apartments B Note. References herein to the Summit Place Apartments A/B Loan
shall be construed to refer to the aggregate indebtedness under the Summit Place
Apartments A Note and the Summit Place Apartments B Note.
"Summit Place Apartments B Note": With respect to the Summit Place
Apartments A/B Loan, the related Mortgage Note not included in the Trust, which
is subordinated in right of payment to the Summit Place Apartments A Note to the
extent set forth in the Summit Place Apartments Co-Lender Agreement.
"Summit Place Apartments B Noteholder": The holder of the Summit
Place Apartments B Note.
"Summit Place Apartments Co-Lender Agreement": With respect to the
Summit Place Apartments A/B Loan, the intercreditor agreement by and between the
holder of the Summit Place Apartments Mortgage Loan and the holder of the Summit
Place Apartments B Note relating to the relative rights of such holders of the
Summit Place Apartments A Note and Summit Place Apartments B Note, as the same
may be further amended from time to time in accordance with the terms thereof.
"Summit Place Apartments Mortgage Loan": The Mortgage Loan
identified as Loan No. 760032898 in the Mortgage Loan Schedule, which, together
with the Summit Place Apartments B Note, is secured by a Mortgage on the Summit
Place Apartments Mortgaged Property.
"Summit Place Apartments Mortgaged Property": With respect to the
corresponding Summit Place Apartments A/B Loan, the respective property or
properties that secures such Summit Place Apartments A/B Loan.
"Tax Matters Person": With respect to each of the Component Mortgage
Loan REMIC, REMIC I and REMIC II, the Person designated as the "tax matters
person" of such REMIC in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The "Tax Matters
Person" for each of the Component Mortgage Loan REMIC, REMIC I and REMIC II is
the Holder of Certificates evidencing the largest Percentage Interest in the
related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II due to
its classification as a REMIC under the REMIC Provisions, together with any and
all other information, reports or returns that may be required to be furnished
to the Certificateholders or filed with the IRS or any other governmental taxing
authority under any applicable provisions of federal or Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of the Component
Mortgage Loan REMIC, REMIC I and REMIC II.
"Trustee": Wells Fargo Bank, N.A., in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Loan (other than the
Bank of America Center Mortgage Loan) and REO Loan, calculated on the Stated
Principal Balance as of the Due Date in the immediately preceding Collection
Period and for the same number of days (i.e., on a 30/360 Basis or an Actual/360
Basis, as applicable) respecting which any related interest payment due on such
Loan or deemed to be due on such REO Loan is computed under the terms of the
related Mortgage Note (as such terms may be changed or modified at any time
following the Closing Date) and applicable law.
"Trustee Fee Rate": A rate of 0.00175% per annum.
"Trustee's Website": The website maintained by the Trustee and
initially located at "www.ctslink.com/cmbs", or at such other address as the
Trustee may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to the CS Component
Mortgage Loan REMIC Senior Regular Interest or the RP Component Mortgage Loan
REMIC Senior Regular Interest, for any Distribution Date, one month's interest
at the interest rate applicable to such CS Component Mortgage Loan REMIC Senior
Regular Interest or RP Component Mortgage Loan REMIC Senior Regular Interest, as
applicable, for such Distribution Date, accrued on the Uncertificated Principal
Balance of such CS Component Mortgage Loan REMIC Senior Regular Interest or RP
Component Mortgage Loan REMIC Senior Regular Interest, as applicable,
outstanding immediately prior to such Distribution Date. With respect to any
REMIC I Regular Interest, for any Distribution Date, one month's interest at the
REMIC I Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any CS Component Mortgage Loan
REMIC Senior Regular Interest, RP Component Mortgage Loan REMIC Senior Regular
Interest or REMIC I Regular Interest for any Distribution Date shall be deemed
to have accrued during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to the CS
Component Mortgage Loan REMIC Senior Regular Interest or the RP Component
Mortgage Loan REMIC Senior Regular Interest for any Distribution Date, the
Uncertificated Accrued Interest in respect of such CS Component Mortgage Loan
REMIC Senior Regular Interest or RP Component Mortgage Loan REMIC Senior Regular
Interest, as applicable, for such Distribution Date, reduced (to not less than
zero) by the amount of Prepayment Interest Shortfalls, if any, for such
Distribution Date, that relate to the CS Component Mortgage Loan or RP Component
Mortgage Loan, as applicable, and are allocable to the REMIC II Regular
Certificates in accordance with the definition of "Distributable Certificate
Interest" for such Distribution Date. With respect to any REMIC I Regular
Interest, for any Distribution Date, the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, reduced (to
not less than zero) by the product of (i) the Net Aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date (other than to the extent
allocable to the CS Component Mortgage Loan Subordinate Component or the RP
Component Mortgage Loan Subordinate Components), multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to the CS Component
Mortgage Loan REMIC Senior Regular Interest or the RP Component Mortgage Loan
REMIC Senior Regular Interest, (i) on or prior to the first Distribution Date,
an amount equal to the initial principal amount of such CS Component Mortgage
Loan REMIC Senior Regular Interest or RP Component Mortgage Loan REMIC Senior
Regular Interest as specified in the Preliminary Statement hereto, and (ii) as
of any date of determination after the first Distribution Date, an amount equal
to the related CS Component Mortgage Loan Senior Balance or RP Component
Mortgage Loan Senior Balance, as applicable, on the Distribution Date
immediately prior to such date of determination.
"Underwriter": Each of Banc of America Securities LLC, Deutsche Bank
Securities Inc., Citigroup Global Markets Inc., Goldman, Sachs & Co. and J.P.
Morgan Securities Inc.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Mortgage Loan or related REO Property
in respect of which the Advance was made.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) created or organized in, or under the laws of, the United
States, any State thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
U.S. Persons have the authority to control all substantial decisions of the
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates in proportion
to the respective Class Principal Balances of their Certificates, and 2% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates
(allocated, pro rata, between the Class XP and Class XC Certificates based upon
their respective Notional Amounts). None of the Class R-I or Class R-II
Certificates will be entitled to any Voting Rights. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and related REO Loans (in the case of the CS
Component Mortgage Loan, the CS Component Mortgage Loan Senior Component only,
and in the case of the RP Component Mortgage Loan, the RP Component Mortgage
Loan Senior Component only), excluding any Companion Loan which may be an REO
Loan, weighted on the basis of the respective Stated Principal Balances (less
(a) with respect to the CS Component Mortgage Loan, the Class Principal Balance
of the Class CS Certificates and (b) with respect to the RP Component Mortgage
Loan, the Class Principal Balance of the Class RP Certificates) of such Mortgage
Loans and REO Loans outstanding immediately prior to such Distribution Date.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date, as of the close of business on the Determination Date in the same
calendar month, but which is not delinquent past the applicable grace period for
such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Mortgage
Loan, the amount of any Advance made with respect to such Mortgage Loan on or
before the date such Mortgage Loan becomes (or, but for the making of three
monthly payments under its modified terms, would then constitute) a Corrected
Mortgage Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Mortgage Loan
becomes a Corrected Mortgage Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Loan (other than the
Bank of America Center Mortgage Loan), the fee designated as such and payable to
the Special Servicer pursuant to the second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Loan as to which
a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and assigns or
such Person's successors in such capacity, as the case may be;
(g) unless otherwise specified herein, "pro rata" when used in
reference to more than one Class of the Certificates shall mean "pro rata" based
on the outstanding Class Principal Balances of such Classes of Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to the
designated Articles, Sections, Subsections, clauses and other subdivisions of
this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related Mortgage Loan documents
and, in the absence of such express provisions, in accordance with the Servicing
Standard. All amounts collected by or on behalf of the Trust in respect of or
allocable to any particular Mortgage Loan in the form of payments from
Mortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Loan documents and, in the
absence of such express provisions or if and to the extent that such terms
authorize the lender to use its discretion, shall be applied: first, as a
recovery of Nonrecoverable Advances (including interest on such Nonrecoverable
Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from
general collections on the Mortgage Loans and resulted in principal distributed
to the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", and, if applicable, unpaid
related Liquidation Expenses and any outstanding related Additional Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest on such Mortgage
Loan to, but not including, the date of receipt by or on behalf of the Trust
(or, in the case of a full Monthly Payment from any Mortgagor, through the
related Due Date); third, as a recovery of principal of such Mortgage Loan then
due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, unless a Liquidation Event
has occurred in respect of such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium then due and
owing under such Mortgage Loan; seventh, as a recovery of any Default Charges
then due and owing under such Mortgage Loan; eighth, as a recovery of any
assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal; and tenth, as a recovery of
any remaining principal of such Mortgage Loan to the extent of its entire
remaining unpaid principal balance.
(b) Collections by or on behalf of the Trust in respect of each REO
Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of Nonrecoverable Advances (including interest on
such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with respect
to such REO Loan, that were reimbursed from collections on the Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso of the definition of "Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest on such REO Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of receipt; third, as a recovery of
principal of such REO Loan to the extent of its entire unpaid principal balance;
fourth, in accordance with the Servicing Standard of the Master Servicer or the
Special Servicer, as applicable, as a recovery of any other amounts due and
owing in respect of such REO Loan; and fifth, as a recovery of any other amounts
deemed to be due and owing in respect of the related REO Loan, in that order. If
the Bank of America Center Mortgage Loan becomes an "REO Loan" under the Bank of
America Center Pooling Agreement, the treatment of the foregoing amounts with
respect to the Bank of America Center Mortgage Loan shall be subject to the
terms of the Bank of America Center Intercreditor Agreement and the Bank of
America Center Pooling Agreement.
(c) Any reference to the Certificate Principal Balance of any Class
of Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to any distributions made on such Distribution Date pursuant to Section
4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, 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, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against any Companion Loan
Noteholder and such Companion Loan Noteholder shall not suffer any adverse
consequences as a result of the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
(a) Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, shall be interpreted in a manner consistent with
this Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-5". Wells Fargo Bank, N.A. is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale
Agreements and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes (i) the Mortgage Loans as from time to time are
subject to this Agreement, all scheduled payments of principal and interest
under and proceeds of such Mortgage Loans received after the Cut-off Date (other
than payments of principal, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Depositor), and all
payments of principal and interest under and proceeds of the Mortgage Loans due
and payable after the Cut-off Date but collected on or prior to the Cut-off
Date, together with all documents delivered or caused to be delivered hereunder
with respect to such Mortgage Loans by the Mortgage Loan Sellers, (ii) any REO
Property acquired in respect of a Mortgage Loan, (iii) such funds or assets as
from time to time are deposited into the Certificate Account, the Component
Mortgage Loan REMIC Distribution Account, the REMIC I Distribution Account, the
REMIC II Distribution Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and the REO Account (if established), (iv) in the
case of a Mortgage Loan included in a Loan Pair, all right, title and interest
of the Depositor in the related Co-Lender Agreement, and (v) in the case of the
Bank of America Center Mortgage Loan, all the right, title and interest of the
Depositor in, to and under the Bank of America Center Intercreditor Agreement.
The conveyance of the Bank of America Center Mortgage Loan and the right to
service such Mortgage Loan are subject to the terms and conditions of the Bank
of America Center Pooling Agreement and the Bank of America Center Intercreditor
Agreement. The conveyance of the ICG Portfolio Mortgage Loan and the right to
service the such Mortgage Loan are subject to the terms and conditions of the
ICG Portfolio Co-Lender Agreement. The conveyance of the Summit Place Apartments
Mortgage Loan and the right to service such Mortgage Loan are subject to the
terms and conditions of the Summit Place Apartments Co-Lender Agreement and this
Agreement. This conveyance is subject to the rights of the Sub-Servicers
pursuant to the Sub-Servicing Agreements which rights are subject in any event
to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisition as a purchase and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at each Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Trustee or a Custodian appointed thereby, on or before the
Closing Date, the Mortgage File and any Additional Collateral (other than
Reserve Funds) for each Loan acquired by the Depositor from such Mortgage Loan
Seller. In addition, with respect to each Loan under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that it has contractually obligated
each Mortgage Loan Seller to cause to be prepared, executed and delivered to the
issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to the Trustee such Mortgage Loan Seller's rights as the beneficiary
thereof and drawing party thereunder; provided that the originals of such Letter
of Credit shall be delivered to the Master Servicer (or, in the case of the
Mortgage Loans sold to the Depositor by GECC, to GEMSA). The Depositor shall
deliver to the Trustee on or before the Closing Date a fully executed
counterpart of each of the Mortgage Loan Purchase and Sale Agreements. If a
Mortgage Loan Seller fails to deliver on or before the Closing Date, with
respect to any related Mortgage Loan so assigned, a copy of the Mortgage, a copy
of any related Ground Lease, the originals of any related Letters of Credit, the
original or a copy of the policy of lender's title insurance or, if such policy
has not yet been issued, a "marked-up" pro forma title policy or commitment for
title insurance marked as binding and countersigned by the issuer or its
authorized agent either on its face or by an acknowledged closing instruction or
escrow letter, or, with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and any transfer
documents with respect to such comfort letter, the delivery requirements of this
Section 2.01(b) shall be deemed satisfied with respect to such missing document
if the related Mortgage Loan Seller delivers such document to the Trustee within
15 days following the Closing Date. With respect to the Mortgage Loans so
assigned, the Trustee shall provide a certification on the Closing Date that a
copy of the Mortgage, a copy of any related Ground Lease, the originals of any
related Letters of Credit, the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as binding and
countersigned by the issuer or its authorized agent either on its face or by an
acknowledged closing instruction or escrow letter, or, with respect to
hospitality properties, a copy of the franchise agreement, an original copy of
the comfort letter and any transfer documents with respect to such comfort
letter due on the Closing Date have been delivered (with any exceptions noted).
None of the Trustee, any Custodian, the Master Servicer or the Special Servicer
shall be liable for any failure by the Mortgage Loan Sellers or the Depositor to
comply with the document delivery requirements of the related Mortgage Loan
Purchase and Sale Agreement and this Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Closing Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in November 2004 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the Component Mortgage Loan REMIC Distribution
Account, the REMIC I Distribution Account, the REMIC II Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account, or the
REO Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest under the Mortgage Loan Purchase and Sale
Agreements, (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 75 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee), each
assignment of Mortgage and assignment of Assignment of Leases (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) in favor of the Trustee referred to in clauses (iv) and (v) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each original UCC-2 and UCC-3 in favor of the
Trustee referred to in clause (viii) of the definition of "Mortgage File" that
has been received by the Trustee or a Custodian on its behalf. Upon request of
the Master Servicer (if reasonably necessary for the ongoing administration
and/or servicing of the related Mortgage Loan by the Master Servicer) and at the
expense of the related Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of any such assignment that has been received by the
Trustee. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording, and each such UCC-2
and UCC-3 shall reflect that the file copy thereof should be returned to the
Trustee following filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases the Trustee shall obtain therefrom a certified copy of the
recorded original at the expense of the related Mortgage Loan Seller. The
Trustee may assume for purposes of recordation of each UCC-2 and UCC-3, that the
Mortgage File containing the related UCC-1 includes one state level UCC
Financing Statement filing in the state of incorporation of the related Borrower
for each Mortgaged Property (or with respect to any Loan that has two or more
related Borrowers, the state of incorporation of each such Borrower). Each
Mortgage Loan Seller will deliver to the Trustee the UCC Financing Statements,
completed pursuant to Revised Article 9 of the UCC, on the new national forms,
in recordable form, to be recorded pursuant to this Section 2.01(c). The Trustee
will submit such UCC Financing Statements for filing in the state of
incorporation as so indicated on the documents provided. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Trustee shall direct the related Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the related
Mortgage Loan Purchase and Sale Agreement, a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall, upon receipt
thereof, cause the same to be duly recorded or filed, as appropriate with any
re-recording, re-filing or rejection expenses at the expense of such Mortgage
Loan Seller. If such Mortgage Loan Seller has been so notified and has not
prepared a substitute document or cured such defect, as the case may be, within
60 days, the Trustee shall promptly notify the Master Servicer, the Special
Servicer, the Rating Agencies, the Directing Certificateholder, the CS
Controlling Holder (if the CS Component Mortgage Loan is involved) (and the
Trustee has knowledge of such Holder), the RP Controlling Holder (if the RP
Component Mortgage Loan is involved) (and the Trustee has knowledge of such
Holder), the ICG Portfolio B Noteholder (if the ICG Portfolio Mortgage Loan is
involved) (and the Trustee has knowledge of such Holder) and the Summit Place
Apartments B Noteholder (if the Summit Place Apartments Mortgage Loan is
involved) (and the Trustee has knowledge of such Holder). Each Mortgage Loan
Seller shall be responsible for paying the reasonable fees and out-of-pocket
expenses of the Trustee in connection with the above-referenced recording and
filing of documents insofar as it relates to the Mortgage Loans transferred by
such Mortgage Loan Seller and acquired by the Depositor from such Mortgage Loan
Seller, all as more particularly provided for in the related Mortgage Loan
Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer (or, in the case of the Mortgage Loans sold
to the Depositor by GECC, to GEMSA) or its designee, on or before the Closing
Date, the following items: (i) asset summaries delivered to the Rating Agencies,
originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of such Mortgage Loan Seller that relate to
the Mortgage Loans transferred by such Mortgage Loan Seller to the Depositor
and, to the extent they are not required to be a part of a Mortgage File in
accordance with the definition thereof, originals or copies of all documents,
certificates, letters of credit and opinions in the possession or under the
control of the Mortgage Loan Sellers that were delivered by or on behalf of the
related Mortgagors in connection with the origination of such Loans and that are
reasonably required for the ongoing administration and servicing of such Loans
(except to the extent such items represent draft documents, internal notes,
attorney client privileged communications or credit analyses); and (ii) all
unapplied Reserve Funds and Escrow Payments in the possession or under the
control of such Mortgage Loan Seller that relate to, and that are required for
the ongoing administration and servicing of, the Mortgage Loans transferred by
such Mortgage Loan Seller to the Depositor. The Master Servicer (or, in the case
of the Mortgage Loans sold to the Depositor by GECC, to GEMSA) shall hold all
such documents, records and funds on behalf of the Trustee in trust for the
benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, the Trustee shall re-assign any rights that such Mortgage
Loan Seller had with respect to representations and warranties made by a third
party originator to such Mortgage Loan Seller under the related Mortgage Loan
Purchase and Sale Agreement to such Mortgage Loan Seller in respect of any such
Mortgage Loan.
Section 2.02 Acceptance of the Component Mortgage Loan REMIC and
REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, with respect to each Mortgage Loan, an original Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its behalf holds
and will hold the documents delivered or caused to be delivered by the Mortgage
Loan Sellers in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in the Component Mortgage Loan REMIC and REMIC I in
trust for the exclusive use and benefit of all present and future
Certificateholders and the Trustee as holder of the Component Mortgage Loan
REMIC Senior Regular Interests and the REMIC I Regular Interests. To the extent
that the Mortgage File for a Mortgage Loan included in a Loan Pair relates to a
Companion Loan, the Trustee shall also hold such Mortgage File for the use and
benefit of the related Companion Loan Noteholders. To the extent that the
Mortgage File for the Bank of America Center Mortgage Loan relates to a Bank of
America Center Companion Loan, the Trustee shall also hold such Mortgage File
for the use and benefit of the Bank of America Center Companion Loan
Noteholders.
(b) On or about the seventy-fifth day following the Closing Date
(and, if any exceptions are noted or if the recordation/filing contemplated by
Section 2.01(c) has not been completed (based solely on receipt by the Trustee
of the particular documents showing evidence of the recordation/filing), every
90 days thereafter until the earliest of (i) the date on which such exceptions
are eliminated and such recordation/filing has been completed, (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund, and (iii)
the second anniversary of the Closing Date), the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to each Mortgage Loan, and the Trustee shall, subject to Sections 1.02, 2.02(c)
and 2.02(d), certify in writing (substantially in the form of Exhibit F) to each
of the other parties hereto, the Mortgage Loan Sellers, the Directing
Certificateholder, the CS Controlling Holder (if the CS Component Mortgage Loan
is involved and the Trustee has knowledge of such Holder), the RP Controlling
Holder (if the RP Component Mortgage Loan is involved and the Trustee has
knowledge of such Holder), the ICG Portfolio B Noteholder (if the ICG Portfolio
Mortgage Loan is involved and the Trustee has knowledge of such Holder) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments Mortgage
Loan is involved and the Trustee has knowledge of such Holder), that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File" and
all allonges thereto, if any (or a copy of such Mortgage Note, together with a
lost note affidavit certifying that the original of such Mortgage Note has been
lost), the original or copy of documents specified in clauses (ii) through (vii)
and (xii) of the definition of "Mortgage File", have been received by it or a
Custodian on its behalf; (ii) if such report is due more than 180 days after the
Closing Date, the recordation/filing contemplated by Section 2.01(c) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed and (C) purport to relate to such
Mortgage Loan; and (iv) the Trustee on behalf of the Trust is shown as the owner
of each Mortgage recorded in the name of MERS or its designee. The Trustee may
assume that, for purposes of reviewing the items in clause (viii) of the
definition of Mortgage File and completing the certification attached hereto as
Exhibit F, the related UCC-1 includes one state level UCC Financing Statement
filing in the state of incorporation of the related Borrower for each Mortgaged
Property (or with respect to any Loan that has two or more related Borrowers,
the state of incorporation of each such Borrower). At any time subsequent to the
second anniversary of the Closing Date, the Trustee shall, upon request and at
the requesting party's expense, prepare and deliver to the requesting party
(including any Certificateholder or Certificate Owner) an updated version of the
exception report provided for above.
(c) If a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi), (viii) through (xii) and
(xv) of the definition of "Mortgage File" exist or are required to be delivered
by the related Mortgage Loan Seller in respect of any Mortgage Loan, or (ii) to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C). Furthermore, except as expressly provided in Section
2.02(b), none of the Trustee, the Master Servicer, the Special Servicer or any
Custodian shall have any responsibility for determining whether the text of any
assignment or endorsement is in proper or recordable form, whether the requisite
recording of any document is in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) above, the Trustee may conclusively rely on the related Mortgage Loan Seller
as to the purported genuineness of any such document and any signature thereon.
It is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), in clause (vii), have been received and such additional information as will
be necessary for delivering the certifications required by subsections (a) and
(b) above. If the related Mortgage Loan Seller is notified of or discovers any
error in a Mortgage Loan Checklist, then such Mortgage Loan Seller shall
promptly amend such Mortgage Loan Checklist and distribute such Mortgage Loan
Checklist to each of the other parties hereto; provided, however, that an error
in such Mortgage Loan Checklist by itself shall not be deemed to be a Material
Breach or Material Document Defect. Such new, corrected Mortgage Loan Checklist
shall be deemed to amend and replace the existing Mortgage Loan Checklist;
provided, however, that the correction or amendment of such Mortgage Loan
Checklist by itself shall not be deemed to be a cure of a Material Breach or
Material Document Defect.
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution of
Mortgage Loans for Material Document Defects and Material Breaches.
(a) If any party hereto discovers, or receives written notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Directing Certificateholder, the CS Controlling Holder
(if the CS Component Mortgage Loan is involved and the Trustee has knowledge of
such Holder), the RP Controlling Holder (if the RP Component Mortgage Loan is
involved and the Trustee has knowledge of such Holder), the ICG Portfolio B
Noteholder (if the ICG Portfolio A/B Loan is involved and the Trustee has
knowledge of such Holder), the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved and the Trustee has knowledge of
such Holder) and the related Mortgage Loan Seller.
(b) If necessary, the Trustee shall request each Mortgage Loan
Seller to comply with Section 4(c) of the related Mortgage Loan Purchase and
Sale Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes aware of any
failure on the part of the Mortgage Loan Sellers to do so, the Trustee shall
promptly notify the Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the related Mortgage Loan Seller in
writing of such Material Document Defect or Material Breach, as the case may be,
and direct such Mortgage Loan Seller that it must, not later than 90 days from
the receipt by such parties of such notice (such 90-day period, the "Initial
Resolution Period"), correct or cure such Material Document Defect or Material
Breach, as the case may be, in all material respects, or repurchase the affected
Mortgage Loan (as, if and to the extent required by the related Mortgage Loan
Purchase and Sale Agreement), at the applicable Purchase Price; provided,
however, that if such Mortgage Loan Seller certifies in writing to the Trustee
(i) that, as evidenced by an accompanying Opinion of Counsel, any such Material
Breach or Material Document Defect, as the case may be, does not and will not
cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the REMIC Provisions, (ii) that such
Material Breach or Material Document Defect, as the case may be, is capable of
being corrected or cured but not within the applicable Initial Resolution
Period, (iii) that such party has commenced and is diligently proceeding with
the cure of such Material Breach or Material Document Defect, as the case may
be, within the applicable Initial Resolution Period, and (iv) that such Mortgage
Loan Seller anticipates that such Material Breach or Material Document Defect,
as the case may be, will be corrected or cured within an additional period not
to exceed the Resolution Extension Period (a copy of which certification shall
be delivered by the Trustee to the Master Servicer, the Special Servicer and the
Directing Certificateholder, the CS Controlling Holder (if the CS Component
Mortgage Loan is involved and the Trustee has knowledge of such Holder), the RP
Controlling Holder (if the RP Component Mortgage Loan is involved and the
Trustee has knowledge of such Holder), the ICG Portfolio B Note Holder (if the
ICG Portfolio A/B Loan is involved and the Trustee has knowledge of such
Holder), and the Summit Place Apartments B Note Holder (if the Summit Place
Apartments A/B Loan is involved and the Trustee has knowledge of such Holder),
then such Mortgage Loan Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such correction or cure or,
failing such, to repurchase the Defective Mortgage Loan; provided, further,
that, in lieu of effecting any such repurchase (but, in any event, no later than
such repurchase would have to have been completed), such Mortgage Loan Seller
shall be permitted, during the three-month period following the Startup Day for
REMIC I (or during the two-year period following such Startup Day if the
affected Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), to
replace the affected Mortgage Loan (other than the Bank of America Center
Mortgage Loan, the CS Component Mortgage Loan and the RP Component Mortgage
Loan) with one or more Qualifying Substitute Mortgage Loans and to pay a cash
amount equal to the applicable Substitution Shortfall Amount, subject to any
other applicable terms and conditions of the related Mortgage Loan Purchase and
Sale Agreement and this Agreement. If any substitution for a Deleted Mortgage
Loan is not completed in all respects by the end of the three-month (or, if
applicable, the two-year) period contemplated by the preceding sentence, the
related Mortgage Loan Seller shall be barred from doing so (and, accordingly,
will be limited to the cure/repurchase remedies contemplated hereby), and no
party hereto shall be liable thereto for any loss, liability or expense
resulting from the expiration of such period. If any Mortgage Loan is to be
repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the applicable Purchase Price or Substitution Shortfall Amount
(as the case may be) are to be wired, and the Master Servicer shall promptly
notify the Trustee when such deposit is made. Any such repurchase or replacement
of a Mortgage Loan shall be on a whole loan, servicing released basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related Mortgage Loan documents provide that a Mortgaged
Property may be uncrossed from the other Mortgaged Properties in that portfolio,
and (z) the applicable Material Breach or Material Document Defect does not
constitute a Material Breach or Material Document Defect, as the case may be, as
to any related Crossed-Collateralized Mortgage Loan or applies to only specific
Mortgaged Properties included in such portfolio (without regard to this
paragraph), then the applicable Material Breach or Material Document Defect (as
the case may be) will be deemed to constitute a Material Breach or Material
Document Defect (as the case may be) as to any related Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such portfolio
and the related Mortgage Loan Seller shall repurchase or substitute for any
related Crossed-Collateralized Mortgage Loan in the manner described above
unless, in the case of a Material Breach or Material Document Defect, both of
the following conditions would be satisfied if such Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph: (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans or
Mortgaged Properties for the four calendar quarters immediately preceding the
repurchase or substitution is not less than the greater of (a) the debt service
coverage ratio immediately prior to the repurchase, (b) the debt service
coverage ratio on the Closing Date, and (c) 1.25x and (ii) the loan-to-value
ratio for any remaining Crossed-Collateralized Mortgage Loans or Mortgaged
Properties is not greater than the lesser of (a) the loan-to-value ratio
immediately prior to the repurchase, (b) the loan-to-value ratio on the Closing
Date, and (c) 75%. In the event that both of the conditions set forth in the
preceding sentence would be satisfied, the related Mortgage Loan Seller may
elect either to repurchase or substitute for only the affected
Crossed-Collateralized Mortgage Loan or Mortgaged Properties as to which the
Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the related Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans, such Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of any of the Component Mortgage Loan
REMIC, REMIC I or REMIC II as a REMIC under the Code, or, in the case of a
Cross-Collateralized Mortgage Loan, 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 affected
Cross-Collateralized Mortgage Loans or Mortgaged Properties, including, with
respect to the Trustee, the Primary Collateral securing Mortgage Loans still
held by the Trustee, so long as such exercise does not materially impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Cross-Collateralized Mortgage Loans or Mortgaged
Properties held by such party, then both parties shall forbear from exercising
such remedies until the related Mortgage Loan documents can be modified to
remove the threat of such impairment as a result of the exercise of remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the related Mortgage Loan Seller as contemplated by
this Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the affected Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in December 2004 and
on or prior to the related date of substitution, shall be part of the Trust
Fund. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each corresponding Deleted Mortgage Loan (if any) after the
related date of substitution, shall not be part of the Trust Fund and are to be
remitted by the Master Servicer to the party effecting the related substitution
promptly following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03, the Master
Servicer shall direct such Mortgage Loan Seller to amend the related Mortgage
Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s); and,
upon its receipt of such amended Mortgage Loan Schedule, the Master Servicer
shall deliver or cause the delivery of such amended Mortgage Loan Schedule to
the other parties hereto. Upon any substitution of one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s)
shall become part of the Trust Fund and be subject to the terms of this
Agreement in all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit D
attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03 has been
deposited into the Certificate Account, and further, if applicable, upon receipt
of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with the certification
referred to in Section 2.03(e) from the party effecting the substitution, if
any, the Trustee shall (i) release or cause the release of the Mortgage File and
any Additional Collateral held by or on behalf of the Trustee for the Deleted
Mortgage Loan to the party effecting the repurchase/substitution or its designee
and (ii) execute and deliver such instruments of release, transfer and/or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the party effecting the repurchase/substitution
or its designee the ownership of the Deleted Mortgage Loan, and the Master
Servicer shall notify the applicable Mortgagors of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). If the Mortgage related
to the Deleted Mortgage Loan has been recorded in the name of MERS or its
designee, the Master Servicer shall take all necessary action to reflect the
release of such Mortgage on the records of MERS. In connection with any such
repurchase or substitution by the related Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee pursuant to this Section 2.03(g), shall be payable to
each of them, first, by the related Mortgage Loan Seller to the extent such
Mortgage Loan Seller was required to repurchase the affected Mortgage Loan, and
then as Servicing Advances in respect of the affected Mortgage Loan.
(h) The Mortgage Loan Purchase and Sale Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If the related Mortgage Loan Seller
defaults on its obligations to repurchase or replace any Mortgage Loan as
contemplated by this Section 2.03, the Master Servicer shall (and the Special
Servicer may) promptly notify the Trustee in writing, and the Trustee shall
notify the Certificateholders. Thereafter, the Master Servicer (with respect to
Performing Loans where the defaulting Mortgage Loan Seller is not an Affiliate
of the Master Servicer) and the Special Servicer (with respect to Specially
Serviced Loans and with respect to Performing Loans where the defaulting
Mortgage Loan Seller is an Affiliate of the Master Servicer) shall take such
actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the Master Servicer is notified or
otherwise becomes aware of a default on the part of a Mortgage Loan Seller in
respect of its obligations under Section 4 of the related Mortgage Loan Purchase
and Sale Agreement, the Master Servicer shall also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer or the Special Servicer shall
determine are in the best interests of the Certificateholders (taken as a
collective whole). Any and all reasonable "out-of-pocket" costs and expenses
incurred by the Master Servicer, the Special Servicer and/or the Trustee
pursuant to this Section 2.03(h), including reasonable attorney fees and
expenses to the extent not collected from the related Mortgage Loan Seller
because such Mortgage Loan Seller either failed, or was not required, to cure
the subject actual or alleged Breach or Document Defect or repurchase/replace
the affected related Mortgage Loan, shall constitute Servicing Advances in
respect of the affected Mortgage Loan.
(i) Without limiting the Trustee's duties under this Section 2.03,
the Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Loans, for the benefit of Certificateholders to use reasonable efforts to
enforce, after notice to the Trustee, any of the obligations of the Mortgage
Loan Sellers under the related Mortgage Loan Purchase and Sale Agreements. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out of pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
Section 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders
and the Companion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, do not violate the Depositor's certificate of incorporation or
bylaws or constitute a default (or an event that, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
that is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, except as such enforcement may be
limited by (A) applicable bankruptcy, insolvency, receivership,
reorganization, liquidation, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Depositor to the Trustee hereunder, the Depositor had good and
marketable title to, and was the sole owner of, each such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ix) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Depositor of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by this Agreement to be completed after the Closing
Date.
(x) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans
to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Mortgage Loan as was transferred to it by the Mortgage Loan Sellers
pursuant to the related Mortgage Loan Purchase and Sale Agreements. The
Depositor has not transferred any of its right, title and interest in and
to the Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility of
another party hereunder or under the Mortgage Loan Purchase and Sale
Agreements, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Mortgage Loans by
the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the Companion
Loan Noteholders, as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Master Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). None of the Master Servicer or, any
of its officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such coverage or
insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Loans, and each such Sub-Servicing
Agreement complies with the requirements of Section 3.22(a) in all
material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(d) The GECC Primary Servicer hereby makes all of the
representations and warranties and under Section 2.05(a) and (b) (other than the
representations and warranties in Section 2.05(a)(ix)); except that with respect
Section 2.05(a)(i), the GECC Primary Servicer represents that its is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware.
Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the Companion
Loan Noteholders, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). None of the Special Servicer or, any
of its officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such coverage or
insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) Wells Fargo Bank, N.A. both in its capacity as Trustee and in
its capacity as REMIC Administrator (the "Bank"), hereby represents and warrants
to the other parties hereto and for the benefit of the Certificateholders and
the Companion Loan Noteholders, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing and
in good standing under the laws of the United States and is, shall be or,
if necessary, shall appoint a co-trustee that is, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Loan and to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or that is applicable
to it or any of its assets, which default, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 Execution, Authentication and Delivery of Class CS
Certificates and Class RP Certificates; Creation of Component Mortgage Loan
REMIC Regular Interests and Component Mortgage Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the CS
Component Mortgage Loan and the RP Component Mortgage Loan (a) the Trustee
agrees to hold the CS Component Mortgage Loan and the RP Component Mortgage Loan
in the Component Mortgage Loan REMIC, (b) the Trustee acknowledges the issuance
of the Component Mortgage Loan REMIC Regular Interests and the Component
Mortgage Loan REMIC Residual Interest, (c) the Depositor assigns the Component
Mortgage Loan REMIC Senior Regular Interests to the Trustee as assets of REMIC I
pursuant to Section 2.09, and (d) the Certificate Registrar, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, and the Authenticating Agent has authenticated and delivered to or
upon the order of the Depositor, the Class CS Certificates and Class RP
Certificates in authorized denominations. The Component Mortgage Loan REMIC
Residual Interest is evidenced by the Class R-I Certificates issued pursuant to
Section 2.09. The interests evidenced by the Component Mortgage Loan REMIC
Residual Interest, together with the Component Mortgage Loan REMIC Senior
Regular Interests, the Class CS Certificates and the Class RP Certificates,
constitute the entire beneficial ownership of the Component Mortgage Loan REMIC.
The rights of the Holders of the Class R-I Certificates as owners of the
Component Mortgage Loan REMIC Residual Interest, and the rights of the Class CS
Certificateholders, the Class RP Certificateholders and REMIC I (as holder of
the Component Mortgage Loan REMIC Senior Regular Interests) to receive
distributions from the proceeds of the Component Mortgage Loan REMIC in respect
of the Component Mortgage Loan REMIC Residual Interest and the Component
Mortgage Loan REMIC Regular Interests, respectively, and all ownership interests
evidenced or constituted by the Class CS Certificates, the Class RP
Certificates, the Component Mortgage Loan REMIC Residual Interest and the
Component Mortgage Loan REMIC Senior Regular Interests, shall be as set forth in
this Agreement.
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for such assets and, in the case of the Component
Mortgage Loan REMIC Residual Interest issued pursuant to Section 2.08, the Class
R-I Certificates in authorized denominations. The residual interest in REMIC I
represented by the Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and the Trustee for the benefit of REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, shall be as set
forth in this Agreement.
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
Section 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations. The
interests evidenced by the REMIC II Certificates constitute the entire
beneficial ownership of REMIC II. The rights of the Holders of the REMIC II
Certificates to receive distributions from the proceeds of REMIC II shall be as
set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement (which Loans and REO
Properties specifically exclude the Bank of America Center Mortgage Loan or any
related REO Property) on behalf of the Trustee, and in the best interests and
for the benefit of the Certificateholders and, in the case of a Loan Pair, on
behalf of the related Companion Loan Noteholders (as a collective whole) in
accordance with any and all applicable laws, the terms of this Agreement, the
terms of the respective Loans and in the case of a Loan Pair, the related
Co-Lender Agreement, and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. Without limiting the foregoing, and
subject to Section 3.21, (i) the Master Servicer shall service and administer
all Performing Loans (other than the Bank of America Center Mortgage Loan), and
(ii) the Special Servicer shall service and administer (x) each Loan (other than
a Corrected Loan or the Bank of America Center Mortgage Loan) as to which a
Servicing Transfer Event has occurred and is continuing, and (y) each REO
Property (other than any REO Property related to the Bank of America Center
Mortgage Loan); provided, however, that the Master Servicer shall continue to
collect information and prepare all reports to the Trustee required hereunder
with respect to any Specially Serviced Loans and REO Properties (and the related
REO Loans), and further to render such incidental services with respect to any
Specially Serviced Loans and REO Properties as are specifically provided for
herein; and provided, further, that the Special Servicer shall render such
incidental services with respect to Performing Loans as are specifically
provided for herein. The Master Servicer shall not, on behalf of the Trust,
obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Loans (other than the Bank of America Center
Mortgage Loan)) and the Special Servicer (with respect to Specially Serviced
Loans (other than the Bank of America Center Mortgage Loan)) and REO Loans
(other than an REO Loan related to the Bank of America Center Mortgage Loan), in
its own name or in the name of the Trustee, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders, the
Trustee or any of them: (i) any and all financing statements, control
agreements, continuation statements and other documents or instruments necessary
to perfect or maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments; and (iii) subject to Sections 3.08 and 3.20, any and all
assumptions, modifications, waivers, substitutions, extensions, amendments and
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or the Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, that the Trustee shall not be held
liable for any misuse of any such power of attorney by the Master Servicer or
the Special Servicer and the Trustee will be indemnified pursuant to, and
subject to the limitations set forth in, Section 8.05 for any losses or expenses
it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or Special Servicer's
representative capacity, or (ii) take any action with the intent to cause, and
that actually does cause, the Trustee to be registered to do business in any
state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to this Agreement to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that each A/B Loan is subject to
the terms and conditions of the related Co-Lender Agreement. The parties hereto
further recognize the respective rights and obligations of the "Lenders" under
the ICG Portfolio Co-Lender Agreement, including with respect to (i) the
allocation of collections on or in respect of the ICG Portfolio A/B Loan in
accordance with Sections 3 and 4 of the ICG Portfolio Co-Lender Agreement, (ii)
the making of payments to the "Lenders" in accordance with Sections 3 and 4 of
the ICG Portfolio Co-Lender Agreement, and (iii) the purchase of the ICG
Portfolio Mortgage Loan by the ICG Portfolio Noteholder in accordance with
Section 8 of the ICG Portfolio Co-Lender Agreement. The parties hereto further
recognize the respective rights and obligations of the "Lenders" under the
Summit Place Apartments Co-Lender Agreement, including with respect to (i) the
allocation of collections on or in respect of the Summit Place Apartments A/B
Loan in accordance with Sections 3 and 4 of the Summit Place Apartments
Co-Lender Agreement, (ii) the making of payments to the "Lenders" in accordance
with Sections 3 and 4 of the Summit Place Apartments Co-Lender Agreement, and
(iii) the purchase of the Summit Place Apartments Mortgage Loan by the Summit
Place Apartments Noteholder in accordance with Section 8 of the Summit Place
Apartments Co-Lender Agreement.
In the event that a Mortgage Loan included in a Loan Pair is no
longer part of the Trust Fund and the servicing and administration of such A/B
Loan is to be governed by a separate servicing agreement and not by this
Agreement, as contemplated by Section 16 of the ICG Portfolio Co-Lender
Agreement, in the case of the ICG Portfolio A/B Loan, and Section 16 of the
Summit Place Apartments Co-Lender Agreement, in the case of the Summit Place
Apartments A/B Loan, the Master Servicer and, if such A/B Loan is then being
specially serviced hereunder, the Special Servicer, shall continue to act in
such capacities under such separate servicing agreement, which agreement shall
be reasonably acceptable to the Master Servicer and/or the Special Servicer, as
the case may be, and shall contain servicing and administration, limitation of
liability, indemnification and servicing compensation provisions substantially
similar to the corresponding provisions of this Agreement, except for the fact
that such A/B Loan and the related Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
Notwithstanding the foregoing, if, at such time as a Mortgage Loan
included in a Loan Pair shall no longer be part of the Trust Fund, a separate
servicing agreement with respect to such A/B Loan has not been entered into,
then, until such time as a separate servicing agreement is entered into and such
rating confirmation is obtained, and notwithstanding that such Mortgage Loan is
no longer part of the Trust Fund, the Master Servicer and, if applicable, the
Special Servicer shall continue to service such A/B Loan or any related REO
Property, as the case may be, under this Agreement as if it were a separate
servicing agreement, for the benefit of the parties under the related Co-Lender
Agreement, with: (i) such A/B Loan and the related Mortgaged Property
constituting the sole assets thereunder; and (ii) references to the "Trustee,"
"Trust," "Certificateholders" (or any sub-group thereof) and the "Directing
Certificateholder" being construed to refer to the new "A Noteholder" under the
related Co-Lender Agreement, as applicable. Subject to any express provision
contained in the related Co-Lender Agreement to the contrary, nothing herein
shall be deemed to override the provisions of a Co-Lender Agreement with respect
to the rights of the Companion Loan Noteholders thereunder and with respect to
the servicing and administration duties and obligations with respect to the A/B
Loans, and in the event of any inconsistency between the provisions of a
Co-Lender Agreement and the provisions of this Agreement or as to any matter on
which such Co-Lender Agreement is silent or makes reference to this Agreement,
this Agreement shall govern.
(f) The parties hereto acknowledge that the Bank of America Center
Mortgage Loan is subject to the terms and conditions of the Bank of America
Center Intercreditor Agreement and the Bank of America Center Mezzanine
Intercreditor Agreement. The parties hereto further recognize that the Bank of
America Center Mortgage Loan is further subject to the servicing under and all
other terms and conditions of the Bank of America Center Pooling Agreement. The
parties hereto further recognize the respective rights and obligations of the
holder of "Note A1", the holder of "Note A2" and the holder of "Note A3" under
the Bank of America Center Intercreditor Agreement, including with respect to
(i) the allocation of collections on or in respect of the Bank of America Center
Mortgage Loan in accordance with Section 1 of the Bank of America Center
Intercreditor Agreement, (ii) the making of payments to the holder of "Note A1",
the holder of "Note A2" and the holder of "Note A3" in accordance with Section 1
of the Bank of America Center Intercreditor Agreement, (iii) the making of
payments with respect to the "Note A1 Senior Portion" and to the "Note A1 Junior
Portion" in accordance with Section 1 of the Bank of America Center
Intercreditor Agreement and (iv) the purchase of the Bank of America Center
Mortgage Loan by the "Purchase Option Holder" (as defined in the Bank of America
Center Intercreditor Agreement) or its designee in accordance with Section 5 of
the Bank of America Center Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Loans) and the
Special Servicer (with respect to Specially Serviced Loans) (and in each case
other than with respect to the Bank of America Center Mortgage Loan) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Loans and shall follow such collection procedures as are
consistent with applicable law, the express terms of this Agreement and the
related Loan documents and, to the extent consistent with the foregoing, the
Servicing Standard. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Loan it is obligated to service hereunder.
Consistent with the foregoing and in each case subject to the Servicing
Standard, the Master Servicer (or if applicable a Sub-Servicer) may grant a one
time waiver of Default Charges in connection with a late payment, provided that
for any waiver thereafter of Default Charges in connection with a Mortgage Loan
that is 30 days or more past due, and with respect to which Advances, Advance
Interest or Additional Trust Fund Expenses have been incurred and remain
unreimbursed to the Trust, the Master Servicer must obtain the consent of the
Directing Certificateholder before granting such waiver subject to the
obligation of the Master Servicer to act in accordance with applicable law and
the Servicing Standard. The Directing Certificateholder's consent shall be
deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten Business Days of its receipt of such request.
(b) (i) At least 90 days prior to the maturity date of each Balloon
Loan, the Master Servicer shall send a notice to the related Mortgagor of such
maturity date (with a copy to be sent to the Special Servicer) and shall request
written confirmation that the Balloon Payment will be paid by such maturity
date.
(i) Within 60 days after the Closing Date (or within such shorter
period as may be required by the applicable Letter of Credit), the Master
Servicer shall notify each provider of a Letter of Credit for any Loan
that the Master Servicer or the Special Servicer, on behalf of the Trustee
for the benefit of the Certificateholders, shall be the beneficiary under
each such Letter of Credit. The Master Servicer shall maintain and execute
each such Letter of Credit, if applicable, in accordance with the related
Loan documents.
(ii) Within 60 days after the Closing Date as to each Mortgage Loan
that is secured by the interest of the related Mortgagor under a Ground
Lease (or within such shorter period as may be required by the applicable
Ground Lease), the Master Servicer shall notify the related ground lessor
of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master
Servicer.
All amounts received by the Trust with respect to an A/B Loan shall
be applied to amounts due and owing thereunder (including for principal and
accrued and unpaid interest) in accordance with the express provisions of this
Agreement, the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Co-Lender Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Loans (other than the
Bank of America Center Mortgage Loan), establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments received by
it with respect to the Loans shall be deposited and retained. Subject to any
terms of the related Loan documents that specify the nature of the account in
which Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Loan (and
interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of a related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer, or the
Trustee as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest or other income, if required and as described below, to the
related Mortgagor on balances in the Servicing Account (or, if and to the extent
not payable to the related Mortgagor, to pay such interest or other income (up
to the amount of any Net Investment Earnings in respect of such Servicing
Account for each Collection Period) to the Master Servicer); (v) disburse
Insurance Proceeds if required to be applied to the repair or restoration of the
related Mortgaged Property; or (vi) to clear and terminate the Servicing Account
at the termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the related Mortgagor interest, if
any, earned on the investment of funds in Servicing Accounts maintained thereby,
if required by law or the terms of the related Loan. If the Master Servicer
shall deposit in a Servicing Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Servicing Account,
any provision herein to the contrary notwithstanding. The Special Servicer shall
within two Business Days after receipt deliver all Escrow Payments received by
it to the Master Servicer for deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Loan (other than the Bank
of America Center Mortgage Loan), including each Specially Serviced Loan, (i)
maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts
consistent with the Servicing Standard to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment, the Master Servicer shall apply Escrow Payments as
allowed under the terms of the related Loan documents; provided that if such
Loan does not require the related Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, each of the Master Servicer and the Special Servicer shall use
reasonable efforts, as to those Loans it is obligated to service hereunder, and
subject to and in accordance with the Servicing Standard, enforce the
requirement of the related Mortgage that the Mortgagor make payments in respect
of such items at the time they first become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the Master Servicer shall make a Servicing Advance with respect
to each Mortgaged Property (including each Mortgaged Property relating to a
Specially Serviced Loan) all such funds as are necessary for the purpose of
effecting the timely payment of (i) real estate taxes, assessments and other
similar items, (ii) ground rents (if applicable) and (iii) premiums on Insurance
Policies, in each instance prior to the applicable penalty or termination date
if and to the extent that (x) Escrow Payments (if any) collected from the
related Mortgagor are insufficient to pay such item when due, and (y) the
related Mortgagor has failed to pay such item on a timely basis; provided that,
in the case of amounts described in the preceding clause (i), the Master
Servicer shall not make a Servicing Advance of any such amount until the Master
Servicer (in accordance with the Servicing Standard) has actual knowledge that
the Mortgagor has not made such payments and reasonably anticipates that such
amounts will not be paid by the related Mortgagor on or before the applicable
penalty date. All such Advances shall be reimbursable in the first instance from
related collections from the Mortgagor and further as provided in Section 3.05.
No costs incurred by the Master Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of such
Mortgaged Properties shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the related Loans, notwithstanding that
the terms of such Loans so permit; provided that this sentence shall not be
construed to limit the rights of the Master Servicer on behalf of the Trust or,
if a Loan Pair is involved, the related Companion Loan Noteholders, to enforce
any obligations of the related Mortgagor under such Loan.
The parties hereto acknowledge that, pursuant to the Bank of America
Center Pooling Agreement, the Bank of America Center Master Servicer is
obligated to make advances with respect to the Bank of America Center Mortgage
Loan. The Bank of America Center Master Servicer shall be entitled to
reimbursement for Bank of America Center Nonrecoverable Servicing Advances
(with, in each case, any accrued and unpaid interest thereon provided for under
the Bank of America Center Pooling Agreement) in the manner set forth in the
Bank of America Center Pooling Agreement and the Bank of America Center
Intercreditor Agreement.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Loans (other than the Bank of America
Center Mortgage Loan) shall be deposited and retained. As and to the extent
consistent with the Servicing Standard and the related Loan documents, the
Master Servicer may make withdrawals of amounts so deposited, and draws under
any Letter of Credit delivered in lieu of Reserve Funds, to pay for, or to
reimburse the related Mortgagor in connection with, the costs associated with
the related tenant improvements, leasing commissions, repairs, replacements,
capital improvements and/or environmental testing and remediation, litigation
and/or other special expenses at or with respect to the related Mortgaged
Property for which such Reserve Funds were intended or such Letter of Credit was
delivered and, in the case of a Reserve Fund constituting debt service reserve
accounts, to apply amounts on deposit therein in respect of principal and
interest on the related Mortgage Loan. In addition, as and to the extent
consistent with the Servicing Standard and the related Loan documents, the
Master Servicer may make withdrawals of amounts so deposited, and draws under
any Letter of Credit so delivered, to prepay the Loan in the event certain
leasing or other economic criteria are not satisfied at the related Mortgaged
Property (but only if such prepayment is required by the related Loan documents
or continuing to hold such funds or Letter of Credit as Additional Collateral is
not consistent with the Servicing Standard), or to release such amounts to the
related Mortgagor or otherwise apply such amounts for any other appropriate
purpose in the event that such criteria are satisfied, and the Master Servicer
may return any Letter of Credit so delivered to the related Mortgagor. Subject
to the terms of the related Loan documents, each Reserve Account shall be an
Eligible Account. Interest and other income, if any, earned on funds on deposit
in any Reserve Account held by the Master Servicer (to the extent of any Net
Investment Earnings with respect to such Reserve Account for any Collection
Period), shall be for the benefit of and payable to the Master Servicer, unless
otherwise required to be paid to the related Mortgagor by law or the terms of
the related Loan. Any out-of-pocket expenses incurred by the Master Servicer to
enable the Master Servicer to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer shall make reasonable
efforts to recover such expenses from the related Mortgagor to the extent the
Mortgagor is required to pay such expenses under the terms of the related Loan
documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan (and other than with
respect to the Bank of America Center Mortgage Loan), the Master Servicer shall
request from the Mortgagor written confirmation thereof within a reasonable time
after the later of the Closing Date and the date as of which such plan is
required to be established or completed. To the extent any repairs, capital
improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Loan, the Master Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required by the related Loan documents to be or
to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Loan and report any such failure to the Special
Servicer, the Trustee, the Directing Certificateholder, the CS Controlling
Holder (if the CS Component Mortgage Loan is involved), the RP Controlling
Holder (if the RP Component Mortgage Loan is involved), the ICG Portfolio B
Noteholder (if the ICG Portfolio Mortgage Loan is involved) and the Summit Place
Apartments B Noteholder (if the Summit Place Apartments Mortgage Loan is
involved), within a reasonable time after the date as of which such actions or
remediations are required to be or to have been taken or completed. The Master
Servicer shall promptly give written notice to the Trustee, the Special Servicer
and the Directing Certificateholder, the CS Controlling Holder (if the CS
Component Mortgage Loan is involved), the RP Controlling Holder (if the RP
Component Mortgage Loan is involved), the ICG Portfolio B Noteholder (if the ICG
Portfolio Mortgage Loan is involved) and the Summit Place Apartments B
Noteholder (if the Summit Place Apartments Mortgage Loan is involved), if the
Master Servicer shall determine that any Mortgagor has failed to perform its
obligations under the related Loan documents in respect of environmental
matters.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to the Bank of America Center Master Servicer stating that, as of
the Closing Date, the Trustee is the holder of the Bank of America Center
Mortgage Loan and directing the Bank of America Center Master Servicer to remit
to the Master Servicer all amounts payable to, and to forward, deliver or
otherwise make available, as the case may be, to the Master Servicer all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to, the holder of the Bank
of America Center Mortgage Loan under the Bank of America Center Intercreditor
Agreement and the Bank of America Center Pooling Agreement. The Master Servicer
shall, on the day of receipt thereof, deposit into the Certificate Account all
amounts received with respect to the Bank of America Center Mortgage Loan, the
Bank of America Center Whole Loan Mortgaged Property or any related REO
Property.
Section 3.04 Certificate Account, Distribution Account, Component
Mortgage Loan REMIC Distribution Account, REMIC I Distribution Account, REMIC II
Distribution Account, Excess Liquidation Proceeds Account and Loan Pair
Custodial Account.
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited into the Certificate Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it (and, with respect to the Bank of America Center Mortgage Loan, to
the extent received pursuant to the Bank of America Center Intercreditor
Agreement) subsequent to the Cut-off Date (other than in respect of principal,
interest, Escrow Payments and any other amounts due and payable on the Mortgage
Loans on or before the Cut-off Date, which payments shall be delivered promptly
to the applicable Mortgage Loan Seller or its related designee, with negotiable
instruments endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans together
with any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03 of this Agreement; and
(x) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor;
provided that any amounts described above (other than clause (v) above) that
relate to a Loan Pair or any related REO Property (other than Liquidation
Proceeds derived from the sale of the related Mortgage Loan to or through the
related Companion Loan Noteholder pursuant to the related Co-Lender Agreement or
as a Specially Serviced Loan pursuant to Section 3.18) shall be deposited into
the related Loan Pair Custodial Account, and, in any such case, shall thereafter
be transferred to the Certificate Account as provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Certificate Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into the Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Loan (other than the Bank of America
Center Mortgage Loan) (for the avoidance of doubt, not including any REO Loan),
the Special Servicer shall promptly, but in no event later than one Business Day
after receipt of available funds, remit such amounts to the Master Servicer for
deposit into the Certificate Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to an REO Property (other than an REO Property related to a Loan Pair)
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the Component Mortgage Loan REMIC Senior
Regular Interests and as holder of the REMIC I Regular Interests and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) hereof with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the related Distribution Date.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the Majority Mortgage Loans
shall, on each Distribution Date, be deemed to be deposited into the REMIC I
Distribution Account.
All such amounts deposited in respect of the CS Component Mortgage
Loan shall be deemed to be deposited into the Component Mortgage Loan REMIC
Distribution Account and, on each Distribution Date, deemed to be distributed to
the REMIC I Distribution Account in respect of the related Component Mortgage
Loan REMIC Senior Regular Interest pursuant to Sections 4.01(j)(i), (ii) and
(iii) hereof, distributed to the Class CS Certificates in respect of the
Corresponding CS Component Mortgage Loan Subordinate Component pursuant to
Sections 4.01(j)(iv) to (vi) hereof and distributed to the Class R-I
Certificates in respect of the Component Mortgage Loan REMIC Residual Interest
pursuant to Section 4.01(j)(vii) hereof.
All such amounts deposited in respect of the RP Component Mortgage
Loan shall be deemed to be deposited into the Component Mortgage Loan REMIC
Distribution Account and, on each Distribution Date, deemed to be distributed to
the REMIC I Distribution Account in respect of the related Component Mortgage
Loan REMIC Senior Regular Interest pursuant to Sections 4.01(k)(i), (ii) and
(iii) hereof, distributed to each Class of Class RP Certificates in respect of
the Corresponding RP Component Mortgage Loan Subordinate Component pursuant to
Sections 4.01(k)(iv) to (xvi) hereof and distributed to the Class R-I
Certificates in respect of the Component Mortgage Loan REMIC Residual Interest
pursuant to Section 4.01(k)(xix) hereof.
(c) (i) The Trustee shall establish and maintain the REMIC I
Distribution Account as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Certificateholders (other than
Holders of the Class CS and Class RP Certificates). The REMIC I Distribution
Account shall be established and maintained as an Eligible Account or as a
sub-account of the Distribution Account. With respect to each Distribution Date,
the Trustee shall withdraw or be deemed to withdraw from the REMIC I
Distribution Account and deposit or be deemed to deposit into the REMIC II
Distribution Account on or before such date the amount of the Available
Distribution Amount (including P&I Advances) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests pursuant to Section
4.01(a)(i) and Section 4.01(c)(iv) hereof on such date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the Holders of the REMIC
II Certificates. The REMIC II Distribution Account shall be established
and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the REMIC II Distribution
Account the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the
REMIC II Certificates pursuant to Section 4.01(b)(i) and Section
4.01(c)(i) hereof on such date.
(iii) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Component Mortgage Loan REMIC Distribution
Account") as a sub-account of the Distribution Account, in the name of the
Trustee, in trust for the benefit of the Trust as holder of the Component
Mortgage Loan REMIC Senior Regular Interests, as holder of the REMIC I
Regular Interests and for the Certificateholders. The Component Mortgage
Loan REMIC Distribution Account shall at all times be an Eligible Account
or a sub-account of the Distribution Account.
(iv) The Trustee shall establish and maintain one or more accounts
or sub-accounts (collectively, the "Excess Liquidation Proceeds Account"),
in the name of the Trustee, in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the
Collection Period ending on the Business Day prior to such Master Servicer
Remittance Date. Notwithstanding the foregoing, any Excess Liquidation
Proceeds with respect to the CS Component Mortgage Loan or the RP
Component Mortgage Loan shall be deemed to be distributed by the Component
Mortgage Loan REMIC in respect of the Component Mortgage Loan REMIC
Residual Interest and then deposited into the Excess Liquidation Proceeds
Account in respect of REMIC I.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account, the
Component Mortgage Loan REMIC Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account and the Excess Liquidation Proceeds
Account shall be established at the Corporate Trust Office of the Trustee as of
the Closing Date, and the Trustee shall give notice to the other parties hereto
of the new location of the Distribution Account, the Component Mortgage Loan
REMIC Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account and the Excess Liquidation Proceeds Account prior to any
change thereof. Funds in the Excess Liquidation Proceeds Account, if
established, shall remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Loan Pair Custodial Accounts in which the Master Servicer shall deposit or cause
to be deposited within one Business Day of receipt (in the case of payments by
Mortgagors or other collections on or in respect of a Loan Pair) or as otherwise
required hereunder, the following payments and collections received or made by
or on behalf of it subsequent to the Cut-off Date (other than in respect of
principal, interest and any other amounts due and payable on such Loan Pair on
or before the Cut-off Date, which payments shall be held as provided in the
related Co-Lender Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Loan Pair; (ii) all payments, from whatever source,
or transfers from a debt service reserve account, on account of interest
on such Loan Pair;
(iii) all Prepayment Premiums received in respect of such Loan Pair;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Loan Pair;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Loan Pair Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07 in connection with losses
with respect to such Loan Pair resulting from a deductible clause in a
blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made; and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the related Loan Pair
specifically to cover items for which a Servicing Advance has been made or
that represent a recovery of property protection expenses from a
Mortgagor.
The foregoing requirements for deposit into the Loan Pair Custodial
Accounts shall be exclusive. Without limiting the generality of the foregoing,
actual payments from Mortgagors in the nature of Escrow Payments, Reserve Funds,
assumption fees, assumption application fees, earnout fees, extension fees,
modification fees, charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, need not be deposited by
the Master Servicer in the Loan Pair Custodial Accounts. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into any Loan Pair Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Loan Pair Custodial Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to such Loan Pair (for the avoidance of
doubt, not including any REO Loan), the Special Servicer shall promptly, but in
no event later than one Business Day after receipt of available funds, remit
such amounts to the Master Servicer for deposit into the applicable Loan Pair
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property that is not related to a Loan Pair) shall
be deposited by the Special Servicer into the related REO Account and remitted
to the Master Servicer for deposit into the related Loan Pair Custodial Account
pursuant to Section 3.16(c). With respect to any such amounts paid by check to
the order of the Special Servicer, the Special Servicer shall endorse such check
to the order of the Master Servicer unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement.
Funds in a Loan Pair Custodial Account may only be invested in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor, the ICG Portfolio B Noteholder (if the ICG Portfolio A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), of the location of each Loan Pair Custodial
Account as of the Closing Date and of the new location of a Loan Pair Custodial
Account prior to any change thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Loan Pair Custodial Accounts and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 4:00 p.m. (New York time)
for deposit into the Distribution Account, the Master Servicer Remittance
Amount for, and, to the extent permitted or required by Section 4.03(a),
as applicable, any P&I Advances to be made on, each Master Servicer
Remittance Date;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for unreimbursed P&I Advances made thereby (in each case, with its own
funds), the Master Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vii) below) being limited to amounts
that represent Late Collections of interest and principal received in
respect of the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made (net of related Master Servicing Fees and/or Workout
Fees) (exclusive of each Mortgage Loan or REO Loan included in a Loan Pair
to the extent such payment was received out of collections from the
related Loan Pair Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair to the extent such
payment was received out of collections from the related Loan Pair
Custodial Account), the Master Servicer's right to payment pursuant to
this clause (iii) with respect to any Mortgage Loan or REO Loan (exclusive
of each Mortgage Loan or REO Loan included in a Loan Pair to the extent
such payment was received out of collections from the related Loan Pair
Custodial Account) being payable from, and limited to, amounts received on
or in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds) or such
REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan
(exclusive of each Companion Loan) and to pay to the Bank of America
Center Special Servicer, out of general collections on the Mortgage Loans
and any REO Properties, the Trust Fund's pro rata share of any earned and
unpaid special servicing fees in respect of the Bank of America Center
Mortgage Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, in accordance with the last eight paragraphs of this Section
3.05(a), for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Special Servicer's
or the Trustee's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Mortgagor that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of the particular Mortgage Loan or REO Property (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair or any REO Property
securing a Loan Pair to the extent such payment was received out of
collections from the related Loan Pair Custodial Account) as to which such
Servicing Advance was made;
(vii) (A) to reimburse the Master Servicer, the Special Servicer and
the Trustee, as applicable, in accordance with the last eight paragraphs
of this Section 3.05(a), out of general collections on the Mortgage Loans
and any REO Properties (exclusive of each Companion Loan), for any
unreimbursed Advances made thereby that have been determined to be
Nonrecoverable Advances or for any Workout-Delayed Reimbursement Amounts
and (B) to reimburse the Bank of America Center Master Servicer, the Bank
of America Center Special Servicer and the Bank of America Center Trustee,
as applicable, out of general collections on the Mortgage Loans and any
REO Properties, the Trust Fund's pro rata share of any Bank of America
Center Nonrecoverable Servicing Advance;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Mortgage Pool, as and to the extent
contemplated by Section 3.27;
(ix) (A) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer or the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03,
and insofar as payment has not already been made, and the Default Charges
then on deposit in the Certificate Account is not sufficient to make such
payment pursuant to clause (viii) above, to pay the Master Servicer, the
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair or any REO Property
securing a Loan Pair to the extent such payment was received out of
collections from the related Loan Pair Custodial Account), any related
Advance Interest accrued and payable on the portion of such Advance so
reimbursed or being reimbursed and (B) at such time as it reimburses the
Bank of America Center Master Servicer, the Bank of America Center Special
Servicer and the Bank of America Center Trustee, as applicable, for the
Trust Fund's pro rata share of any Bank of America Center Nonrecoverable
Servicing Advance, to pay to the Bank of America Center Master Servicer,
the Bank of America Center Special Servicer and the Bank of America Center
Trustee, as applicable, out of general collections on the Mortgage Loans
and any REO Properties, interest accrued and payable on the Trust Fund's
pro rata share of any Bank of America Center Nonrecoverable Servicing
Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or REO Loan (exclusive
of each Mortgage Loan or REO Loan included in a Loan Pair) and that, if
paid from a source other than Default Charges collected on the Mortgage
Pool, would constitute an Additional Trust Fund Expense, such payment to
be made out of Default Charges collected on the Mortgage Pool, as and to
the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Loan included in a Loan Pair or any REO Property securing a Loan Pair
to the extent such payment was received out of collections from the
related Loan Pair Custodial Account) such payments to be made, first, out
of payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Mortgage Loan or REO Property, as the case may be, and then, out of
general collections on other Mortgage Loans and REO Properties (exclusive
of each Mortgage Loan or REO Loan included in a Loan Pair or any REO
Property securing a Loan Pair to the extent such payment was received out
of collections from the related Loan Pair Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair or any REO Property
securing a Loan Pair to the extent such payment was received out of
collections from the related Loan Pair Custodial Account), certain
servicing expenses that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair to the extent such
payment was received out of collections from the related Loan Pair
Custodial Account), costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Loan included in a
Loan Pair or any REO Property securing a Loan Pair to the extent such
payment was received out of collections from the related Loan Pair
Custodial Account), for the cost of recording this Agreement in accordance
with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair), any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(b) in connection with providing advice to the Special Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.05(a) (exclusive of any such amount arising
in respect of a Mortgage Loan included in a Loan Pair to the extent such
payment was received out of collections from the related Loan Pair
Custodial Account), it being acknowledged that this clause (xviii) shall
not be construed to modify any limitation otherwise set forth in this
Agreement on the time at which any Person is entitled to payment or
reimbursement of any amount or the funds from which any such payment or
reimbursement is permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the related
Mortgage Loan Seller, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan
(exclusive of each Mortgage Loan included in a Loan Pair), if any,
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included in
a Loan Pair) to the Excess Liquidation Proceeds Account in accordance with
Section 3.04(d);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited into the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) above, then the corresponding withdrawals from the Certificate
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reim
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