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, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; and (B) if the payment, reimbursement or remittance can be made
from any funds on deposit in the Certificate Account, then (following any
withdrawals made from the Certificate Account in accordance with the immediately
preceding clause (A) above) such payment, reimbursement or remittance shall be
made from such general funds remaining on a pro rata basis with any and all
other payments, reimbursements or remittances to be made from such general
funds; provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Certificate Account pursuant to any of
clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of
the Certificate Account pursuant to either of clauses (viii) and (ix) above,
shall be made (to the extent of their respective entitlements to such
reimbursements and/or payments): first, to the Trustee; and second, pro rata, to
the Master Servicer and Special Servicer. Any amounts withdrawn from the
Certificate Account pursuant to clauses (ii) through (xviii) above that are
specific to the CS Component Mortgage Loan or the RP Component Mortgage Loan
shall be allocated to the Component Mortgage Loan REMIC (in respect of the CS
Component Mortgage Loan or the RP Component Mortgage Loan, as applicable); any
amount so withdrawn that is specific to a Majority Mortgage Loan shall be
allocated to REMIC I; and any amount so withdrawn that is not specific to a
particular Mortgage Loan shall be allocated by the REMIC Administrator between
REMIC I and the Component Mortgage Loan REMIC in proportion to the Stated
Principal Balances of their related Mortgage Loans.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xviii) above sufficient to determine
the amounts attributable to the Component Mortgage Loan REMIC (with respect to
the CS Component Mortgage Loan and the RP Component Mortgage Loan) and REMIC I
(with respect to the Majority Mortgage Loans).
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Reimbursement Rate. If such
an election to obtain reimbursement over time is made, the Master Servicer, the
Special Servicer of the Trustee, as applicable, will, during the first six
months after such nonrecoverability determination was made, only seek
reimbursement for such Nonrecoverable Advance from collections of principal
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). After such initial six months, the Master Servicer, the
Special Servicer of the Trustee, as applicable, may continue to seek
reimbursement for such Nonrecoverable Advance solely from collections of
principal or may seek reimbursement for such Nonrecoverable Advance from general
collections, in each case for a period of time not to exceed an additional six
months (with such Nonrecoverable Advances being reimbursed before
Workout-Delayed Reimbursement Amounts). In the event that the Master Servicer,
the Special Servicer or the Trustee, as applicable, wishes to seek reimbursement
over time after the second six-month period discussed in the preceding sentence,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may continue to seek reimbursement for such Nonrecoverable Advance solely from
collections of principal or may seek reimbursement for such Nonrecoverable
Advance from general collections, in either case for such a longer period of
time as agreed to by the Master Servicer, the Special Servicer or the Trustee,
as applicable, and the Directing Certificateholder, each in its sole discretion
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). Notwithstanding the foregoing, at any time after such a
determination to obtain reimbursement over time, the Master Servicer, the
Special Servicer or the Trustee, as applicable, may, in its sole discretion,
decide to obtain reimbursement immediately. The fact that a decision to recover
such Nonrecoverable Advances over time, or not to do so, benefits some Classes
of Certificateholders to the detriment of other Classes shall not, with respect
to the Master Servicer or the Special Servicer, constitute a violation of the
Servicing Standard and/or with respect to the Trustee, constitute a violation of
any fiduciary duty to Certificateholders or contractual duty hereunder. The
Master Servicer, the Special Servicer, or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Nonrecoverable Advances from interest collections as described
above unless (1) the Master Servicer or Special Servicer (or Trustee, if
applicable) determines in its sole discretion that waiting 15 days after such a
notice could jeopardize the Master Servicer's or the Special Servicer's (or
Trustee's, if applicable) ability to recover Nonrecoverable Advances, (2)
changed circumstances or new or different information becomes known to the
Master Servicer or Special Servicer (or Trustee, if applicable) that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) above, or (3) the Master Servicer or Special
Servicer has not timely received from the Trustee information requested by the
Master Servicer or Special Servicer to consider in determining whether to defer
reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or
(3) applies, the Master Servicer or Special Servicer (or Trustee, if applicable)
shall give each Rating Agency notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer or Special Servicer (or Trustee, if
applicable) shall have no liability for any loss, liability or expense resulting
from any notice provided to each Rating Agency contemplated by the immediately
preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, that, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date, and second, out of other amounts
that, but for their application to reimburse a Nonrecoverable Advance and/or to
pay interest thereon, would be included in the Available Distribution Amount for
any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage loans pursuant to this Section 3.05(a), such
reimbursement shall be made first, from the principal collection available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased as set forth in
preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Nonrecoverable Advance was made does not belong, and then to
the Loan Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does belong.
If one or more unreimbursed Workout-Delayed Reimbursement Amounts
exist, then such Workout-Delayed Reimbursement Amounts will be reimbursable only
from amounts in the Certificate Account that represent collections of principal
on the Mortgage Loans; provided, however, that on any Distribution Date when (1)
less than 10% of the initial aggregate Stated Principal Balance of the Mortgage
Pool is outstanding and (2) the sum of the aggregate unpaid Nonrecoverable
Advances (other than P&I Advances made with respect to the Bank of America
Center Mortgage Loan) plus the aggregate unpaid Workout-Delayed Reimbursement
Amounts that have not been reimbursed to the Master Servicer, Special Servicer
or Trustee, as applicable, exceeds 20% of the aggregate Stated Principal Balance
of the Mortgage Pool then outstanding, then the Master Servicer, the Special
Servicer or the Trustee, as applicable, may obtain reimbursement of any
outstanding Workout-Delayed Reimbursement Amount from principal collections or
any other amounts in the Certificate Account, including but not limited to
interest collected on the Mortgage Loans, if principal is not sufficient to pay
such amounts; provided, further, however, that the foregoing shall not in any
manner limit the right of the Master Servicer, the Special Servicer or the
Trustee, as applicable, to choose voluntarily to seek reimbursement of
Workout-Delayed Reimbursement Amounts solely from collections of principal. The
Master Servicer, the Special Servicer or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Workout-Delayed Reimbursement Amounts from interest collections
as described in the preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any Workout-Delayed
Reimbursement Amounts, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made: first, out of the Principal Distribution Amount, that, but for its
application to reimburse a Workout-Delayed Reimbursement Amount, would be
included in the Available Distribution Amount for any subsequent Distribution
Date, and second, out of other amounts that, but for their application to
reimburse a Workout-Delayed Reimbursement Amount, would be included in the
Available Distribution Amount for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Workout-Delayed Reimbursement
Amount, then the Principal Distribution Amount for such Distribution Date shall
be reduced, to not less than zero, by the amount of such reimbursement. If and
to the extent (i) such Workout-Delayed Reimbursement Amount is reimbursed out of
the Principal Distribution Amount as contemplated above and (ii) the particular
item for which such Workout-Delayed Reimbursement Amount was originally made is
subsequently collected out of payments or other collections in respect of the
related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall be increased by an amount equal to the lesser of (A) the
amount of such item and (B) any previous reduction in the Principal Distribution
Amount for a prior Distribution Date as contemplated in the paragraph above
resulting from the reimbursement of the subject Workout-Delayed Reimbursement
Amount.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage loans pursuant to clause (vii) of this
Section 3.05(a), such reimbursement shall be made first, from the principal
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and, if the principal collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group). To
the extent the Principal Distribution Amount for a Distribution Date is
increased as set forth in preceding paragraph, such increase shall be allocated
first to the principal collections in the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does not belong, and then to the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does belong.
(b) The Trustee may, from time to time, make withdrawals from the
Component Mortgage Loan REMIC Distribution Account and REMIC I Distribution
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to be deemed to transfer from the Component Mortgage Loan REMIC
Distribution Account to the REMIC I Distribution Account amounts
distributable in respect of each Component Mortgage Loan REMIC Senior
Regular Interest and to make distributions to the Class CS Certificates,
Class RP Certificates and Class R-I Certificates pursuant to Sections
4.01(j) and 4.01(k), as applicable, and as contemplated by Section
3.04(c)(iii); and to be deemed to transfer from the REMIC I Distribution
Account to the REMIC II Distribution Account on or before the related
Distribution Date the Available Distribution Amount as provided in Section
4.01(a)(ii) and Prepayment Premiums to be distributed in respect of the
REMIC I Regular Interests, as contemplated by Section 4.01(c)(i);
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 11.01(a) or 11.01(d) in connection with any amendment to this
Agreement requested by the Trustee provided such amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on the Component Mortgage Loan REMIC, REMIC I or REMIC II or on the assets
or transactions of any such REMIC, together with all incidental costs and
expenses, and any and all reasonable expenses relating to tax audits, if
and to the extent that either (1) none of the Trustee, the Master
Servicer, the Special Servicer or the REMIC Administrator is liable
therefor pursuant to Section 10.01(d) and/or Section 10.01(h) or (2) any
such Person that may be so liable has failed to timely make the required
payment, and (B) reimburse the REMIC Administrator for reasonable expenses
incurred by and reimbursable to it by the Trust pursuant to Section
10.01(d) and/or Section 10.01(h);
(vii) to transfer from the Component Mortgage Loan REMIC
Distribution Account (in respect of the CS Component Mortgage Loan Senior
Component and the RP Component Mortgage Loan Senior Component) and the
REMIC I Distribution Account to the Interest Reserve Account an amount
equal to the Withheld Amounts for the one-month period preceding the
Distribution Date in each February (and in any January of a year that is
not a leap year) pursuant to Section 4.05; and
(viii) to clear and terminate the Component Mortgage Loan REMIC
Distribution Account and the REMIC I Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on the Component Mortgage Loan REMIC, REMIC I or REMIC
II shall be allocated to the related REMIC, and amounts withdrawn from the
Distribution Account pursuant to clauses (ii) through (v) above shall be
allocated by the REMIC Administrator between REMIC I and the Component Mortgage
Loan REMIC in proportion to the Stated Principal Balances of their related
Mortgage Loans (minus, in the case of the Component Mortgage Loan REMIC, the
Class Principal Balance of the Corresponding Class CS Certificates and the Class
Principal Balance of the Corresponding Class RP Certificates).
(c) The Trustee shall be deemed to make withdrawals from the REMIC
II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class R-I
Certificates, the Class CS Certificates and the Class RP Certificates) on each
Distribution Date pursuant to Section 4.01(b), Section 4.01(c)(i) or Section
9.01, as applicable; and (ii) to clear and terminate the REMIC II Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(d) On each Distribution Date, the Trustee shall withdraw from the
Excess Liquidation Proceeds Account and deposit into the Distribution Account,
for distribution on such Distribution Date, an amount equal to the lesser of (i)
the entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Section 4.01(a) and Section 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit into the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Certificate Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Certificate Account or the Distribution Account pursuant
to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Loan Pair Custodial
Account, for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master Servicer
Remittance Date, in an aggregate amount of immediately available funds
equal to the applicable Loan Pair Remittance Amount, to the related
Companion Loan Noteholders and to the Certificate Account for the benefit
of the Trust (as holder of the related Mortgage Loan or any related REO
Loan), in accordance with Section 3 or 4, as applicable, of the ICG
Portfolio Co-Lender Agreement, and in accordance with Section 3 or 4, as
applicable, of the Summit Place Apartments Co-Lender Agreement, such
remittances to the Trustee to be made into the Distribution Account;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for unreimbursed P&I Advances made with respect to such Loan Pair (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 Loan Pair as to which such
P&I Advance was made (net of related Master Servicing Fees and/or Workout
Fees);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of such Loan Pair and related REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Loan Pair or REO Loan being payable from, and limited to,
amounts received on or in respect of such Loan Pair (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
such Loan Pair and related REO Properties, earned and unpaid Special
Servicing Fees in respect of such Loan Pair and related REO Properties;
(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, for any unreimbursed Servicing Advances with respect to such
Loan Pair or related REO Property made thereby (in each case, with its own
funds), the Master Servicer's, the Special Servicer's and 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 such Loan Pair or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, out of general collections on such Loan Pair or
REO Property, for any unreimbursed related Advances made thereby that have
been determined to be Nonrecoverable Advances;
(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 such Loan Pair, as and to the extent
contemplated by Section 3.27;
(ix) 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
clauses (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 such Loan Pair Custodial 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 such Loan Pair and related REO Property, any related
Advance Interest accrued and payable on the portion of such Advance so
reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to such Loan Pair and that, if paid from a
source other than Default Charges collected on such Loan Pair, would
constitute an Additional Trust Fund Expense, such payment to be made out
of Default Charges collected on such Loan Pair, 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 collected on such Loan Pair that are on deposit in such Loan Pair
Custodial Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to such Loan Pair or REO Property, 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 Loan
Pair or REO Property, as the case may be, and then, out of general
collections on such Loan Pair or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Loan Pair and REO Property, certain servicing expenses
that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Loan Pair and REO
Property, costs and expenses incurred by the related Companion Loan
Noteholder 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
such Loan Pair or REO Property, any amounts payable to any such Person
pursuant to Section 6.03, Section 7.01(b) or Section 8.05(b), as
applicable with respect to such Loan Pair;
(xvi) [Reserved];
(xvii) to pay, out of general collections on such Loan Pair and REO
Property, 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 with respect to such Loan Pair;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amount is related to the Mortgage Loan included in such Loan Pair, 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(f), 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 the Mortgage Loan
related to such 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 related to the Mortgage
Loan included in such Loan Pair to the Excess Liquidation Proceeds Account
in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Loan Pair
Custodial Account in error; and
(xxii) to clear and terminate such Loan Pair Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Loan Pair Custodial Account at any
particular time (after withdrawing any portion of such amounts deposited into
such Loan Pair Custodial 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 such
Loan Pair Custodial 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, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in such Loan Pair Custodial
Account, then (following any withdrawals made from such Loan Pair Custodial
Account in accordance with the immediately preceding clause (A) above) such
payment, reimbursement or remittance shall be made from such general funds
remaining on a pro rata basis with any and all other payments, reimbursements or
remittances to be made from such general funds; provided that any reimbursements
of Advances in respect of such Loan Pair or REO Property out of such Loan Pair
Custodial Account pursuant to any of clauses (ii), (vi) and (vii) above, and any
payments of interest thereon out of such Loan Pair Custodial Account pursuant to
either of clauses (viii) and (ix) above, shall be made (to the extent of their
respective entitlements to such reimbursements and/or payments): first, to the
Trustee; and second, pro rata, to the Master Servicer and Special Servicer.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole which
may include being reimbursed for Nonrecoverable Advances in installments over
time.
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.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Loan Pair Custodial Account, the Special Servicer may direct
any depository institution maintaining each REO Account and the Trustee may
direct any depository institution maintaining the Component Mortgage Loan REMIC
Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account and the Excess Liquidation Proceeds Account to invest, or
if it is such depository institution, may itself invest, the funds held therein
(each such account, for purposes of this Section 3.06, an "Investment Account")
only in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand, in which case
such investments may be sold at any time. Any investment of funds in an
Investment Account shall be made in the name of the Trustee for the benefit of
the Certificateholders and, in the case of a Permitted Investment in any
Investment Account solely related to a Loan Pair, the related Companion
Noteholders (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Certificate Account, the Interest
Reserve Account, each Loan Pair Custodial Account and the Servicing Account) and
the Special Servicer (with respect to Permitted Investments of amounts in each
REO Account), on behalf of the Trustee for the benefit of the Certificateholders
and in the case of any Investment Account solely related to a Loan Pair, the
related Companion Loan Noteholders, and the Trustee (with respect to the Excess
Liquidation Proceeds Account, the Component Mortgage Loan REMIC Distribution
Account, the REMIC I Distribution Account and the REMIC II Distribution
Account), on behalf of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer, the Special Servicer or itself, as applicable,
as the Person that shall) (i) be the "entitlement holder" of any Permitted
Investment that is a "security entitlement" and (ii) maintain "control" of any
Permitted Investment that is either a "certificated security" or an
"uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
the Interest Reserve Account, each Loan Pair Custodial Account and the Servicing
Account) or the Special Servicer (in the case of each REO Account) and the
Trustee (in the case of the Excess Liquidation Proceeds Account, the Component
Mortgage Loan REMIC Distribution Account, the REMIC I Distribution Account and
the REMIC II Distribution Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Loan Pair
Custodial Account and the Servicing Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Excess Liquidation Proceeds Account, the Component
Mortgage Loan REMIC Distribution Account, the REMIC I Distribution Account and
the REMIC II Distribution Account, interest and investment income realized on
funds deposited therein, to the extent of Net Investment Earnings, if any, for
each such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Trustee and shall be subject to withdrawal by the
Trustee. If any loss shall be incurred in respect of any Permitted Investment on
deposit in any Investment Account, the Master Servicer (in the case of the
Certificate Account, the Interest Reserve Account, each Loan Pair Custodial
Account and the Servicing Account (with respect to funds invested by the Master
Servicer for its own account)), the Special Servicer (in the case of each REO
Account) and the Trustee (in the case of the Excess Liquidation Proceeds
Account, the Component Mortgage Loan REMIC Distribution Account, the REMIC I
Distribution Account and the REMIC II Distribution Account) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Collection Period. The
Trustee shall have no liability whatsoever with respect to any such losses,
except in respect to losses incurred in respect of any Permitted Investment on
deposit in the Excess Liquidation Proceeds Account, the Component Mortgage Loan
REMIC Distribution Account, the REMIC I Distribution Account and the REMIC II
Distribution Account, and to the extent that is the obligor on any such
Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) In the case of each Mortgage Loan (other than the Bank of
America Center Mortgage Loan), the Master Servicer shall use reasonable efforts
consistent with the Servicing Standard to cause each Mortgagor to maintain, and,
if the Mortgagor does not so maintain, the Master Servicer will itself cause to
be maintained, for each Mortgaged Property (including each Mortgaged Property
relating to any Specially Serviced Loan) all insurance coverage as is required,
subject to applicable law, under the related Loan documents; provided that, if
and to the extent that any such Loan documents permit the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard taking into account insurance in place at loan origination, with a view
towards requiring insurance comparable to that required under other Loans with
express provisions governing such matters and including business interruption or
rental loss insurance for at least 12 months; and provided, further, that the
Master Servicer shall be required to maintain such insurance coverage upon the
related Mortgagor's failure to do so only to the extent that such insurance is
available at commercially reasonable rates and the Trustee, on behalf of the
Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the
Special Servicer shall also cause to be maintained for each REO Property no less
insurance coverage (to the extent available at commercially reasonable rates)
(A) than was previously required of the related Mortgagor under the related Loan
documents and (B) at a minimum (i) hazard insurance with a replacement cost
rider, (ii) business interruption or rental loss insurance for at least 12
months, and (iii) commercial general liability insurance, in each case, in an
amount customary for the type and geographic location of such REO Property and
consistent with the Servicing Standard; provided that all such insurance
required to be maintained by Master Servicer or Special Servicer shall be
obtained from Qualified Insurers that, in each case, shall have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A2" from
Moody's and/or "A" from S&P (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability as would
not, as confirmed in writing by the relevant Rating Agency, result in an Adverse
Rating Event). All such insurance policies shall contain (if they insure against
loss to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of the Mortgage Loans), or shall name the Trustee (and in the case of a
Loan Pair the related Companion Loan holder(s)) as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (and in the case of a
Loan Pair the related Companion Loan holder(s)) (in the case of insurance
maintained in respect of REO Properties), and shall be issued by an insurer
authorized under applicable law to issue such insurance, and, unless prohibited
by the related Mortgage, may contain a deductible clause (not in excess of a
customary amount). Any amounts collected by the Master Servicer or Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standard) shall be deposited into the Certificate Account or, if a
Loan Pair is involved, the related Loan Pair Custodial Account, subject to
withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable in the
case of amounts received in respect of a Loan, or in the applicable REO Account,
subject to withdrawal pursuant to Section 3.16(c), in the case of amounts
received in respect of an REO Property. Any cost incurred by the Master Servicer
or Special Servicer in maintaining any such insurance shall not, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to unpaid principal balance or Stated Principal Balance of the related
Loan, notwithstanding that the terms of such Loan so permit; provided, however,
that this sentence shall not limit the rights of the Master Servicer or Special
Servicer on behalf of the Trust or, if a Loan Pair is involved, on behalf of the
related Companion Loan Noteholders to enforce any obligations of the related
Mortgagor under such Loan. Costs to the Master Servicer or Special Servicer of
maintaining insurance policies pursuant to this Section 3.07 shall be paid by
and reimbursable to the Master Servicer or the Special Servicer, as the case may
be, as a Servicing Advance.
If the related Loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a
Mortgage Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related Loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the Loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Loan (x) requires a Mortgagor to maintain insurance policies
covering some or all of the risks contained in the Additional Exclusions or (y)
in accordance with the Servicing Standard, the Master Servicer has determined
that the Loan documents permit the lender to require the Mortgagor to maintain
insurance policies covering some or all the risks contained in the Additional
Exclusions (the covered risks required to be covered or that the lender has the
discretion to require to be covered being referred to as "Covered Risks"), the
Master Servicer shall use reasonable efforts in accordance with the Servicing
Standard to determine whether, upon renewal of the Mortgagor's property or
casualty insurance (including any all risk insurance policy), any of the Covered
Risks are excluded from coverage. If any of the Covered Risks are determined by
the Master Servicer to be excluded from coverage, the Master Servicer shall
request the Mortgagor to either (i) purchase insurance acceptable to the Master
Servicer in accordance with the Servicing Standard and in accordance with the
related Loan documents covering such Covered Risks or (ii) provide a written
explanation as to its reasons for failing to purchase such insurance.
Notwithstanding the foregoing, with the written consent of the Special Servicer
in accordance with the Servicing Standard the Master Servicer may waive the
requirement to procure insurance covering any of the Covered Risks if the
Special Servicer determines in accordance with the Servicing Standard that (1)
insurance covering any such Covered Risks is not available at a commercially
reasonable price, or (2) based on information reasonably available to the
Special Servicer, after due inquiry, any such Covered Risks are at that time not
commonly insured against for properties similar to the Mortgaged Property and
located in or around the region in which the Mortgaged Property is located. If
the Special Servicer fails to give a response to the Master Servicer as
referenced in the second preceding sentence within ten Business Days of the
Master Servicer initially notifying the Special Servicer in writing of such
request, the Master Servicer shall promptly notify the Directing
Certificateholder, the CS Controlling Holder (if the CS Component Mortgage Loan
is involved) or the RP Controlling Holder (if the RP Component Mortgage Loan is
involved) of such failure of the Special Servicer to respond to such request. If
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) and/or the Special Servicer have not responded to the
Master Servicer within ten Business Days of the notice referenced in the
immediately preceding sentence, the Master Servicer shall determine in
accordance with the Servicing Standard whether to require (or not require) the
Mortgagor to maintain such insurance. If the Master Servicer requires the
Mortgagor to maintain such insurance and the Mortgagor fails to maintain such
insurance, to the extent such insurance is then reasonably available, the Master
Servicer shall then procure such insurance in accordance with the Servicing
Standard and such failure by the Mortgagor shall constitute a Servicing Transfer
Event.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A2"
from Moody's and/or "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07, and there shall have been one or more losses that would have been covered
by such an individual policy, promptly deposit into the Certificate Account from
its own funds the amount not otherwise payable under the blanket or master force
placed policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Loan (or, in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee, the Certificateholders and, in the case of a Loan Pair, the related
Companion Loan Noteholders, claims under any such blanket or master forced
placed policy in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A2" from
Moody's and/or "A" from S&P, a fidelity bond in such form and amount as would
permit it to be a qualified Fannie Mae sellers-servicer of multifamily mortgage
loans (or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying ability rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A2" from Moody's and/or "A" from S&P, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified Fannie Mae sellers-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). Each of the Master Servicer and the
Special Servicer shall be deemed to have complied with the foregoing provisions
if an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of the Master
Servicer or the Special Servicer (or its direct or indirect parent company), as
applicable, are rated not lower than "A2" from Moody's and/or "A" by S&P, the
Master Servicer or Special Servicer, as applicable, may self-insure with respect
to either or both of the fidelity bond coverage and the errors and omissions
coverage required as described above, in which case it shall not be required to
maintain an insurance policy with respect to such coverage.
Section 3.08 Enforcement of Alienation Clauses.
(a) As to each Loan (other than the Bank of America Center Mortgage
Loan) that contains a provision in the nature of a (i) "due-on-sale" clause
(which includes, without limitation, sales or transfers of the Mortgaged
Property (in full or in part) or the sale, transfer, pledge or hypothecation of
direct or indirect interest in the related Borrower or its owners), which by its
terms (1) provides that such Loan shall (or may at the Mortgagee's option)
become due and payable upon the sale or other transfer of an interest in the
related Mortgaged Property or of a controlling interest in the related
Mortgagor; (2) provides that such Loan may not be assumed without the consent of
the Mortgagee or satisfaction of certain conditions in connection with any such
sale or other transfer, for so long as such Loan is included in the Trust Fund
or (3) provides that such Loan may be assumed or transferred without the consent
of the Mortgagee provided that certain conditions set forth in the related Loan
documents are satisfied, or (ii) as to each Loan that contains a provision in
the nature of a "due-on-encumbrance" clause (including, without limitation, any
mezzanine financing of the related Borrower or the related Mortgaged Property or
any sale or transfer of preferred equity in such Borrower or its direct or
indirect owners), that by its terms: (1) provides that such Loan shall (or may
at the Mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; (2)
requires the consent of the Mortgagee or satisfaction of certain conditions to
the creation of any such additional lien or other encumbrance on the related
Mortgaged Property; or (3) provides that such Loan may be further encumbered
provided that certain conditions set forth in the Loan documents have been
satisfied, each of the Master Servicer and the Special Servicer shall, on behalf
of the Trustee as the Mortgagee of record, as to those Loans it is obligated to
service hereunder, exercise (or waive its right to exercise) any right it may
have with respect to such Loan (x) to accelerate the payments thereon, (y) to
withhold its consent to any such sale or other transfer, in a manner consistent
with the Servicing Standard or (z) determine whether the conditions set forth in
clause (a)(i)(3) above have been satisfied.
Notwithstanding anything to the contrary contained herein, in the
event that the Master Servicer has denied a request for the waiver of a
"due-on-sale" or "due-on-encumbrance", then the Master Servicer shall provide to
the Special Servicer a copy of any written request for such waiver and any
related written analysis of such denial that the Master Servicer prepared while
making the decision to deny the waiver request.
Notwithstanding anything to the contrary contained herein, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause (including, but not limited to,
making any determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) have been satisfied) that, unless both the Master Servicer and the
Special Servicer shall have followed the procedures set forth for those Loans in
the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without first obtaining the consent of the
Special Servicer. The Special Servicer's consent shall be deemed given if
the Master Servicer shall have provided the Special Servicer written
notice of the matter together with all of the information set forth in the
immediately succeeding sentence and the Special Servicer shall not have
responded in writing, via fax or e-mail within ten Business Days of such
request (subject to any extensions of applicable time periods required if
the Special Servicer is required by this Agreement to seek the consent of
other third parties). In connection with the request set forth above, the
Master Servicer shall provide to the Special Servicer written notice of
the matter, a written explanation of the surrounding circumstances, such
additional information as the Special Servicer shall reasonably request
and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without obtaining the consent of the
Directing Certificateholder for any Performing Loan that is a
Non-Partitioned Loan and/or a Post CAP Loan or (b) for any Specially
Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Loan.
Consent by the Directing Certificateholder shall be deemed given if the
Special Servicer shall have provided the Directing Certificateholder
written notice of the matter together with all of the information set
forth in the immediately succeeding sentence and the Directing
Certificateholder shall not have responded in writing, via fax or e-mail
within ten Business Days of such request. In connection with the request
set forth above, the Special Servicer shall provide to the Directing
Certificateholder written notice of the matter, a written explanation of
the surrounding circumstances, such additional information as the
Directing Certificateholder shall reasonably request and a request for
approval by the Directing Certificateholder.
(iii) With respect to the CS Component Mortgage Loan or the RP
Component Mortgage Loan for which a CS Control Appraisal Period or an RP
Control Appraisal Period, as the case may be, does not exist, (A) the
Master Servicer with respect to those time periods when such Loan is a
Performing Loan shall not waive any right it has, or grant any consent
that it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the CS Controlling Holder or RP Controlling
Holder, as applicable, and (B) the Special Servicer with respect to those
time periods when either such Loan is a Specially Serviced Loan shall not
waive any right that it may have, or grant any consent that it may
otherwise withhold under any related "due-on-sale" or "due-on-encumbrance"
clause without obtaining the consent of the CS Controlling Holder or RP
Controlling Holder, as applicable, in the case of the CS Component
Mortgage Loan or the RP Component Mortgage Loan, as applicable. Consent by
the CS Controlling Holder or the RP Controlling Holder, as applicable,
shall be deemed given if the Master Servicer or Special Servicer, as
applicable, shall have provided the CS Controlling Holder or the RP
Controlling Holder, as applicable, written notice of the matter together
with all of the information set forth in the immediately succeeding
sentence and the CS Controlling Holder or RP Controlling Holder, as
applicable, shall not have responded in writing, via fax or e-mail within
ten Business Days of such request. In connection with the request set
forth above, the Master Servicer shall provide to the Special Servicer and
the CS Controlling Holder or the RP Controlling Holder, as applicable,
written notice of the matter, a written explanation of the surrounding
circumstances, such additional information as the Special Servicer and the
CS Controlling Holder or the RP Controlling Holder, as applicable, shall
reasonably request and a request for approval by the Special Servicer and
the CS Controlling Holder or the RP Controlling Holder, as applicable.
(iv) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a) hereof, if any Mortgage Loan with an outstanding principal balance
of greater than $5,000,000 (other than with respect to the Bank of America
Center Mortgage Loan which is governed by the Bank of America Center
Pooling Agreement):
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool,
(2) has an outstanding principal balance of greater than
$20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund
based on outstanding principal balance,
then neither the Master Servicer nor Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in the qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a) hereof, if any Loan:
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool,
(2) is at the time one of the ten largest loans (by
outstanding principal balance) in the Mortgage Pool or has an
outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional
indebtedness secured by the related Mortgaged Property, the
loan-to-value ratio for such Loan would be greater than 85% or the
debt service coverage ratio would be less than 1.20x,
then neither the Master Servicer nor the Special Servicer, as the case may be,
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause governing the transfer
of any Mortgaged Property that secures, or controlling interests in any
Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or
Special Servicer, as applicable, shall have obtained written confirmation from
each Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(vi) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
Loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) In connection with any permitted assumption of any Mortgage Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Loan) or the Special Servicer (in
the case of a Specially Serviced Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Mortgagor
for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11. Notwithstanding the foregoing provisions of this
Section 3.08, if the Master Servicer or Special Servicer makes a determination
under this Sections 3.08 hereof, with respect to a Mortgage Loan or a Companion
Loan so long as such Mortgage Loan or Companion Loan is not a Specially Serviced
Mortgage Loan, that the applicable conditions in the related Mortgage Loan or
Companion Loan documents, as applicable, with respect to assumptions or
encumbrances permitted without the consent of the mortgagee have been satisfied,
then the Master Servicer or the GECC Primary Servicer, as applicable, shall be
entitled to any Net Assumption Fee or Net Assumption Application Fee, with
respect to a Mortgage Loan or a Companion Loan so long as such Mortgage Loan or
Companion Loan is not a Specially Serviced Mortgage Loan.
(d) Notwithstanding the foregoing solely with respect to the GECC
Loans that are not Specially Serviced Loans, and for so long as no GECC Primary
Servicer Event of Default exists, the GECC Primary Servicer shall (i) perform
the duties of the Master Servicer and (ii) be entitled to the fees otherwise
payable to the Master Servicer in each case only with respect to actions taken
(or not taken) relating to "due-on-sale clauses" in Section 3.08(a)(i), and the
Master Servicer shall have no liability or obligation with respect to such
duties whatsoever or be entitled to such fees.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Loans (other than the Bank
of America Center Mortgage Loan) as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments, including pursuant to Section 3.20. In connection with the foregoing,
in the event of a default under any Loan or Cross-Collateralized Group that is
secured by real properties located in multiple states, and such states include
California or another state with a statute, rule or regulation comparable to
California's "one action rule", then the Special Servicer shall consult
Independent counsel regarding the order and manner in which the Special Servicer
should foreclose upon or comparably proceed against such properties. The
reasonable costs of such consultation shall be paid by, and reimbursable to, the
Master Servicer as a Servicing Advance. In addition, all other costs and
expenses incurred in any foreclosure sale or similar proceeding shall be paid
by, and reimbursable to, the Special Servicer as a Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by such Special Servicer taking into
account the factors described in Section 3.18 and the results of any Appraisal
obtained pursuant to the following sentence or otherwise, all such cash bids to
be made in a manner consistent with the Servicing Standard. If and when the
Special Servicer deems it necessary in accordance with the Servicing Standard
for purposes of establishing the fair market value of any Mortgaged Property
securing a Defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Loan Pair, on behalf
of the related Companion Loan Noteholders) under such circumstances, in such
manner or pursuant to such terms as would (i) cause such Mortgaged Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by the Component Mortgage
Loan REMIC, REMIC I, REMIC II or any REMIC that holds a Companion Loan at any
given time constitutes not more than a de minimis amount of the assets of the
Component Mortgage Loan REMIC, REMIC I, REMIC II or any REMIC that holds a
Companion Loan, as the case may be, within the meaning of Treasury Regulations
Sections 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.17(a), subject the Trust to (and in the case of a Mortgaged Property securing
a Loan Pair, on behalf of the related Companion Loan Noteholders), the
imposition of any federal income or prohibited transaction taxes under the Code.
Subject to the foregoing, however, a Mortgaged Property may be acquired through
a single member limited liability company. In addition, except as permitted
under Section 3.17, the Special Servicer shall not acquire any personal property
on behalf of the Trust pursuant to this Section 3.09 (with the exception of cash
or cash equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause any of the Component Mortgage Loan REMIC,
REMIC I, REMIC II or any REMIC that holds a Companion Loan to fail to
qualify as a REMIC at any time that any Certificate is outstanding or,
subject to Section 3.17, cause the imposition of a tax on the Trust under
the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust (and in the case of a Mortgaged Property securing a Loan Pair, on behalf
of the related Companion Loan Noteholders), obtain title to a Mortgaged Property
by foreclosure, deed in lieu of foreclosure or otherwise, or take any other
action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and in the case of a
Mortgaged Property securing a Loan Pair, on behalf of the related Companion Loan
Noteholders), could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, that it would maximize the recovery to the
Certificateholders and, if a Loan Pair is involved, the related Companion
Loan Noteholders (as a collective whole) on a net present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
remedial, corrective and/or other further actions as are necessary to
bring the Mortgaged Property into compliance with applicable environmental
laws and regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved), specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds which, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Certificate Account or if a Loan Pair is involved, out of the related Loan
Pair Custodial Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if a Loan Pair is involved, the
related Companion Loan Noteholders (as a collective whole), release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the Directing Certificateholder, the CS Controlling Holder (if the CS
Companion Mortgage Loan is involved), the RP Controlling Holder (if the RP
Companion Mortgage Loan is involved), 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), monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property as
to which neither of the conditions set forth in clauses (i) and (ii) of the
first paragraph of Section 3.09(c) has been satisfied, in each case until the
earliest to occur of satisfaction of either of such conditions, release of the
lien of the related Mortgage on such Mortgaged Property and the related Loan's
becoming a Corrected Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, commencing in January 2005, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans (other than the
Bank of America Center Mortgage Loan) and REO Properties (other than any REO
Property related to the Bank of America Center Mortgage Loan) required by
Sections 6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously,
the Master Servicer shall deliver to the Trustee an Officer's Certificate
stating that all such information returns relating to Specially Serviced Loans
and REO Properties that were required to be filed during the prior 12 months
have been properly completed and timely provided to the IRS. The Master Servicer
shall prepare and file the information returns with respect to the receipt of
any mortgage interest received in a trade or business from individuals with
respect to any Loan (other than the Bank of America Center Mortgage Loan) as
required by Section 6050H of the Code. All information returns shall be in form
and substance sufficient to meet the reporting requirements imposed by the
relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any 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), it shall promptly notify the Trustee, the
Master Servicer, 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder
(if the Summit Place Apartments A/B Loan is involved). The Special Servicer
shall maintain accurate records, prepared by a Servicing Officer, of each such
Final Recovery Determination (if any) and the basis thereof. Each such Final
Recovery Determination (if any) shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Master Servicer no later than the third
Business Day following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall immediately notify
the Trustee, 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), and request delivery of the related Mortgage
File by delivering thereto a Request for Release in the form of Exhibit D which
shall be accompanied by the form of any release or discharge to be executed by
the Trustee. Any such Request for Release shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited into the Certificate Account pursuant
to Section 3.04(a) have been or will be so deposited. Upon receipt of such
notice and request conforming in all material respects to the provisions hereof,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or Special Servicer, as
applicable. If the Trustee has actual knowledge of the payment in full of any
Loan and the Master Servicer fails to request the Mortgage File from the
Trustee, the Trustee shall notify the Master Servicer and send the Mortgage File
to the Master Servicer. If the Mortgage has been recorded in the name of MERS or
its designee, the Master Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account or if a Loan Pair is involved, the related
Loan Pair Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer or the Special Servicer and receipt therefrom of a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) or, if a Loan Pair is involved, into the related Loan Pair Custodial
Account pursuant to Section 3.04(e) have been or will be so deposited, or that
such Mortgage Loan has become an REO Property, the Request for Release shall be
released by the Trustee to the Master Servicer or the Special Servicer, as
applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, the Master Servicer or the Special Servicer (or if a Loan Pair is
involved, against the related Companion Loan Noteholders); provided that the
Trustee may alternatively execute and deliver to the Special Servicer, in the
form supplied to the Trustee by the Special Servicer, a limited power of
attorney, subject to the provisions of Section 3.01(c), issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by such
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
If a Loan Pair is involved, such documents and pleadings shall also be delivered
by the Special Servicer to the related Companion Loan Noteholder. If from time
to time, pursuant to the terms of the Bank of America Center Intercreditor
Agreement and the Bank of America Center Pooling Agreement, and as appropriate
for enforcing the terms of the Bank of America Center Mortgage Loan, the Bank of
America Center Master Servicer requests delivery to it of the original Mortgage
Note for the Bank of America Center Mortgage Loan, then the Trustee shall, upon
receipt of a Request for release in the form of Exhibit D, release or cause the
release of such original Mortgage Note to the Bank of America Center Master
Servicer or its designee.
(d) The Special Servicer (whether or not a Loan is a Specially
Serviced Loan) shall, for the benefit of the Certificateholders and, if
applicable, the Companion Loan Noteholders, direct, manage, prosecute and/or
defend any and all claims and litigation relating to (a) the enforcement of the
obligations of the Borrower or guarantor under any Loan documents and (b) any
action brought by the Borrower against the Trust Fund. Such enforcement shall be
carried out in accordance with the terms of this Agreement, including, without
limitation, the Servicing Standard; it being expressly understood that the
Master Servicer shall not be liable for the such enforcement by the Special
Servicer.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Loan) and each related REO
Loan. As to each such Mortgage Loan and REO Loan, for each calendar month
(commencing with November 2004) or any applicable portion thereof, the Master
Servicing Fee shall accrue at the related Master Servicing Fee Rate on the same
principal amount, as interest accrues from time to time during such calendar
month (or portion thereof) on such Mortgage Loan or is deemed to accrue from
time to time during such calendar month (or portion thereof) on such REO Loan,
as the case may be, and shall be calculated on the same Interest Accrual Basis
as is applicable for such Mortgage Loan or REO Loan, as the case may be. The
Master Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease
to accrue if a Liquidation Event occurs in respect thereof. Master Servicing
Fees earned with respect to any Loan or REO Loan shall be payable monthly from
payments of interest on such Loan or REO Revenues allocable as interest on such
REO Loan, as the case may be. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
the portion of any related Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds allocable as interest on such Loan or REO Loan, as the case
may be.
In the case of the CS Component Mortgage Loan and the RP Component
Mortgage Loan, as applicable, the Master Servicing Fee with respect to the CS
Component Mortgage Loan Senior Component, the CS Component Mortgage Loan
Subordinate Component, the RP Component Mortgage Loan Senior Component and/or
the RP Component Mortgage Loan Subordinate Components and additional servicing
compensation with respect to the CS Component Mortgage Loan and the RP Component
Mortgage Loan, as applicable, shall be an expense of the Component Mortgage Loan
REMIC.
The right to receive the Master Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement and except as
otherwise expressly provided in the following paragraph.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to any
Companion Loan Holder under any Co-Lender Agreement (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Loan (other than the Bank of America Center
Mortgage Loan);
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Loan (other than the Bank of
America Center Mortgage Loan) except that the GEMSA will be entitled to
such fees with respect to any GECC Loan which is a Performing Loan in
connection with its servicing obligations under Section 3.08(a)(i);
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Loan (other than the Bank of America Center Mortgage Loan)
for which Special Servicer approval is required except that the GEMSA will
be entitled to such fees with respect to any GECC Loan which is a
Performing Loan in connection with its servicing obligations under Section
3.08(a)(i) and Section 3.20(g) provided that no GECC Primary Servicer
Event of Default exists;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Loan (other than the Bank of America Center Mortgage Loan) and,
in the case of checks returned for insufficient funds, with respect to a
Specially Serviced Loan (other than the Bank of America Center Mortgage
Loan);
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans (other than the Bank of America Center Mortgage Loan);
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on Performing
Loans (other than the Bank of America Center Mortgage Loan).
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan (other than the Bank of America Center
Mortgage Loan) and each REO Loan (other than any REO Loan related to the Bank of
America Center Mortgage Loan) for which it is responsible. As to each Specially
Serviced Loan (other than the Bank of America Center Mortgage Loan) and REO Loan
(other than any REO Loan related to the Bank of America Center Mortgage Loan),
for any particular calendar month or applicable portion thereof, the Special
Servicing Fee shall accrue at the Special Servicing Fee Rate on the same
principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Specially Serviced Loan or is deemed to
accrue from time to time during such calendar month (or portion thereof) on such
REO Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Specially Serviced Loan or REO Loan, as
the case may be. The Special Servicing Fee with respect to any Specially
Serviced Loan or REO Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or, in the case of a Specially Serviced Loan, as
of the date it becomes a Corrected Loan. Earned but unpaid Special Servicing
Fees with respect to Specially Serviced Loans and REO Loans shall be payable
monthly out of general collections on the Loans and any REO Properties on
deposit in the Certificate Account pursuant to Section 3.05(a); provided,
however, if a Loan Pair is involved, first out of funds on deposit in the
related Loan Pair Custodial Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each such
Corrected Loan (other than the Bank of America Center Mortgage Loan). As to each
Corrected Loan, the Workout Fee shall be payable out of, and shall be calculated
by application of the Workout Fee Rate to, each payment of interest (other than
Default Interest) and principal received from the related Mortgagor on such Loan
for so long as it remains a Corrected Loan. The Workout Fee with respect to any
such Corrected Loan will cease to be payable if a new Servicing Transfer Event
occurs with respect thereto or if the related Mortgaged Property becomes an REO
Property; provided that a new Workout Fee would become payable if and when the
subject Loan again became a Corrected Loan. If the Special Servicer is
terminated, including pursuant to Section 3.23, or resigns in accordance with
Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of (i) any Loans serviced by it that became Corrected Loans
during the period that it acted as Special Servicer and that were still
Corrected Loans at the time of such termination or resignation and (ii) any
Specially Serviced Loans for which such Special Servicer has resolved the
circumstances and/or conditions causing any such Loan to be a Specially Serviced
Loan, but that had not as of the time the Special Servicer was terminated become
a Corrected Loan solely because the related Mortgagor had not made three
consecutive timely Monthly Payments and that subsequently becomes a Corrected
Loan as a result of the related Mortgagor making such three consecutive timely
monthly payments (and the successor to the Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence; provided that, in the case of any Specially Serviced Loan described in
clause (ii) of this sentence, the terminated Special Servicer shall immediately
deliver the related Servicing File to the Master Servicer, and the Master
Servicer shall (without further compensation) monitor that all conditions
precedent to such Loan's becoming a Corrected Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds and each repurchase by
the related Mortgage Loan Seller pursuant to Section 4 of the related Mortgage
Loan Purchase and Sale Agreement. 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) and the Summit 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) pursuant to any
applicable purchase right set forth in Section 3.18(c), (l) or (m) 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) and the Summit 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 or (c) the
repurchase or replacement of a Mortgage Loan by the related Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement if such
repurchase occurs within 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 date that the related 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 2.03 of this Agreement.
The Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to any
Companion Loan Holder under any Co-Lender Agreement (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan (other than the Bank of America Center Mortgage
Loan) or an REO Loan (other than any REO Loan related to the Bank of
America Center Mortgage Loan);
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, late payment charges and
charges for beneficiary statements or demands that are actually received
on or with respect to a Specially Serviced Loan (other than the Bank of
America Center Mortgage Loan) or an REO Loan (other than any REO Loan
related to the Bank of America Center Mortgage Loan);
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Loan (other than the Bank of America
Center Mortgage Loan);
(iv) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on Performing Loans (other
than the Bank of America Center Mortgage Loan) and 100% of any and all
substitution fees (net of any costs incurred in connection with any
substitution) collected on Specially Serviced Loans (other than the Bank
of America Center Mortgage Loan)
(v) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period).
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clause (iii), the Special Servicer shall not be
entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Loan Pair is involved, in the related Loan Pair
Custodial Account.
In the case of the CS Component Mortgage Loan and the RP Component
Mortgage Loan, as applicable, a Liquidation Fee and/or Workout Fee with respect
to the CS Component Mortgage Loan Senior Component, the RP Component Mortgage
Loan Senior Component, the CS Component Mortgage Loan Subordinate Component
and/or the RP Component Mortgage Loan Subordinate Components shall be an expense
of the Component Mortgage Loan REMIC.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any Sub-Servicers retained by
it (including any termination fees) and the premiums for any blanket policy or
the standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Loan Pair Custodial Account, the Reserve Accounts or an REO
Account, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer or the Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within ten days
after such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to the defaulting
party. If such Advance is not made by the Master Servicer or the Special
Servicer within three Business Days after such notice, then (subject to Section
3.11(h) below) the Trustee shall make such Advance. Any failure by the Master
Servicer to make a Servicing Advance it is required to make hereunder shall
constitute an Event of Default by the Master Servicer, subject to and as
provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Advance made thereby (with its own
funds), for so long as such Advance is outstanding. Such interest with respect
to any Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.27, out of any Default Charges subsequently collected on or in respect of
the Mortgage Pool or Companion Loan, if applicable; and (ii) then, after such
Advance is reimbursed, but only if and to the extent that such Default Charges
are insufficient to cover such Advance Interest, out of general collections on
the Mortgage Loans and REO Properties on deposit in the Certificate Account or
if a Loan Pair or related REO Property is involved, on deposit in the related
Loan Pair Custodial Account. The Master Servicer shall reimburse itself, the
Special Servicer or the Trustee, as appropriate, for any Advance made by any
such Person as soon as practicable after funds available for such purpose are
deposited into the Certificate Account or if a Loan Pair is involved, are
deposited into the related Loan Pair Custodial Account. Notwithstanding anything
herein to the contrary, no interest shall be payable with respect to any P&I
Advance of a payment due on a Mortgage Loan during the applicable grace period
and interest shall cease to accrue on any Workout-Delayed Reimbursement Amount
to the extent such amount has been reimbursed from principal collections in
accordance with Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
that the Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standard, 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. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee. The determination
by any Person with an obligation hereunder to make Servicing Advances that it
has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be
made by such Person in its reasonable, good faith judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor and
the Trustee (unless it is the Person making such determination), shall provide a
copy thereof to the Directing Certificateholder, the Bank of America Center
Controlling Holder (if the Bank of America Center Mortgage Loan is involved),
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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved), setting forth the basis for such determination, accompanied by a copy
of an Appraisal of the related Mortgaged Property or REO Property performed
within the 12 months preceding such determination, and further accompanied by
any other information, including engineers' reports, environmental surveys or
similar reports, that such Person may have obtained and that support such
determination. Notwithstanding the foregoing, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Servicing Advance, and the Master Servicer and the Special Servicer shall each
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the other such party with respect to a particular
Servicing Advance. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be delivered promptly to the
Special Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer, and a copy of any such Officer's Certificates (and accompanying
information) of the Trustee shall also be promptly delivered to the Master
Servicer and the Special Servicer. The Master Servicer shall consider
Unliquidated Advances in respect of prior Servicing Advances for purposes of
nonrecoverable determinations as if such Unliquidated Advances were unreimbursed
Servicing Advances.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or an REO Property is involved, shall) pay directly out
of the Certificate Account or, if a Loan Pair is involved, the related Loan Pair
Custodial Account in accordance with Section 3.05, any servicing expense that,
if paid by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders and if a Loan Pair is
involved, the Companion Loan Noteholders (as a collective whole), as evidenced
by an Officer's Certificate delivered promptly to the Depositor and the Trustee,
which shall provide a copy thereof to the Directing Certificateholder, the Bank
of America Center Controlling Holder (if the Bank of America Center Mortgage
Loan is involved), 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), setting forth the basis for such determination
and accompanied by any information that such Person may have obtained that
supports such determination. A copy of any such Officer's Certificate (and
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, and a copy of any such Officer's Certificate
(and accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Loan becomes a Specially
Serviced Loan (other than the Bank of America Center Mortgage Loan) (and, in
cases where the related Loan has become a Specially Serviced Loan, the Special
Servicer shall continue to perform or cause to be performed a physical
inspection of the subject Mortgaged Property at least once per calendar year
thereafter for so long as the related Loan remains a Specially Serviced Loan or
if such Mortgaged Property becomes an REO Property); provided that the Special
Servicer shall be entitled to reimbursement of the reasonable and direct
out-of-pocket expenses incurred by it in connection with each such inspection as
Servicing Advances. Beginning in 2005, the Master Servicer shall at its expense
perform or cause to be performed an inspection of each Mortgaged Property at
least once per calendar year (or, in the case of each Mortgage Loan with an
unpaid principal balance of under $2,000,000, once every two years), if the
Special Servicer has not already done so during that period pursuant to the
preceding sentence. Notwithstanding the two immediately preceding sentences, the
Special Servicer with respect to any Mortgaged Property where the related Loan
(other than the Bank of America Center Mortgage Loan) is a Specially Serviced
Loan and/or any REO Property shall inspect the related Mortgaged Property or REO
Property immediately after the debt service coverage ratio with respect to such
Mortgaged Property or REO Property falls below 1.0x. The costs of each such
inspection incurred by the Master Servicer shall be reimbursable from Default
Charges. The costs of each such inspection incurred by the Special Servicer
shall be reimbursable first from Default Charges and to the extent such Default
Charges are insufficient, then out of general collections. To the extent such
costs are to be reimbursed from general collections, such costs shall constitute
an Additional Trust Fund Expense. The Master Servicer and the Special Servicer
shall each prepare a written report of each such inspection performed by it or
on its behalf that sets forth in detail the condition of the Mortgaged Property
and that specifies the occurrence or existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Master Servicer or the
Special Servicer, as the case may be, is aware, (ii) any change in the condition
or occupancy of the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material, or (iii) any waste committed on the Mortgaged
Property that the Master Servicer or the Special Servicer, as the case may be,
in accordance with the Servicing Standard, is aware of and considers material.
Upon request of the Trustee, the Master Servicer and the Special Servicer shall
each deliver to the Trustee a copy (or image in suitable electronic media) of
each such written report prepared by it, in each case within 30 days following
the request (or, if later, within 30 days following the later of completion of
the related inspection if the inspection is performed by the Master Servicer or
the Special Servicer, as the case may be, or receipt of the related inspection
report if the inspection is performed by a third party). Upon request, the
Trustee shall request from the Master Servicer or the Special Servicer, as the
case may be, and, to the extent such items have been delivered to the Trustee by
the Master Servicer or the Special Servicer, as the case may be, deliver, upon
request, to each of the Depositor, 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
A/B Loan is involved and the Trustee has knowledge of such Holder) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved and the Trustee has knowledge of such Holder), any Certificateholder
or, if the Trustee has in accordance with Section 5.06(b) confirmed the
Ownership Interest in Certificates held thereby, any Certificate Owner, a copy
(or image in suitable electronic media) of each such written report prepared by
the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended December
2004, the Special Servicer, in the case of any Specially Serviced Loan (other
than the Bank of America Center Mortgage Loan), and the Master Servicer, in the
case of each Performing Loan (other than the Bank of America Center Mortgage
Loan), shall make reasonable efforts to collect promptly (and, in any event,
shall attempt to collect within 45 days following the end of the subject quarter
or 120 days following the end of the subject year) from each related Mortgagor
quarterly and annual operating statements, budgets and rent rolls of the related
Mortgaged Property, and quarterly and annual financial statements of such
Mortgagor, to the extent required pursuant to the terms of the related Mortgage.
In addition, the Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The Special Servicer shall deliver copies (or images in suitable
electronic media) of all of the foregoing items so collected or obtained by it
to the Master Servicer within 30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to Performing Loans (other than the Bank of America
Center Mortgage Loan), and within 45 days after receipt by the Special Servicer
or otherwise, as to Specially Serviced Loans and REO Properties, of any annual
operating statements or rent rolls with respect to any Mortgaged Property (other
than the Bank of America Center Whole Loan Mortgaged Property) or REO Property,
the Master Servicer (or the Special Servicer, with respect to any Specially
Serviced Loan or REO Property) shall, based upon such operating statements or
rent rolls, prepare (or, if previously prepared, update) the related CMSA
Operating Statement Analysis Report. The Master Servicer also shall deliver to
the Directing Certificateholder (in hard copy or electronic format, as
requested) copies of all such rent rolls and operating statements. The Special
Servicer shall remit a copy of each CMSA Operating Statement Analysis Report
prepared or updated by it (within 10 days following the initial preparation and
each update thereof), together with, if so requested, the underlying operating
statements and rent rolls, to the Master Servicer in a format reasonably
acceptable to the Master Servicer and the Trustee. All CMSA Operating Statement
Analysis Reports relating to Performing Loans (other than the Bank of America
Center Mortgage Loan) shall be maintained by the Master Servicer, and all CMSA
Operating Statement Analysis Reports relating to any Specially Serviced Loan and
REO Property shall be maintained by the Special Servicer. The Trustee shall,
upon request, request from the Master Servicer (if necessary) and, to the extent
such items have been delivered to the Trustee by the Master Servicer, deliver to
the Directing Certificateholder, any Certificateholder or, if the Trustee has in
accordance with Section 5.06 confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such CMSA Operating
Statement Analysis (or update thereof) and, if requested, the related operating
statement or rent rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property or REO Property, the Master
Servicer (or the Special Servicer, with respect to any Specially Serviced Loan
or REO Property) shall prepare or update and forward to the Trustee (upon
request), the Master Servicer (with respect to CMSA NOI Adjustment Worksheets
prepared by the Special Servicer), the Special Servicer (with respect to CMSA
NOI Adjustment Worksheets prepared by the Master Servicer), the Directing
Certificateholder (if the Directing Certificateholder and the Special Servicer
are not the same entity), 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 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved), a CMSA NOI Adjustment Worksheet
for such Mortgaged Property or REO Property, together with, if so requested, the
related operating statements (in an electronic format reasonably acceptable to
the Trustee and the Special Servicer).
If, with respect to any Loan (other than a Specially Serviced Loan),
the Special Servicer has any questions for the related Mortgagor based upon the
information received by the Special Servicer pursuant to Section 3.12(a) or
3.12(b), the Master Servicer shall, in this regard and without otherwise
changing or modifying its duties hereunder, reasonably cooperate with the
Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved), the following reports (or data
files relating to reports of the Master Servicer) with respect to the Specially
Serviced Loans and any REO Properties for which it is responsible, providing the
required information as of such Determination Date: (i) a CMSA Property File;
(ii) a CMSA Special Servicer Loan File (which, in each case, if applicable, will
identify each Loan by loan number and property name); and (iii) the REO Status
Report. In addition, the Special Servicer shall from time to time provide the
Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Loans and REO Properties as may be requested by
the Master Servicer and is reasonably necessary for the Master Servicer to
prepare each report and any supplemental information required to be provided by
the Master Servicer to the Trustee.
(d) Not later than 12:00 noon (New York City time) on the third
Business Day following each Determination Date (or with respect to the CMSA Loan
Periodic Update File, not later than 2:00 p.m. (New York City time) on the
second Business Day following each Determination Date, the Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee, the Special Servicer, the Directing Certificateholder (if the
Directing Certificateholder is not the same entity as the Special Servicer), 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved), in a computer-readable medium downloadable by the Trustee, the
Special Servicer, 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder
(if the Summit Place Apartments A/B Loan is involved) (or, in the case of the
Trustee, at the Trustee's written request, in a form reasonably acceptable to
the recipient, including on a loan-by-loan basis), each of the files and reports
listed in the definition of "CMSA Investor Reporting Package" (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), providing the most recent information with respect to the Mortgage
Pool as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Mortgage Loan by loan number and property
name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer, if the Master Servicer does not have a website, shall
e-mail such reports or files to 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved), until the Master Servicer's website is established. In connection
with providing access to the Master Servicer's website, the Master Servicer may
require registration and the acceptance of a disclaimer and otherwise (subject
to the preceding sentence) adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer deems necessary or appropriate,
conditioning access on execution of an agreement governing the availability, use
and disclosure of such information, and which may provide indemnification to the
Master Servicer for any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c) of this
Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan document prohibiting disclosure of information
with respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and the Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Loan documents and the Servicing Standard. The
Master Servicer or the Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in
December 2004 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File. In
addition, the Depositor shall cause each Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
Section 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Depositor, the Underwriters, the Rating Agencies, the
Directing Certificateholder, and each other on or before April 30 of each year,
beginning in 2005, an Officer's Certificate (the "Annual Performance
Certification") stating that, among other things, to the best of such officer's
knowledge, the Master Servicer or the Special Servicer, as the case may be, has
fulfilled all of its obligations under this Agreement in all material respects
throughout the preceding year (or such shorter period) or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and the action proposed
to be taken with respect thereto, and whether the Master Servicer or the Special
Servicer, as the case may be, has received any notice regarding the
qualification, or challenging the status, of any of the Component Mortgage Loan
REMIC, REMIC I or REMIC II as a REMIC from the IRS or any other governmental
agency or body; provided that the Master Servicer and the Special Servicer shall
each be required to deliver its Annual Performance Certification by March 15 in
2005 and any year that a report on Form 10-K is required to be filed with
respect to the Certificates with the Commission in respect of the preceding
calendar year. The Trustee shall deliver copies of the Annual Performance
Certifications, upon request, to any Certificateholder. If the same entity acts
as the Master Servicer and Special Servicer, the Annual Performance
Certifications of the Master Servicer and Special Servicer may be delivered as a
single certificate.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
Section 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2005, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters, the Rating Agencies,
the Directing Certificateholder, the CS Controlling Holder, the RP Controlling
Holder, the ICG Portfolio B Noteholder and the Summit Place Apartments B
Noteholder, and each other stating that: (i) such firm has obtained a letter of
representation from an officer of the Master Servicer or the Special Servicer,
as the case may be, that includes an assertion that the Master Servicer or the
Special Servicer, as the case may be, has complied with the minimum loan
servicing standards (to the extent applicable to commercial and multifamily
mortgage loans) identified in USAP, with respect to the Master Servicer's or the
Special Servicer's, as applicable, servicing of commercial and multifamily
mortgage loans during the most recently completed calendar year; and (ii) on the
basis of an examination conducted by such firm in accordance with USAP, the
representation is fairly stated in all material respects, subject only to
exceptions and other qualifications that, in the opinion of such firm, USAP
requires it to report; provided that the Master Servicer and the Special
Servicer shall each be required to cause the delivery of its Annual Accountants'
Report by March 15 in 2005 and any year that a report on Form 10-K is required
to be filed with respect to the Certificates with the Commission in respect of
the preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
Section 3.15 Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Depositor, each Rating Agency, 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), and to the OTS, the FDIC and any other banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any records regarding the
Mortgage Loans and the servicing thereof within its control, except to the
extent it is prohibited from doing so by applicable law, the terms of the
Mortgage Loan documents or contract entered into prior to the Closing Date or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it; provided, however, that Certificateholders
and Certificate Owners shall be required to pay their own photocopying costs.
The Master Servicer and the Special Servicer shall each be entitled to affix a
reasonable disclaimer to any information provided by it for which it is not the
original source (without suggesting liability on the part of any other party
hereto). In connection with providing access to such records to 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), the Master Servicer and the Special Servicer
may each require registration (to the extent access is provided via the Master
Servicer's internet website) and the acceptance of a reasonable disclaimer and
otherwise adopt reasonable rules and procedures, which may include, to the
extent the Master Servicer or the Special Servicer, as applicable, deems
necessary or reasonably appropriate, conditioning access on the execution and
delivery of an agreement reasonably governing the availability, use and
disclosure of such information. The failure of the Master Servicer or the
Special Servicer to provide access as provided in this Section 3.15 as a result
of a confidentiality obligation shall not constitute a breach of this Section
3.15. The Master Servicer and the Special Servicer may each deny any of the
foregoing persons access to confidential information or any intellectual
property that the Master Servicer or the Special Servicer is restricted by
license or contract from disclosing. Neither the Master Servicer nor the Special
Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
(b) Once a month, each of the Master Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
to answer questions from the Directing Certificateholder during regular business
hours at such time and for such duration as the Master Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder shall reasonably
agree, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Servicer or the Special Servicer, as the case may be,
is responsible. As a condition to such disclosure, the Directing
Certificateholder shall execute a confidentiality agreement substantially in the
form attached hereto as Exhibit M.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property (other than any REO Property
related to the Bank of America Center Mortgage Loan) is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders or, subject to Section 3.09(b), to a single member
limited liability company of which the Trust is the sole member, which limited
liability company is formed or caused to be formed by the Special Servicer at
the expense of the Trust for the purpose of taking title to one or more REO
Properties pursuant to this Agreement. The limited liability company shall be
(i) disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701-3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
Special Servicer, on behalf of the Trust (and in the case of a Loan Pair, on
behalf of the related Companion Loan Noteholders), shall sell any REO Property
(other than any REO Property related to the Bank of America Center Mortgage
Loan) by the end of the third calendar year following the year in which the
Trust and, if applicable, the related Companion Loan Noteholders acquire
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) applies, more than 60 days prior to the
expiration of such liquidation period, and is granted an extension of time (an
"REO Extension") by the IRS to sell such REO Property or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred will not
result in an Adverse REMIC Event with respect to any of the Component Mortgage
Loan REMIC, REMIC I, REMIC II or any REMIC that holds a Companion Loan.
Regardless of whether the Special Servicer applies for or is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel referred to in clause (ii) of such sentence, the
Special Servicer shall act in accordance with the Servicing Standard to
liquidate such REO Property on a timely basis. If the Special Servicer is
granted such REO Extension or obtains such Opinion of Counsel, the Special
Servicer shall (i) promptly forward a copy of such REO Extension or Opinion of
Counsel to the Trustee, and (ii) sell such REO Property within such extended
period as is permitted by such REO Extension or contemplated by such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its applying for and being granted the REO Extension
contemplated by clause (i) of the third preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the third preceding sentence,
and for the creation of and the operating of a limited liability company, shall
be covered by, and be reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property (other than any REO
Property related to the Bank of America Center Mortgage Loan) separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, except
as provided in the following sentence, the Special Servicer shall establish and
maintain one or more Pool REO Accounts, to be held on behalf of the Trustee in
trust for the benefit of the Certificateholders, for the retention of revenues
and other proceeds derived from each REO Property. If such REO Acquisition
occurs with respect to any Mortgaged Property securing a Loan Pair, the Special
Servicer shall establish an REO Account solely with respect to such property (a
"Loan Pair REO Account") which may be a sub-account of the REO Account, to be
held for the benefit of the Certificateholders and the applicable Companion Loan
Noteholders. Each REO Account shall be an Eligible Account and may consist of
one account for all the REO Properties. The Special Servicer shall deposit, or
cause to be deposited, in the related REO Account, within two Business Days of
receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation Expenses
paid therefrom) and Insurance Proceeds received in respect of an REO Property.
The Special Servicer is authorized to pay out of related Liquidation Proceeds
any Liquidation Expenses incurred in respect of an REO Property and outstanding
at the time such proceeds are received. Funds in an REO Account may be invested
only in Permitted Investments in accordance with Section 3.06. The Special
Servicer shall be entitled to make withdrawals from the REO Account to pay
itself, as Additional Servicing Compensation in accordance with Section 3.11(d),
interest and investment income earned in respect of amounts held in an REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto and if a Loan
Pair is involved, the related B Noteholder, of the location of an REO Account
when first established and of the new location of an REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property (other than any REO Property related to the Bank of America
Center Mortgage Loan), but only to the extent of amounts on deposit in the
applicable REO Account relating to such REO Property. By 2:00 p.m., New York
City time, on the Business Day following the end of each Collection Period, the
Special Servicer shall withdraw from the related REO Account and deposit into
the Certificate Account or the applicable Loan Pair Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Loan Pair Custodial Account, as
applicable), the aggregate of all amounts received in respect of each such REO
Property during such Collection Period, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that the Special Servicer
may retain in the applicable REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of any
such REO Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital improvements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items reasonably
expected to be incurred during the following 12-month period. For purposes of
the foregoing, the Pool REO Account and a Loan Pair REO Account correspond to
the Certificate Account and the related Loan Pair Custodial Account,
respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property (other than any REO Property
related to the Bank of America Center Mortgage Loan) is acquired, the Special
Servicer shall manage, conserve, protect, operate and lease such REO Property
for the benefit of the Certificateholders (and in the case of a Loan Pair, for
the benefit of the related Companion Loan Noteholders as a collective whole)
solely for the purpose of its timely disposition and sale in a manner that does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by the
Trust Fund of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders (and in the case of a Loan Pair, for the benefit of the
related Companion Loan Noteholders) (as determined by the Special Servicer in
its good faith and reasonable judgment). Subject to this Section 3.17, the
Special Servicer may earn "net income from foreclosure property" within the
meaning of Section 860G(c) of the Code if it determines that earning such income
is in the best interests of Certificateholders (and in the case of a Loan Pair,
for the benefit of the related Companion Loan Noteholders) on a net after-tax
basis as compared with net leasing such REO Property or operating such REO
Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the second Business Day following receipt of such funds) in the applicable
REO Account all revenues received by it with respect to each such REO Property
and the related REO Loan, and shall withdraw from the applicable REO Account, to
the extent of amounts on deposit therein with respect to such REO Property,
funds necessary for the proper operation, management, leasing, maintenance and
disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Master Servicer determines, in its reasonable, good faith
judgment, that such payment would be a Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property (other
than any REO Property related to the Bank of America Center Mortgage Loan)
within 90 days of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund unless a Loan Pair is involved, in which case
such fees shall be netted out of collections on the REO Property prior to
being remitted to the Special Servicer) shall be reasonable and customary
in light of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property, such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property (other than any REO Property related to
the Bank of America Center Mortgage Loan) in accordance with Sections 3.17(a)
and 3.17(b).
Section 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or an REO
Property (other than any REO Property related to the Bank of America Center
Mortgage Loan) only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Section
2.03(a), Section 9.01, in a Co-Lender Agreement or, in the case of the Bank of
America Center Mortgage Loan, in the Bank of America Center Intercreditor
Agreement, the Bank of America Center Pooling Agreement or the Bank of America
Center Mezzanine Intercreditor Agreement.
(b) After the Master Servicer has, pursuant to Section 3.21(a) of
this Agreement, notified the Special Servicer of a Servicing Transfer Event and
in connection therewith has provided the Special Servicer with the information
required under Section 3.21(a) with respect to any Defaulted Mortgage Loan, the
Special Servicer shall determine the fair value of such Defaulted Mortgage Loan
in accordance with the Servicing Standard as hereinafter provided; provided,
however, that such determination shall be made without taking into account any
effect the restrictions on the sale of such Mortgage Loan contained herein may
have on the value of such Defaulted Mortgage Loan; provided, further, that the
Special Servicer shall use reasonable efforts promptly to obtain an Appraisal
with respect to the related Mortgaged Property unless it has an Appraisal that
is less than 12 months old and has no actual knowledge of, or notice of, any
event that in the Special Servicer's judgment would materially affect the
validity of such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within 30
days) after its receipt of such new Appraisal, if applicable. The Special
Servicer will, from time to time, but not less often than every 90 days, adjust
its fair value determination based upon changed circumstances, new information
and other relevant factors, if any, in each instance in accordance with the
Servicing Standard. The Special Servicer shall notify the Trustee, the Master
Servicer and the Majority Certificateholder of the Controlling Class promptly
upon its fair value determination and any adjustment thereto. The Special
Servicer shall also deliver to the Master Servicer, the Majority
Certificateholder of the Controlling Class, 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved), the most recent Appraisal of
the related Mortgaged Property then in the Special Servicer's possession,
together with such other third-party reports and other information then in the
Special Servicer's possession that the Special Servicer reasonably believes to
be relevant to the fair value determination with respect to such Mortgage Loan
(such materials are, collectively, the "Determination Information").
Notwithstanding the foregoing, the Special Servicer shall not be required to
deliver the Determination Information to the Master Servicer, and shall instead
deliver the Determination Information to the Trustee, if the Master Servicer
will not be determining whether the Option Price represents fair value for the
Defaulted Mortgage Loan, pursuant to Section 3.18(e). The reasonable
out-of-pocket costs and expenses incurred by the Special Servicer in making its
fair value determination shall be paid and reimbursed as a Servicing Advance.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Mortgage Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable (subject to restrictions on assignment, if any, in the related
intercreditor, co-lender or participation agreement) option (the "Purchase
Option") to purchase such Defaulted Mortgage Loan (subject to the right to
purchase at the Purchase Price of each of the Bank of America Center Purchase
Option Holder and the Bank of America Center Mezzanine Lenders (if the Bank of
America Center Mortgage Loan is involved), 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved), set forth in Section 3.18(l)
and Section 3.18(m) hereof, from the Trust Fund at a price (the "Option Price")
equal to (A) if the Special Servicer has not yet determined the fair value of
such Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the Mortgage
Rate, (2) any related Prepayment Premium then payable by the Mortgagor, to the
extent the Special Servicer or the Special Servicer's assignee is identified as
the Person that will acquire the related Mortgage Loan, (3) all related Advances
for which the Trust Fund or the Master Servicer or the Special Servicer, as
applicable, has not been reimbursed, together with all accrued and unpaid
interest thereon at the Advance Rate, and (4) all accrued Master Servicing Fees,
Special Servicing Fees, Trustee Fees, Liquidation Fees, Workout Fees and
Additional Trust Fund Expenses allocable to such Defaulted Mortgage Loan whether
recovered or unrecovered from the related Mortgagor or (B) if the Special
Servicer has determined the fair value of such Defaulted Mortgage Loan pursuant
to Section 3.18(b), an amount at least equal to such fair value with respect to
any Purchase Option held by the Majority Certificateholder of the Controlling
Class or the Special Servicer only. Notwithstanding the foregoing, for a period
of 90 days after it receives notice of the Special Servicer's fair value
determination and the related expiration (if any) of the applicable purchase
option held by the Bank of America Center Purchase Option Holder and the Bank of
America Center Mezzanine Lenders (if the Bank of America Center Mortgage Loan is
involved), 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 Portfolio Mortgage Loan is involved) (the "Controlling Class Option
Period"), only the Purchase Option held by the Majority Certificateholder of the
Controlling Class may be exercised. Notwithstanding the foregoing and for the
avoidance of doubt, none of the Majority Certificateholder of the Controlling
Class, the Bank of America Center Purchase Option Holder and the Bank of America
Center Mezzanine Lenders (with respect to the Bank of America Center Mortgage
Loan), the ICG Portfolio B Noteholder (with respect to the ICG Portfolio
Mortgage Loan), the Summit Place Apartments Loan B Noteholder (with respect to
the Summit Place Apartments Mortgage Loan), shall be required to pay a
Liquidation Fee with respect to any applicable purchase right under this
Agreement or with respect to a purchase of a related Defaulted Mortgage Loan as
determined in this Section 3.18 if such purchase occurs or purchase right is
exercised not later than ninety days from the date that the Special Servicer has
initially determined the fair value for the related Defaulted Mortgage Loan.
Any Option Holder may (subject to any restrictions on transfer in
any applicable co-lender, intercreditor or participation agreement) sell,
transfer, assign or otherwise convey its Purchase Option with respect to any
Defaulted Mortgage Loan to any party at any time after the related Mortgage Loan
becomes a Defaulted Mortgage Loan. The transferor of any Purchase Option shall
notify the Trustee and the Master Servicer of such transfer and such notice
shall include the transferee's name, address, telephone number, facsimile number
and appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Mortgage Loan, then the Special Servicer shall have the
right to exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a Defaulted
Mortgage Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed in lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Mortgage Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e) below, upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d) below.
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Mortgage Loan, and after the expiration
of the Controlling Class Option Period, each Option Holder (whether the original
grantee of such option or any subsequent transferee) may exercise its Purchase
Option by providing the Master Servicer and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit I, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire the
related Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. Immediately upon receipt of such Purchase
Option Notice, the Master Servicer shall notify the remaining Option Holders
that a Purchase Option has been exercised. Within ten days thereafter, each
remaining Option Holder may submit to the Master Servicer and the Trustee a
Purchase Option Notice for the related Defaulted Mortgage Loan. Upon the
expiration of such ten-day period, or such sooner time as all remaining Option
Holders have submitted Purchase Option Notices, the Master Servicer shall notify
the Option Holder whose Purchase Option Notice included the highest exercise
price that the exercise of its Purchase Option is effective. The Master Servicer
shall also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price, the
Purchase Option Notice first received by the Master Servicer shall be effective.
The exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Mortgage Loan, and the
Option Price is based upon the Special Servicer's fair value determination, the
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Mortgage Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within 30 days (except as
such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Mortgage Loan, the Master Servicer may obtain an opinion as to
the fair value of such Defaulted Mortgage Loans, taking into account the factors
set forth in Section 3.18(b), from a Qualified Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person which was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Mortgage Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Mortgage Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Mortgage Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Mortgage Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d) above. Upon
receipt of such notice, such Option Holder shall have three Business Days to (i)
accept the Option Price as adjusted and proceed in accordance with Section
3.18(f) below, or (ii) reject the Option Price as adjusted, in which case such
Option Holder shall not be obligated to close the purchase of the Defaulted
Mortgage Loan. Upon notice from such Option Holder, or the Special Servicer,
that such Option Holder rejects the Option Price as adjusted, the Master
Servicer and the Trustee shall provide the notices described in the second
paragraph of Section 3.18(f) below and thereafter any Option Holder may exercise
its purchase option in accordance with this Section 3.18, at the Option Price as
adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Mortgage Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Mortgage Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell an REO Property (other than any
REO Property related to the Bank of America Center Mortgage Loan) in the manner
set forth in Section 3.16(a). The Special Servicer may purchase any REO Property
(at the Purchase Price therefor). The Special Servicer may also offer to sell to
any Person any such REO Property, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Trust Fund. The Special Servicer shall give the
Trustee, the Master Servicer, 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved), not less than ten days' prior written notice of its intention to sell
any such REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any such REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standard, the Master Servicer, an
Affiliate of the Master Servicer, the Special Servicer or an Affiliate of the
Special Servicer, or an employee of any of them may act as broker in connection
with the sale of any such REO Property and may retain from the proceeds of such
sale a brokerage commission that does not exceed the commission that would have
been earned by an independent broker pursuant to a brokerage agreement entered
into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property, if the highest offeror is a
Person other than an Interested Person, or if such price is determined to be
such a price by the Trustee, if the highest offeror is an Interested Person.
Notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may make an offer for or purchase
any such REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any such REO Property, the Trustee shall obtain and
may conclusively rely on an Appraisal from a Qualified Appraiser, at the expense
of the Trust Fund. In determining whether any offer constitutes a fair price for
any such REO Property, the Trustee (or, if applicable, such Qualified Appraiser)
shall take into account, and any appraiser shall be instructed to take into
account, as applicable, among other factors, the physical condition of such REO
Property, the state of the local economy and the Trust Fund's obligation to
comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions, the
Special Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
such REO Property (other than any REO Property related to the Bank of America
Center Mortgage Loan), including the collection of all amounts payable in
connection therewith. A sale of any REO Property shall be without recourse to,
or representation or warranty by, the Trustee, the Depositor, any Servicer, or
the Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Master Servicer, the Special Servicer, the Depositor or
the Trustee shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(j) The Special Servicer shall, within two Business Days following
its receipt of available funds, remit to the Master Servicer the proceeds of any
sale after deduction of the expenses of such sale incurred in connection
therewith for deposit into the Certificate Account. The Trustee, upon receipt of
an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the party or
parties effecting such purchase (or any designee thereof) the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Defaulted Mortgage Loan effecting
such purchase (or any designee thereof) ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the purchaser of such Defaulted Mortgage Loan with the
cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property (other than any REO Property related to the Bank
of America Center Mortgage Loan), and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account or if a Loan Pair is involved, in the
related Loan Custodial Account provided no such fees and charges shall be
charged by the Special Servicer to the Controlling Class Option Holder or any
assignee in connection with the sale of Defaulted Mortgage Loans. Any sale of a
Defaulted Mortgage Loan or any REO Property shall be final and without recourse
to the Trustee or the Trust except as provided in Section 3.18(i), and if such
sale is consummated in accordance with the terms of this Agreement, none of the
Depositor, the Special Servicer, the Master Servicer or the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(l) If the CS Component Mortgage Loan or the RP Component Mortgage
Loan becomes a Defaulted Mortgage Loan, the Master Servicer shall promptly
notify in writing the Special Servicer, the Trustee, the Directing
Certificateholder, the CS Controlling Holder (and the CS Controlling Class
Holder if such parties are not the same) if the CS Component Mortgage Loan is
involved or the RP Controlling Holder (and the RP Controlling Class Holder if
such parties are not the same) if the RP Component Mortgage Loan is involved,
and the Trustee, following its receipt of such notice (to the extent, in each
case, known by the Trustee). Upon receipt of such notice, the CS Controlling
Holder, if the CS Controlling Holder is the CS Controlling Class Holder, or the
RP Controlling Holder, if the RP Controlling Holder is the RP Controlling Class
Holder, as applicable, will have the first option, but not the obligation, to
purchase the CS Component Mortgage Loan or the RP Component Mortgage Loan,
respectively, from the Trust Fund at a price equal to the Purchase Price
thereof. If the CS Controlling Class Holder in its capacity as CS Controlling
Holder or the RP Controlling Class Holder in its capacity as RP Controlling
Holder fails to exercise its related option within 30 days after receipt of such
notice, then the CS Component Mortgage Loan or the RP Component Mortgage Loan,
as applicable, may be sold in accordance with Sections 3.18(b), (c) and (d). For
the avoidance of doubt, a Loan Specific Controlling Class Holder in its capacity
as a Controlling Holder may not purchase the related Component Mortgage Loan for
less than the Option Price set forth in Section 3.18(c)(A).
(m) Notwithstanding anything to the contrary herein, the ICG
Portfolio B Noteholder shall be entitled to purchase the ICG Portfolio Mortgage
Loan in accordance with the terms and conditions set forth in Section 8 of the
ICG Portfolio Co-Lender Agreement. The Master Servicer or the Special Servicer,
as applicable, shall determine the price to be paid in accordance with the terms
of the ICG Portfolio Co-Lender Agreement in connection with any such purchase
and shall provide such notices to the related Companion Loan Noteholders as are
required by the ICG Portfolio Co-Lender Agreement in connection with such
holders' purchase rights. Any purchase of a Specially Serviced Loan that is
purchased pursuant to this Section 3.18 will remain subject to the purchase
rights of the ICG Portfolio B Noteholder as set forth in the ICG Portfolio
Co-Lender Agreement.
(n) Notwithstanding anything to the contrary herein, the Summit
Place Apartments B Noteholder shall be entitled to purchase the Summit Place
Apartments Mortgage Loan in accordance with the terms and conditions set forth
in Section 8 of the Summit Place Apartments Co-Lender Agreement. The Master
Servicer or the Special Servicer, as applicable, shall determine the price to be
paid in accordance with the terms of the Summit Place Apartments Co-Lender
Agreement in connection with any such purchase and shall provide such notices to
the related Companion Loan Noteholders as are required by the Summit Place
Apartments Co-Lender Agreement in connection with such holders' purchase rights.
Any purchase of a Specially Serviced Loan that is purchased pursuant to this
Section 3.18 will remain subject to the purchase rights of the Summit Place
Apartments B Noteholder as set forth in the Summit Place Apartments Co-Lender
Agreement.
(o) Notwithstanding anything to the contrary herein, (i) the Bank of
America Center Purchase Option Holder shall be entitled to purchase the Bank of
America Whole Loan in accordance with the terms and conditions set forth in
Section 3.18(m) of the Bank of America Center Pooling Agreement. The Bank of
America Center Master Servicer or the Bank of America Center Special Servicer,
as applicable, shall determine the price to be paid in accordance with the terms
of the Bank of America Center Pooling Agreement in connection with any such
purchase and shall provide such notices to the Bank of America Center Companion
Loan Noteholders as are required by the Bank of America Center Pooling Agreement
in connection with such purchase rights. Any purchase of the Bank of America
Center Mortgage Loan pursuant to this Section 3.18 will remain subject to the
purchase rights of the Bank of America Center Purchase Option Holder as set
forth in the Bank of America Center Pooling Agreement.
(p) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the CS Component Mortgage Loan or the RP Component
Mortgage Loan, will the related Mortgagor (or any of its affiliates) under the
related Loan be permitted to purchase the related Loan should such Loan become a
Defaulted Mortgage Loan under this Agreement.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Loan available to any Person if the disclosure of
such particular items of information is expressly prohibited by applicable law
or the provisions of any related Mortgage Loan documents. Except as set forth in
the provisos to the preceding sentence, copies of all or any portion of any
Servicing File are to be made available by the Master Servicer upon request;
however, the Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs for making such copies
(other than with respect to the Rating Agencies (and the Majority
Certificateholder of the Controlling Class). The Special Servicer shall, as to
each Specially Serviced Loan and REO Property, promptly deliver to the Master
Servicer a copy of each document or instrument added to the related Servicing
File, and the Master Servicer shall in no way be in default under this Section
3.19(a) solely by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any A/B Loan or any Mortgage Loan (other than the Bank of
America Center Mortgage Loan) (each such Mortgage Loan or A/B Loan, and any
related REO Loan, a "Required Appraisal Loan" unless and until such Mortgage
Loan or A/B Loan, and any related REO Loan, has become a Corrected Mortgage Loan
and no other Servicing Transfer Event has occurred with respect thereto during
the preceding three months, in which case it will cease to be a Required
Appraisal Loan), the Special Servicer shall obtain (or, if such Loan has a
Stated Principal Balance of $2,000,000 or less, at its discretion, conduct) an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been obtained (or, if applicable, conducted) within the preceding
12-month period and there has been no subsequent material change in the
circumstances surrounding the related Mortgaged Property that, in the judgment
of the Special Servicer, would materially affect the value of the property, and
shall deliver a copy of such Appraisal to the Trustee, the Master Servicer, 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved), any Requesting Subordinate
Certificateholder (subject to the second paragraph of Section 11.10). If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall determine
and report to the Trustee, the Master Servicer, the Directing Certificateholder,
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Loan.
For so long as any Mortgage Loan (other than the Bank of America
Center Mortgage Loan) or REO Loan (other than an REO Loan related to the Bank of
America Center Mortgage Loan) remains a Required Appraisal Loan, the Special
Servicer shall, within 30 days of each anniversary of such loan's having become
a Required Appraisal Loan, obtain (or, if such Required Appraisal Loan has a
Stated Principal Balance of $2,000,000 or less, at its discretion, conduct) an
update of the prior Appraisal, and shall deliver a copy of such update to the
Trustee, the Master Servicer, 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved). If such update is obtained from a Qualified Appraiser, the cost
thereof shall be covered by, and be reimbursable as, a Servicing Advance.
Promptly following the receipt of, and based upon, such update, the Special
Servicer shall redetermine and report to the Trustee, the Master Servicer, 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved), the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved), have the right at any time to
require that the Special Servicer obtain a new Appraisal of the subject
Mortgaged Property in accordance with MAI standards from an Appraiser selected
by the Special Servicer, at the expense of the Controlling Class
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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved). Upon receipt of such Appraisal the Special
Servicer shall deliver a copy thereof to the Trustee, the Master Servicer, 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved). Promptly following the receipt
of, and based upon, such Appraisal, the Special Servicer shall redetermine and
report to the Trustee, the Master Servicer, 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved), the then applicable Appraisal Reduction Amount, if any, with respect
to the subject Required Appraisal Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request) and to 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), copies of all Appraisals, environmental
reports and engineering reports (or, in each case, updates thereof) obtained
with respect to any Mortgaged Property or REO Property. Upon the request of any
Rating Agency or any Class J, Class K, Class L, Class M, Class N, Class O and
Class P Certificateholder, pursuant to Section 8.12(b), the Trustee will inform
the Master Servicer or Special Servicer, as applicable, of such request and, if
necessary, the Master Servicer or Special Servicer, as applicable, will deliver
instructions, whereupon either such party, as applicable, shall deliver copies
of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances which were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least ten Business Days
prior to the date on which failure to make such Servicing Advance would (with
notice from the Trustee regardless of whether such notice is actually received)
constitute an Event of Default pursuant to Section 7.01(a)(v); provided,
however, that the Special Servicer shall, with respect to Specially Serviced
Loans and REO Properties, make any Servicing Advance that it fails to timely
request the Master Servicer to make. Subject to the following paragraph, the
Master Servicer shall have the obligation to make any such Servicing Advance
that it is requested by the Special Servicer to make within five Business Days
of the Master Servicer's receipt of such request and such information and
documents as are reasonably necessary for the Master Servicer to make such
Servicing Advance and to determine recoverability. Subject to the foregoing, the
Special Servicer shall be relieved of any obligations with respect to a
Servicing Advance that it timely requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Servicing
Advance). The Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of the Special Servicer, together
with Advance Interest thereon, at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account by 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool (other
than the Bank of America Center Mortgage Loan)during the most recently ended
Collection Period, plus (ii) the lesser of (A) the aggregate amount of
Prepayment Interest Shortfalls, if any, incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (B) the aggregate of (1) that portion of its Master
Servicing Fees for the related Collection Period that is, in the case of each
and every Mortgage Loan and REO Loan for which such Master Servicing Fees are
being paid in such Collection Period, calculated at 0.02% per annum for Bank of
America Mortgage Loans and 0.01% per annum for GACC Mortgage Loans and GECC
Mortgage Loans, and (2) all Prepayment Interest Excesses received in respect of
the Mortgage Pool during the most recently ended Collection Period, plus (iii)
in the event that any Principal Prepayment was received on the last Business Day
of the second most recently ended Collection Period, but for any reason was not
included as part of the Master Servicer Remittance Amount for the preceding
Master Servicer Remittance Date (other than because of application of the
subject Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on the
amount of such Principal Prepayment while it is on deposit in the Certificate
Account or, in the case of a Mortgage Loan included in a Loan Pair, Section
3.05(f); provided, however, that if a Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the related Borrower to deviate from
the terms of the related Mortgage Loan documents regarding principal prepayments
(other than (v) on a Specially Serviced Mortgage Loan, (w) a payment of
insurance proceeds or condemnation proceeds, (x) a payment subsequent to a
default under the related Mortgage Loan documents (provided the Master Servicer
reasonably believes that acceptance of such payment is consistent with the
Servicing Standard and has obtained the consent of the Special Servicer), (y)
pursuant to applicable law or a court order, or (z) at the request or with the
consent of the Directing Certificateholder), then, for purposes of calculating
the Compensating Interest Payment for the subject Collection Period, the amount
in clause (ii) above shall be the aggregate of (A) all Master Servicing Fees for
such Collection Period and (B) all Prepayment Interest Excesses and, to the
extent earned on principal prepayments, Net Investment Earnings received by the
Master Servicer during such Collection Period; and provided, further, that the
rights of the Certificateholders to offset the aggregate Prepayment Interest
Shortfalls shall not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent. In each case subject to the Servicing Standard and applicable law and
to the extent permitted by the related Loan documents, the Master Servicer and
the Special Servicer agree not to accept any Principal Prepayments with respect
to any Loan on a date other than the applicable due date therefor except that
the Special Servicer shall be permitted to accept Principal Prepayments with the
consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Loan that is secured by
the interest of the related Mortgagor under a Ground Lease, promptly (and in any
event within 45 days) after the Closing Date 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.
(k) [Reserved].
(l) Subject to the Loan documents and applicable law, the Special
Servicer shall not consent to the foreclosure of any Mezzanine Loan other than
by a Permitted Mezzanine Loan Holder and shall not consent to the transfer of
any Mezzanine Loan except to a Permitted Mezzanine Loan Holder.
(m) Notwithstanding any other provision in this Agreement, including
Section 3.08, no "due-on-sale" provision shall be triggered solely because of
the right, if any, of any Mezzanine Loan Holder to foreclose upon the equity in
the related Borrower pursuant to, and subject to the terms and limitations of,
the related Mezzanine Loan and Mezzanine Intercreditor Agreement.
(n) Notwithstanding the foregoing, to the extent that any cash
amounts are held in a Servicing Account and the Mortgagee under the related Loan
documents is permitted, but not required, to apply such amounts to prepay the
related Loan, neither the Master Servicer nor the Special Servicer shall apply
such amounts to prepay the Loan until the Loan has become a Specially Serviced
Loan or until after the occurrence of an "Event of Default" under the Loan that
may result in the Loan being accelerated.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Loans (other than
the Bank of America Center Mortgage Loan)) and the Special Servicer (as to
Specially Serviced Loans (other than the Bank of America Center Mortgage Loan))
each may, consistent with the Servicing Standard, agree to any modification,
waiver or amendment of any term of, forgive or defer the payment of interest
(including, without limitation, Default Interest) on and principal of, forgive
late payment charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder without the consent of the Trustee or any
Certificateholder, subject, however, to Section 3.02, Section 3.08, Section 3.21
and Section 3.28 and each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08, 3.20(f)
and 3.21(g) the Master Servicer shall not agree to any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan,
that would affect the amount or timing of any related payment of
principal, interest or other amount payable under such Loan or affect the
security for such Loan, unless the Master Servicer has obtained the
consent of the Special Servicer (it being understood and agreed that (A)
the Master Servicer shall promptly provide the Special Servicer with
notice of any Mortgagor's request for such modification, waiver or
amendment, the Master Servicer's recommendations and analysis, and with
all information reasonably available to the Master Servicer that the
Special Servicer may reasonably request to withhold or grant any such
consent, each of which shall be provided reasonably promptly in accordance
with the Servicing Standard, (B) the Special Servicer shall decide whether
to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such request has not been expressly responded to
within ten Business Days of the Special Servicer's receipt from the Master
Servicer of the Master Servicer's recommendations and analysis and all
information reasonably requested thereby and reasonably available to the
Master Servicer to make an informed decision (or, if the Special Servicer
did not request any information, within ten Business Days from such
notice), such consent shall be deemed to have been granted);
(ii) [Reserved];
(iii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Loan, consent
to the Master Servicer's agreeing to) any modification, waiver or
amendment of any term of, or take (or, in the case of a Performing Loan,
consent to the Master Servicer's taking) any of the other acts referenced
in this Section 3.20(a) with respect to, any Loan that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the reasonable, good faith judgment of
the Special Servicer, would add to, release, substitute for, or otherwise
alter a material amount of the security for such Loan, unless a material
default on such Loan has occurred or, in the reasonable, good faith
judgment of the Special Servicer, a default in respect of payment on such
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a net present value basis
than would liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Loan, consent to the Master Servicer's extending) the date on
which any Balloon Payment is scheduled to be due on any Mortgage Loan to a
date beyond the earliest of (A)(i) two years prior to the Rated Final
Distribution Date with respect to the Non-Partitioned Loans and (ii) with
respect to the CS Component Mortgage Loan and the RP Component Mortgage
Loan, five years prior to the related Rated Final Distribution Date, and
(B) if such Loan is secured by a Mortgage solely or primarily on the
related Mortgagor's leasehold interest in the related Mortgaged Property,
20 years (or, to the extent consistent with the Servicing Standard, giving
due consideration to the remaining term of the Ground Lease, 10 years)
prior to the end of the then current term of the related Ground Lease
(plus any unilateral options to extend);
(v) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would result in an Adverse REMIC Event with respect
to any of the Component Mortgage Loan REMIC, REMIC I or REMIC II;
(vi) subject to applicable law, the related Mortgage Loan documents
and the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term of
any Mortgage Loan unless all related fees and expenses are paid by the
related Mortgagor;
(vii) with respect to Performing Loans, the Special Servicer shall
not permit (or, in the case of a Performing Loan, consent to the Master
Servicer's permitting) any Mortgagor to add or substitute any real estate
collateral for its Loan unless the Special Servicer shall have first
determined in its reasonable, good faith judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that
the Special Servicer deems necessary and prudent) conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments, at the expense of the Mortgagor, that such additional or
substitute collateral is in compliance with applicable environmental laws
and regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under
any then applicable environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) above, any
collateral securing an outstanding Loan, except as provided in Section
3.09(d), or except where a Loan (or, in the case of a Cross-Collateralized
Group, where such entire Cross-Collateralized Group) is satisfied, or
except in the case of a release where (A) either (1) the use of the
collateral to be released will not, in the good faith and reasonable
judgment of the Special Servicer, materially and adversely affect the net
operating income being generated by or the use of the related Mortgaged
Property, or (2) there is a corresponding principal pay down of such Loan
in an amount at least equal to the appraised value of the collateral to be
released (or substitute collateral with an appraised value at least equal
to that of the collateral to be released, is delivered), (B) the remaining
Mortgaged Property (together with any substitute collateral) is, in the
Special Servicer's good faith and reasonable judgment, adequate security
for the remaining Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (viii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Loan that either occurs automatically, or results from the exercise of a
unilateral option by the related Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage
Loan, on the related date of substitution); provided, further, that,
notwithstanding clauses (i) through (viii) above, neither the Master Servicer
nor the Special Servicer shall be required to oppose the confirmation of a plan
in any bankruptcy or similar proceeding involving a Mortgagor if, in its
reasonable, good faith judgment, such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar; and provided,
further, that, notwithstanding clause (viii) above, neither the Master Servicer
nor the Special Servicer shall be required to obtain any confirmation of the
Certificate ratings from the Rating Agencies to grant, or to subordinate the
lien of Loans to, easements that do not materially affect the use or value of a
Mortgaged Property or the Mortgagor's ability to make any payments with respect
to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of a Loan
Pair, the related Companion Loan Noteholders (as a collective whole) or any
other Person if its analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) is reasonably likely
to produce a greater recovery to Certificateholders and in the case of a Loan
Pair, the related Companion Loan Noteholders (as a collective whole) on a net
present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis by the Special Servicer or the Master Servicer, as applicable, consistent
with the Servicing Standard. Each such determination shall be evidenced by an
Officer's Certificate to such effect to be delivered by the Special Servicer to
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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved). The Special Servicer shall
include with any such Officer's Certificate the supporting documentation forming
the basis for its conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Loans (other than the Bank
of America Center Mortgage Loan)) and the Special Servicer (as to Loans (other
than the Bank of America Center Mortgage Loan)) each may, as a condition to its
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Mortgage Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Mortgage Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Mortgage Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Loans pursuant to the preceding subsections of
this Section 3.20 shall be in writing. Each of the Master Servicer and the
Special Servicer shall notify the other such party, 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), in writing, of any modification, waiver,
amendment or other action entered into or taken in respect of any Loan pursuant
to this Section 3.20 and the date thereof, and shall deliver to the Trustee or
the related Custodian for deposit into the related Mortgage File (with a copy to
the other such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within ten Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer
shall deliver to the Master Servicer and the Trustee an Officer's Certificate
setting forth in reasonable detail the basis of the determination made by it
pursuant to clause (ii) of Section 3.20(a).
(f) [Reserved].
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies (subject to any prohibitions set
forth in a Co-Lender Agreement, if applicable) in order to approve the following
modifications, waivers or amendments of Performing Loans (other than the Bank of
America Center Mortgage Loan): (i) waivers of minor covenant defaults (other
than financial covenants), including late financial statements; (ii) releases of
(A) non-material parcels of a Mortgaged Property subject to condemnation; (B)
parcels of a Mortgaged Property not given any value in the underwriting of the
Mortgage Loan; or (C) similar non-material parcels of a Mortgaged Property;
(iii) grants of easements or subordinations of the lien of Loans to easements
that do not materially affect the use or value of a Mortgaged Property or a
borrower's ability to make any payments with respect to the related Loan; and
(iv) other routine approvals, including the granting of subordination,
non-disturbance and attornment agreements and leasing consents, typically
performed by a Master Servicer on a routine basis; provided that any such
modification, waiver or amendment (w) would not in any way affect a payment term
of the Certificates, (x) would not constitute a "significant modification" of
such Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event, (y) agreeing to such modification,
waiver or amendment would be consistent with the Servicing Standard, and (z)
agreeing to such modification, waiver or amendment shall not violate the terms,
provisions or limitations of this Agreement or any other document contemplated
hereby.
(h) In connection with granting an extension of the maturity date of
any Loan (other than the Bank of America Center Mortgage Loan) in accordance
with Section 3.20(a), the Special Servicer, in the case of a Specially Serviced
Loan (other than the Bank of America Center Mortgage Loan), and the Master
Servicer, in the case of a Performing Loan (other than the Bank of America
Center Mortgage Loan), shall each cause the related Mortgagor to agree, if it
has not already done so pursuant to the existing Mortgage Loan documents, to
thereafter deliver 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), audited operating statements on a quarterly
basis with respect to the related Mortgaged Property, provided that the Special
Servicer or the Master Servicer, as the case may be, may, in its sole
discretion, waive the requirement that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Mortgage Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
(j) Notwithstanding the foregoing, solely with respect to any GECC
Loans that are not Specially Serviced Loans and for so long as no GECC Primary
Servicer Event of Default exists, the rights, obligations and responsibilities
(including any fee sharing) under Section 3.20(g), shall be exercised by the
GECC Primary Servicer and not by the Master Servicer, and the Master Servicer
shall have no liability or obligation with respect thereto whatsoever.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan (other than the Bank of America Center Mortgage Loan),
the Master Servicer shall immediately give notice thereof to 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 A/B Loan is
involved) and the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved), and deliver the related Servicing File to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (or copies thereof) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to the Loan and reasonably requested by the Special Servicer to enable
it to assume its functions hereunder with respect thereto without acting through
a Sub-Servicer. Notwithstanding anything in Section 2.01(b) or any other
provision of this Agreement to the contrary, the copying and delivery of such
documents, instruments, items, records and information shall not be at the
expense of the Special Servicer. At its option, although its Sub-Servicing
Agreement is terminated, the related Sub-Servicer, without any compensation
therefor, may retain Loans on its computer systems while such Loans are
Specially Serviced Loans, provided that no Sub-Servicer shall take any action
with respect thereto so long as such Loan is a Specially Serviced Loan and
provided that the Master Servicer shall assume all the Master Servicing duties
with respect to that Loan as provided in the second succeeding paragraph. The
Master Servicer shall use its best efforts to comply with the third preceding
sentence within five Business Days of the occurrence of each related Servicing
Transfer Event. The Master Servicer shall deliver to each Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificateholder that shall have
requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section. No later than ten Business Days before the Master Servicer is
required to deliver a copy of the related Servicing File to the Special
Servicer, it shall review the Servicing File and request from the Trustee any
material documents that it is aware are missing from the Servicing File. If the
related Sub-Servicer elects not to retain Specially Serviced Loans on its
computer systems, then such Sub-Servicer shall return all Mortgage Files to the
Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, the Special Servicer shall promptly give notice thereof to the
Master Servicer and to 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 A/B Loan is involved) and the Summit Place
Apartments B Noteholder (if the Summit Place Apartments A/B Loan is involved),
and return the related Servicing File to the Master Servicer within five
Business Days and upon giving such notice and returning such Servicing File to
the Master Servicer, the Special Servicer's obligation to service such Loan, and
the Special Servicer's right to receive the Special Servicing Fee with respect
to such Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03 of this Agreement, of a Cross-Collateralized Loan as a result of a
Servicing Transfer Event or the re-assumption of servicing responsibilities by
the Master Servicer with respect to any such Loan upon its becoming a Corrected
Loan, the Master Servicer and the Special Servicer shall each transfer to the
other, as and when applicable, the servicing of all other Cross-Collateralized
Loans constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Loan may become a Corrected Loan at any time that a
continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Loan is a Specially
Serviced Loan, for inclusion in the related Mortgage File (with a copy of each
such original to the Master Servicer), and provide to the Master Servicer copies
of any additional related Loan information, including correspondence with the
related Mortgagor generated while such Loan is a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Loan is
transferred from the Master Servicer to the Special Servicer pursuant to the
terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master 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 A/B Loan is involved) and the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved) a report (the "Asset Status Report") with respect to such Mortgage
Loan and the related Mortgaged Property. Such Asset Status Report shall set
forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, 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
A/B Loan is involved and subject to the related Co-Lender Agreement) or the
Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B Loan is
involved and subject to the related Co-Lender Agreement) does not disapprove
such Asset Status Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report; provided, however,
that the Special Servicer may not take any action that is contrary to applicable
law, the Servicing Standard or the terms of the applicable Mortgage Loan
documents. If 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 A/B Loan is involved and subject to the related Co-Lender Agreement)
or the Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B
Loan is involved and subject to the related Co-Lender Agreement) disapproves
such Asset Status Report, the Special Servicer will revise such Asset Status
Report and deliver to 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 A/B Loan is involved and subject to the related Co-Lender
Agreement), the Summit Place Apartments B Noteholder (if the Summit Place
Apartments A/B Loan is involved and subject to the related Co-Lender Agreement),
the Rating Agencies, the Trustee and the Master Servicer a new Asset Status
Report as soon as practicable, but no later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the earlier of (x) the delivery by 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 A/B Loan is
involved and subject to the related Co-Lender Agreement) or the Summit Place
Apartments B Noteholder (if the Summit Place Apartments A/B Loan is involved and
subject to the related Co-Lender Agreement) of an affirmative approval in
writing of such revised Asset Status Report; (y) the failure of 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 A/B Loan is
involved and subject to the related Co-Lender Agreement) or the Summit Place
Apartments B Noteholder (if the Summit Place Apartments A/B Loan is involved and
subject to the related Co-Lender Agreement) to disapprove such revised Asset
Status Report in writing within ten Business Days of its receipt thereof; or (z)
the passage of 90 days from the date of preparation of the initial version of
the Asset Status Report. Following the earliest of such events, and subject to
the terms of Section 3.20, the Special Servicer shall implement the recommended
action as outlined in the most recent version of such Asset Status Report
(provided that the Special Servicer shall not take any action that is contrary
to applicable law or the terms of the applicable Mortgage Loan documents). The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement the new action in such revised report so long
as such revised report has been prepared, reviewed and either approved or not
rejected as provided above. Notwithstanding the foregoing, the consent rights of
the ICG Portfolio B Noteholder (if the ICG Portfolio A/B Loan is involved) or
the Summit Place Apartments B Noteholder (if the Summit Place Apartments A/B
Loan is involved) shall be limited to those items in the related Co-Lender
Agreement and shall cease upon the termination of the purchase option in the
related Co-Lender Agreement. For the avoidance of doubt, any action to be taken
(or not taken) by the Special Servicer with respect to an Asset Status Report
must be in all respects consistent with the Servicing Standard and applicable
law.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required to act in accordance with the Servicing
Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder, the CS Controlling Holder (if the
CS Component Mortgage Loan is involved) or the RP Controlling Holder (if the RP
Component Mortgage Loan is involved) with not less than ten Business Days' prior
notice (except as provided in Section 3.08(a) hereof) of any Special Action (as
described below) that the Special Servicer or the Master Servicer, as
applicable, proposes to take in accordance with this Agreement and, in the case
of the Special Action described in clause (vi) below, the Special Servicer shall
also contemporaneously notify the Master Servicer; provided, however, that if a
shorter period of notice is necessary to avoid the occurrence of an Adverse
REMIC Event or a violation of the third paragraph of this Section 3.21(e), then
the required period of notice shall be such shorter period.
The Directing Certificateholder (with respect to the Non-Partitioned
Loans and the Post CAP Loans), the CS Controlling Holder (with respect to the CS
Component Mortgage Loan so long as a CS Control Appraisal Period does not exist)
and the RP Controlling Holder (with respect to the RP Component Mortgage Loan so
long as an RP Control Appraisal Period does not exist) shall be entitled to
advise the Special Servicer with respect to any Special Action, and
notwithstanding anything to the contrary contained herein, the Special Servicer
shall not take any Special Action if the Directing Certificateholder (with
respect to the Non-Partitioned Loans and the Post CAP Loans), the CS Controlling
Holder (with respect to the CS Component Mortgage Loan so long as a CS Control
Appraisal Period does not exist) and the RP Controlling Holder (with respect to
the RP Component Mortgage Loan so long as an RP Control Appraisal Period does
not exist) has objected thereto by the close of business on the tenth Business
Day following its receipt of notice thereof, or if a shorter period was
necessitated in accordance with the preceding sentence, by the close of business
on the date on which such shorter period expires (it being understood that the
failure of the Directing Certificateholder, the CS Controlling Holder and the RP
Controlling Holder, as applicable, to respond in the time frame set forth in the
Approval Provisions shall be deemed to constitute such party's approval of such
action); provided, however, that (x) the ability of the Directing
Certificateholder, CS Controlling Holder and RP Controlling Holder, as
applicable, to so advise or object shall in all events be subject to Section
3.21(f) and shall not violate the provisions of any Co-Lender Agreement, (y) the
Master Servicer or the Special Servicer, as applicable, shall not follow any
such advice or objection that would result in a violation of this Agreement,
including Section 3.21(e), the Loan documents or applicable laws, otherwise
result in an Adverse REMIC Event or violate the provisions of any Co-Lender
Agreement and (z) if (a) the Directing Certificateholder, the CS Controlling
Holder and the RP Controlling Holder, as applicable, and (b) the Special
Servicer cannot agree upon a course of action with respect to any Special
Action, then, subject to Section 3.21(f), the Special Servicer shall implement
the Directing Certificateholder's proposed course of action. Subject to the
foregoing, in connection with the implementation of any Special Action or the
extension of the maturity date of a Mortgage Loan, the Master Servicer or
Special Servicer shall comply with the Approval Provisions, as applicable. For
purposes hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification or waiver of a Loan except as provided in
Section 3.20(g);
(iii) any proposed or actual sale of a Defaulted Mortgage Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18 or Section 4 of the related Mortgage Loan
Purchase and Sale Agreement);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless the lender is required to accept such collateral by the underlying
loan documents and any release of the real estate collateral securing the
Loan (except as permitted by clause (ii) of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Mortgage Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Mortgage Loan;
(ix) any release of earnout reserve funds;
(x) any release of a letter of credit (other than where the
underlying Mortgage Loan documents in connection with such release provide
that such release is automatic based on certain conditions set forth in
the related underlying Mortgage Loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space); or
(xii) any change in property manager or franchise.
(f) Notwithstanding anything contained in this Agreement to the
contrary, no objection or direction of the Directing Certificateholder, the CS
Controlling Holder, RP Controlling Holder, the ICG Portfolio B Noteholder or the
Summit Place Apartments B Noteholder, as applicable, shall (A) require or cause
the Master Servicer or the Special Servicer, as applicable, to violate the terms
of any Loan then serviced by it, applicable law or any provision of this
Agreement, including the Master Servicer's obligation or the Special Servicer's
obligation to act in accordance with the Servicing Standard and to maintain the
REMIC status of each of the Component Mortgage Loan REMIC, REMIC I or REMIC II,
or (B) result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (C) expose the Master Servicer,
the Special Servicer, the Depositor, the Trust Fund, the Trustee or their
officers, directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement (the "Prohibited Actions"). The Master
Servicer or Special Servicer, as applicable, shall disregard any such direction
or objection.
The Directing Certificateholder, the CS Controlling Holder, the RP
Controlling Holder, the ICG Portfolio B Noteholder, and the Summit Place
Apartments B Noteholder, as applicable, will have no liability to the
Certificateholders other than the Holders of the Controlling Class, and shall
have no liability to any Holder of the Controlling Class for any action taken,
or for refraining from the taking of any action, pursuant to this Agreement, or
for errors in judgment; provided, however, that the Directing Certificateholder,
the CS Controlling Holder, the RP Controlling Holder, the ICG Portfolio B
Noteholder, and the Summit Place Apartments B Noteholder, as applicable, will
not be protected against any liability to any Holder of the Controlling Class
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder, the CS Controlling Holder, the RP Controlling Holder, the ICG
Portfolio B Noteholder, and the Summit Place Apartments B Noteholder, as
applicable, may take actions that favor the interests of one or more Classes of
the Certificates over other Classes of the Certificates, and that the Directing
Certificateholder, the CS Controlling Holder, the RP Controlling Holder, the ICG
Portfolio B Noteholder, and the Summit Place Apartments B Noteholder, as
applicable, may have special relationships and interests that conflict with
those of Holders of some Classes of the Certificates, that the Directing
Certificateholder, the CS Controlling Holder, the RP Controlling Holder, the ICG
Portfolio B Noteholder, and the Summit Place Apartments B Noteholder, as
applicable, may act solely in the interests of the Holders of the Controlling
Class, that none of the Directing Certificateholder, the CS Controlling Holder,
the RP Controlling Holder, the ICG Portfolio B Noteholder, and the Summit Place
Apartments B Noteholder, as applicable, has any duties to the Holders of any
Class of Certificates other than the Controlling Class, that none of the
Directing Certificateholder, the CS Controlling Holder, the RP Controlling
Holder, the ICG Portfolio B Noteholder, and the Summit Place Apartments B
Noteholder, as applicable, shall be deemed to have been negligent or reckless,
or to have acted in bad faith or engaged in willful misfeasance, by reason of
its having acted solely in the interests of the Holders of the Controlling
Class, the CS Controlling Holder, the RP Controlling Holder, the ICG Portfolio B
Noteholder, and the Summit Place Apartments B Noteholder, as applicable, that
none of the Directing Certificateholder, the CS Controlling Holder, the RP
Controlling Holder, the ICG Portfolio B Noteholder, and the Summit Place
Apartments B Noteholder, as applicable, shall have any liability whatsoever for
having so acted, and no Certificateholder may take any action whatsoever against
the Directing Certificateholder, the CS Controlling Holder, the RP Controlling
Holder, the ICG Portfolio B Noteholder, and the Summit Place Apartments B
Noteholder, as applicable, or any director, officer, employee, agent or
principal thereof for having so acted.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (in the case of the
Special Servicer, with the consent of the Directing Certificateholder) may each
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust, or if a Loan
Pair is involved, the related Companion Loan Noteholders, is consistent with
this Agreement in all material respects; (ii) expressly or effectively provides
that if the Master Servicer or Special Servicer, as the case may be, shall for
any reason no longer act in such capacity hereunder (including, without
limitation, by reason of an Event of Default), any successor to the Master
Servicer or the Special Servicer, as the case may be, hereunder (including the
Trustee if the Trustee has become such successor pursuant to Section 7.02) may
thereupon either assume all of the rights and, except to the extent they arose
prior to the date of assumption, obligations of the Master Servicer or Special
Servicer, as the case may be, under such agreement; or, except with respect to
those Sub-Servicing Agreements listed on Schedule II and subject to the
provisions of Section 3.22(d), terminate such rights and obligations; (iii) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
expressly or effectively provides that such agreement shall be suspended with
respect to any Loan serviced thereunder at the time such Loan becomes a
Specially Serviced Loan; (iv) in the case of a Sub-Servicing Agreement entered
into by the Special Servicer, relates only to Specially Serviced Loans or REO
Properties and expressly or effectively provides that such agreement shall
terminate with respect to any such Loan that becomes a Corrected Loan; (v) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
provides that the related Sub-Servicer shall comply with all reasonable requests
for additional information made by the Master Servicer (provided, however, that
the related Sub-Servicer shall not be required to furnish the same information
to the Master Servicer more than once) and, further, provides that the failure
of the related Sub-Servicer to furnish the Master Servicer on a timely basis
with any required reports, statements or other information, including without
limitation, the reports referred to in Section 3.12(a), either (A) shall permit
the Master Servicer to make necessary inquiries of the related borrower directly
or (B) shall (subject to a cure period not to exceed 60 days) constitute an
event of default thereunder for which the Master Servicer may terminate such
Sub-Servicer without payment of any termination fee (it being understood that
notwithstanding anything to the contrary in this clause (v), the obligations of
a Sub-Servicer in respect of the second sentence of Section 3.12(b) hereof may
be limited to the provision of reports as agreed between the Master Servicer and
such Sub-Servicer and response to reasonable inquiries from the Master Servicer
with respect thereto); (vi) subject to Section 3.08, does not authorize any
Sub-Servicer to approve a modification or assumption of any Loan without the
approval of the Master Servicer, in the case of Performing Loans or of the
Special Servicer, in the case of Specially Serviced Loans or authorizes the
Sub-Servicer to foreclose any Loan without the approval of the Special Servicer;
(vii) imposes no liability whatsoever on the Trustee, the Certificateholders or
in the case of a Loan Pair, the related Companion Loan Noteholder, the Master
Servicer or the Special Servicer that are not parties to such Sub-Servicing
Agreement with respect to anything contained therein; (viii) provides that the
Master Servicer and the Special Servicer each shall pay the fees of any
Sub-Servicer retained by it in accordance with the respective Sub-Servicing
Agreement and, in any event, from its own funds; and (ix) contain events of
default materially similar to an Event of Default hereunder for the Master
Servicer and/or the Special Servicer, as the case may be. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(g) and/or
Section 4.03(d), such interest to be allocable between the Master Servicer and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee or in the case of a Loan Pair, the related Companion Loan Noteholder and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer,
and shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Loans it is to service are situated, if and to the
extent required by applicable law, and (ii) to the extent sub-servicing
multifamily loans, shall be an approved conventional seller/servicer of
multifamily mortgage loans for Freddie Mac or Fannie Mae or a HUD-Approved
Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust or in the case of a Loan Pair, the related
Companion Loan Noteholder) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as the case may
be, in its reasonable business judgment, would require were it the owner of the
Loans. Promptly upon becoming aware of a default under any Sub-Servicing
Agreement to which it is a party, the Master Servicer or the Special Servicer,
as the case may be, shall notify each of the other parties hereto and the
Trustee, and then the Trustee shall provide a copy of such notice to 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
A/B Loan is involved) and the Summit Place Apartments B Noteholder (if the
Summit Place Apartments A/B Loan is involved), and, in accordance with Section
8.12(b), shall, upon request, provide a copy of such notice to each Class, E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificateholder of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee), (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer and on such terms as the new Master Servicer and such Sub-Servicer
shall mutually agree (it being understood that such Sub-Servicer is under no
obligation to accept any such new Sub-Servicing Agreement or to enter into or
continue negotiations with the new Master Servicer) or (iii) except with respect
to those Sub-Servicing Agreements listed on Schedule II, which may only be
terminated for cause, to terminate such Sub-Servicing Agreement without cause
provided that such Sub-Servicing Agreements have events of default that are
similar to the Events of Default set forth in Section 7.01 of this Agreement.
Nothing in the foregoing provisions of this Section 3.22(d) shall limit the
ability of the initial or a successor Master Servicer to terminate a
Sub-Servicer at any time for cause; provided, however, that the parties hereto
understand and agree that the refusal or failure of a Sub-Servicer to enter into
or continue negotiations with a successor Master Servicer concerning a new
Sub-Servicing Agreement shall not constitute cause for termination. References
in this Section 3.22(d) to Master Servicer, successor Master Servicer or
subsequent successor Master Servicer shall mean the Trustee, if it is then
Master Servicer, successor Master Servicer or subsequent Master Servicer
pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use its
best efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Loans (other than the Bank of America Center Mortgage Loan)
for which it is responsible; provided, however, with respect to the GEMSA
Sub-Servicing Agreement, the Master Servicer shall have no obligation to monitor
the GECC Primary Servicer's obligations pursuant to Sections 3.08 and 3.20 and
shall have no liability for actions taken by the GECC Primary Servicer pursuant
to Sections 3.08 and 3.20.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Loan that it sub-services pursuant to such agreement on
behalf of the Master Servicer for the benefit of the Certificateholders provided
that it shall provide a copy of such letter of credit to the Master Servicer.
(i) In the event the GECC Primary Servicer is not an acceptable or
approved master servicer (which, in the case of S&P means that the GECC Primary
Servicer is not on S&P's approved master servicer list) or primary servicer to a
Rating Agency, the GECC Primary Servicer shall have 30 days after notice from
the Trustee or the Master Servicer to either (i) cure such failure or (ii)
assign the related Sub-Servicing Agreement to a Successful Sub-Servicing Bidder
(as defined below). If the GECC Primary Servicer fails to either (i) cure such
failure or (ii) assign such Sub-Servicing Agreement to a Successful
Sub-Servicing Bidder, the Trustee or the Master Servicer may terminate such
Sub-Servicing Agreement.
(j) A "Successful Sub-Servicing Bidder" will be any prospective
sub-servicer candidate reasonably acceptable to the Depositor, the Master
Servicer and acceptable to the Rating Agencies, as evidenced by written
confirmation from each of the Rating Agencies that the assumption by such
Successful Sub-Servicing Bidder of such Sub-Servicing Agreement and the
representations and warranties made by such Successful Sub-Servicing Bidder in
such Sub-Servicing Agreement, will not cause the downgrade, withdrawal or
qualification of the then current ratings of the Certificates, which candidate
would be eligible to act as Sub-Servicer hereunder.
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer. Such Majority Certificateholder shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation. The Trustee shall, promptly after receiving any
such notice, so notify the Rating Agencies. The designated Person shall become
the Special Servicer as of the date the Trustee shall have received: (i) written
confirmation from each Rating Agency stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then-current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would be downgraded, qualified (if applicable) or withdrawn as a result thereof;
(ii) a written acceptance of all obligations of the Special Servicer under this
Agreement, executed by the designated Person; and (iii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23, that upon the execution and delivery of the
written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the terminated or resigned, as
applicable, Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) it shall be entitled to certain Workout Fees thereafter received to the
extent permitted by Section 3.11(c), and (iii) it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03, notwithstanding any such termination or resignation. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties. The Majority Certificateholder of the
Controlling Class shall be responsible for paying any costs associated with such
replacement, including the reasonable costs of any servicing transfer.
Section 3.24 Confidentiality.
Notwithstanding any terms to the contrary in Section 3.19(a), the
Master Servicer and the Special Servicer will use reasonable efforts to keep
confidential and not disclose to any Person other than each other, the
Depositor, the Trustee, the Controlling Class Certificateholder, the
Sub-Servicer (with respect to any Loans it is sub-servicing), a Borrower (with
respect to the related Mortgage Loan), any Certificateholder, any Companion Loan
Noteholder and the Rating Agencies, any information which it obtains in its
capacity as Master Servicer or Special Servicer with respect to the Loans or any
related Mortgagor including, without limitation, credit information with respect
to any such Mortgagor (collectively, "Confidential Information"), except (i) any
officers, directors and employees of the Master Servicer or Special Servicer (or
any officers, directors and employees of any Affiliates of the Master Servicer
or Special Servicer); (ii) auditors of the Master Servicer or the Special
Servicer and any agents, financial or tax advisors, attorneys, accountants and
professional consultants retained by the Master Servicer or the Special Servicer
in connection with the transactions contemplated by this Agreement which have
been informed of the confidential nature of the information provided to them;
(iii) each Mortgage Loan Seller with respect to information relating to the
Loans transferred into the Trust by such Mortgage Loan Seller; (iv) a potential
purchaser (or a licensed or registered investment advisor on their behalf) of
servicing rights hereunder which has agreed to keep such information
confidential; (v) to the extent the Master Servicer or Special Servicer deems
such disclosure to be reasonably necessary in carrying out its duties pursuant
to this Agreement or any Sub-Servicing Agreement; (vi) to the extent such
information is publicly available or otherwise available from sources unrelated
to this transaction; (vii) to the extent such disclosure is required by law or
court order or is demanded pursuant to a subpoena; (viii) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder; (ix) to the extent
the Depositor consents in writing to such disclosure; (x) the GECC Primary
Servicer with respect to the GECC Loans with respect to information related to
such GECC Loans in the ordinary course of the GECC Primary Servicer's business;
or (xi) the Master Servicer with respect to its ordinary course of business with
respect to the Loans. For purposes of this paragraph, the terms "Master
Servicer" and "Special Servicer" shall mean the divisions or departments of such
corporate entities involved in providing services hereunder and their respective
officers, directors and employees. Notwithstanding anything in this Section 3.24
to the contrary, the Master Servicer, and any Sub-Servicer with the prior
written permission of the Master Servicer, may disseminate pool-wide and general
statistical information relating to the Mortgage Loans and the Mortgage Loan
portfolio being serviced (as to any Sub-Servicer, limited to its own
sub-serviced portfolio), so long as no Mortgagors are identified.
Section 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Loans; provided, however, that the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer, or otherwise by a division or department of, or an Affiliate of, the
Master Servicer or the Special Servicer if such solicitation occurs incidentally
in the normal course of business and such solicitation is not conducted, in
whole or in part, (i) by an individual engaged at any time in activities
relating to the servicing of Loans or (ii) based upon or otherwise with the
benefit of information obtained by or through the Master Servicer or Special
Servicer or from documentation relating to the Certificates, including without
limitation any listing of the Loans or related Mortgagors or Mortgaged
Properties. Each Sub-Servicing Agreement shall contain a provision identical to
the foregoing with respect to the related Sub-Servicer.
Section 3.26 Certain Matters with Respect to Mortgage Loans
Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
Permitting Additional Debt.
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance, provided the Master Servicer has received
an Opinion of Counsel that such defeasance complies with Treasury Regulations
Section 1.860G-2(a)(8). The Master Servicer shall accept as defeasance
collateral any "government security," within the meaning of Treasury Regulations
Section 1.860G-(2)(a)(8)(i), notwithstanding any more restrictive requirements
in the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $20,000,000 or more, or
constitutes 5% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, S&P and Moody's
each shall have confirmed to it in writing that such defeasance will not result
in the withdrawal, downgrade or qualification (if applicable) of the rating of
any Class of Certificates, (ii) it shall have obtained an Opinion of Counsel
that the defeasance complies with applicable REMIC Provisions; and (iii) it
shall have obtained an accountant's certification that the defeasance collateral
is sufficient to make payments under the related Mortgage Loan for the remainder
of its term. In the case of the defeasance of any Mortgage Loan that does not
require a Rating Agency confirmation pursuant to the immediately preceding
clause (i), the Master Servicer must provide to S&P after completion of the
defeasance a certification substantially in the form of Exhibit J hereto.
(e) With respect to each Loan that provides for defeasance, to the
extent permitted by the terms of such Loan, or if so requested by the Rating
Agencies, the Master Servicer shall use its best efforts to have the related
Mortgagor (i) designate a Single Purpose Entity (if the borrower no longer
complies) to assume the Loan and own the collateral and (ii) provide an opinion
from counsel that the Trustee has a perfected security interest in the new
collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more or constitutes 5% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related Mortgage Loan documents require the consent of the lender in order for
the related Mortgagor to change the manager of the related Mortgaged Property,
the Master Servicer shall not so consent to such a change in management unless
it has received (a) the prior consent of the Special Servicer, which will be
deemed given if such party has not responded within ten Business Days (as such
period may be extended herein if the consent of the Directing Certificateholder,
the CS Controlling Holder or the RP Controlling Holder is required hereunder)
following delivery of request for consent together with any information
reasonably necessary to make a decision and (b) a written confirmation from each
Rating Agency such a change in management, if effected, would not result in the
withdrawal, downgrade or qualification (if applicable) of the rating of any
Class of Certificates.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder,
the CS Controlling Holder or the RP Controlling Holder, as applicable, that
would result in a Prohibited Action.
Section 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to the Mortgage Pool, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to any Mortgage Loan or
REO Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to any Mortgage Loan or REO Loan in the Mortgage Pool
during the 12-month period preceding the receipt of such Default Charges,
which Advance Interest was paid from a source other than Default Charges
received on the Mortgage Pool;
third, to pay the Special Servicer for Servicing Advances made for
the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which expense was previously paid from a source other
than Default Charges received on the Mortgage Pool; and
fifth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Loan, and
otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Companion Loan or any successor REO Loan with respect thereto
during any Collection Period (as allocable thereto pursuant to the related loan
agreement), shall be applied for the following purposes and in the following
order, in each case to the extent of the remaining portion of such Default
Charges and net of any portion of such Default Charges, if any, that are
required to be paid to any Companion Loan Noteholder under any Co-Lender
Agreement and/or this Agreement:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any interest due and owing to such party on any
outstanding Advances made thereby with respect to any Mortgage Loan or REO
Loan in such Loan Pair or the related REO Mortgaged Property and
reimbursed in the related Collection Period (to be applied with respect to
any particular party in such manner that the interest that accrued first
and has been outstanding the longest shall be paid first); and
Second, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as Additional Master Servicing
Compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Loan, or as Additional Special Servicing Compensation to the
Special Servicer, to the extent received, if they were accrued with
respect to such Companion Loan during a period that it was a Specially
Serviced Loan or an REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Matters Regarding the Loan Pairs and the Bank of
America Center Whole Loan.
(a) The Companion Loan Noteholders will not have any liability to
the Trust or the Certificateholders for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the Companion Loan Noteholders will
not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of duties.
(b) The Companion Loan Noteholders shall be entitled to receive,
upon request, a copy of any notice or report required to be delivered (upon
request or otherwise) to the Trustee with respect to the related A/B Loan or any
related REO Property by any other party hereto. Any such other party shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies.
(c) Notwithstanding any provision in this Agreement to the contrary,
with respect to the ICG Portfolio A/B Loan, so long as the ICG Portfolio B
Noteholder shall be entitled to exercise the rights set forth in Section 16(a)
of ICG Portfolio Co-Lender Agreement, subject to any conditions, restrictions or
other provisions described in or incorporated by reference into such section,
the Master Servicer or Special Servicer, as applicable, shall comply with the
provisions therein contained in connection with taking or refraining from taking
the actions described therein; provided, however, that no advice, direction or
objection from or by the ICG Portfolio B Noteholder may (and the Master Servicer
or Special Servicer, as applicable, shall ignore and act without regard to any
such advice, direction or objection that the Master Servicer or Special
Servicer, as applicable, has determined, in its reasonable, good faith judgment,
would) require or cause the Master Servicer or Special Servicer, as applicable,
to violate any provision of this Agreement (including the Master Servicer's or
the Special Servicer's, as applicable, obligation to act in accordance with the
Servicing Standard), or the related Loan documents or the REMIC Provisions.
(d) Notwithstanding any provision in this Agreement to the contrary,
with respect to the Summit Place Apartments A/B Loan, so long as the Summit
Place Apartments B Noteholder shall be entitled to exercise the rights set forth
in Section 16(a) of Summit Place Apartments Co-Lender Agreement, subject to any
conditions, restrictions or other provisions described in or incorporated by
reference into such section, the Master Servicer or Special Servicer, as
applicable, shall comply with the provisions therein contained in connection
with taking or refraining from taking the actions described therein; provided,
however, that no advice, direction or objection from or by the Summit Place
Apartments B Noteholder may (and the Master Servicer or Special Servicer, as
applicable, shall ignore and act without regard to any such advice, direction or
objection that the Master Servicer or Special Servicer, as applicable, has
determined, in its reasonable, good faith judgment, would) require or cause the
Master Servicer or Special Servicer, as applicable, to violate any provision of
this Agreement (including the Master Servicer's or the Special Servicer's, as
applicable, obligation to act in accordance with the Servicing Standard), or the
related Loan documents or the REMIC Provisions.
(e) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in a Loan Pair is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the related Co-Lender
Agreement and shall assume the rights and obligations of the "Note A Holder," or
"Lead Lender," as the case may be, under the related Co-Lender Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as "Note A
Holder" (as a result of such purchase or repurchase), under the related
Co-Lender Agreement in the manner contemplated under such agreement, which such
purchaser shall be deemed to acknowledge. Thereafter, such Mortgage File shall
be held by the Note A Holder or a custodian appointed thereby for the benefit of
the "Note A Holder," or "Lead Lender," as the case may be, and the other Lenders
or "Co-Lender," as the case may be, as their interests appear under the related
Co-Lender Agreement. If the related Servicing File is not already in the
possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the Loan Pairs.
(f) In the event that any of the Bank of America Center Trustee, the
Bank of America Center Master Servicer or the Bank of America Center Special
Servicer shall be replaced in accordance with the terms of the Bank of America
Center Pooling Agreement, the Master Servicer and the Special Servicer shall
acknowledge any such successor as the successor to the Bank of America Center
Trustee, the Bank of America Center Master Servicer or the Bank of America
Center Special Servicer, as the case may be.
(g) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt from the Bank of America Center Master
Servicer, the Bank of America Center Special Servicer or the Bank of America
Center Trustee, any servicing reports concerning the Bank of America Center
Whole Loan.
(h) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Bank of America Center Mortgage Loan is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the Bank of America
Center Intercreditor Agreement and shall assume the rights and obligations of
the holder of "Note A3" under the Bank of America Center Intercreditor
Agreement. All portions of the related Mortgage File and other documents
pertaining to the Bank of America Center Mortgage Loan shall be endorsed or
assigned to the extent necessary or appropriate to the purchaser of such
Mortgage Loan in its capacity as the holder of "Note A3" (as a result of such
purchase or repurchase), under the Bank of America Center Intercreditor
Agreement in the manner contemplated under such agreement, which such purchaser
shall be deemed to acknowledge. Thereafter, such Mortgage File shall be held by
the Bank of America Center Pari Passu Note A-3 Holder or a custodian appointed
thereby for the benefit of the holder of "Note A3" and the other lenders,
co-lenders or intercreditors, as the case may be, as their interests appear
under the Bank of America Center Intercreditor Agreement. If the related
Servicing File is not already in the possession of such party, it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the Bank of America Center Whole Loan.
Section 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor.
(a) Each Majority Certificateholder of the CS Controlling Class (the
"CS Controlling Class Holder") and the RP Controlling Class (the "RP Controlling
Class Holder" and, together with the CS Controlling Class Holder, the "Loan
Specific Controlling Class Holders"), shall each be permitted to appoint an
"Operating Advisor" with respect to the related Loan. An Operating Advisor may
be the related Controlling Holder or any holder of the controlling interest in
the Controlling Class, any Certificateholder, or an unrelated third party for
such Mortgage Loan, with respect to any action which is to be taken with respect
to the CS Component Mortgage or the RP Component Mortgage Loan, as applicable,
and requires the related Loan Specific Class Holder's consent in its capacity as
CS Controlling Holder or RP Controlling Holder, as applicable. The party
entitled to appoint an Operating Advisor shall have the right in its sole
discretion at any time and from time to time to remove and replace such
Operating Advisor for the related Loans. No such Operating Advisor shall owe any
fiduciary duty or other duty to any other Person (other than the related Loan
Specific Controlling Class Holder). The Trustee shall not be required to
recognize any Person as constituting the Loan Specific Controlling Class Holder
until such Person provides the Trustee with evidence of such status (consisting
of copies of transfer documents or other instruments) as the Loan Specific
Controlling Class Holder, an address, e-mail address and telecopy number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and telecopy numbers). The Trustee shall not be
required to recognize any Person as an Operating Advisor until the Party
entitled to appoint such Operating Advisor has notified the Trustee of such
appointment and the Operating Advisor provides the Trustee with written
confirmation of its acceptance of such appointment, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers). The
Trustee shall promptly deliver such information to the Master Servicer and the
Special Servicer. Notwithstanding any other provision of this Agreement to the
contrary, the Master Servicer and the Special Servicer shall not be required to
recognize any person as the Majority Certificateholder of the Controlling Class,
the Directing Certificateholder, a Loan Specific Controlling Class Holder or an
Operating Advisor until they receive such information from the Trustee and shall
not be required to provide any notices or seek any approvals, consents or
direction from such party if such party has not been designated and identified
to the Master Servicer or the Special Servicer, as applicable, as provided
herein.
Each of the initial CS Controlling Holder and the RP Controlling
Holder and, if applicable, the related initial Operating Advisor shall be set
forth on Schedule V hereto. In addition the Master Servicer and/or the Special
Servicer shall have no affirmative duty to ascertain the existence of any
Operating Advisor. The Master Servicer or Special Servicer may from time to time
request that the Trustee provide a list identifying Operating Advisors with
respect to each Loan and the Trustee shall promptly provide such list. The
Master Servicer and the Special Servicer shall be entitled to conclusively rely
on such list.
The related Operating Advisor will be permitted to exercise all of
the rights of the related Loan Specific Controlling Class Holder except that no
Operating Advisor shall have any purchase option rights under Section 3.18(l) or
Section 3.18(m) with respect to the related Mortgage Loan. Any reference in this
Agreement, other than in Section 3.18(l) or Section 3.18(m), to any action to be
taken by the each Loan Specific Controlling Class Holder in its capacity as CS
Controlling Holder or RP Controlling Holder, as applicable, will mean such CS
Controlling Holder or RP Controlling Holder, as applicable, acting through its
related Operating Advisor if one has so been appointed. In addition, during the
existence and continuation of a Control Appraisal Period, no Operating Advisor
shall have any rights beyond those that the related Loan Specific Controlling
Class Holder would have had if such Operating Advisor was not appointed.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, immediately following the deemed
distributions in respect of the Component Mortgage Loan REMIC Senior Regular
Interest pursuant to Section 4.01(j) and Section 4.01(k), amounts held in the
REMIC I Distribution Account shall be withdrawn or deemed to be withdrawn (to
the extent of the Available Distribution Amount, the "REMIC I Distribution
Amount") in the case of all Classes of REMIC I Regular Interests and distributed
or deemed to be distributed on the REMIC I Regular Interests as set forth in
Section 4.01(a)(ii) and distributed on the Class R-I Certificates as set forth
in Section 4.01(a)(iii). Thereafter, until distributed to the
Certificateholders, such amounts shall be considered to be held in the REMIC II
Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates (in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses on (i) the Class A-1 Certificates,
first to the REMIC I Regular Interest LA-1-1, second to the REMIC I
Regular Interest LA-1-2, third to the REMIC I Regular Interest LA-1-3,
fourth to the REMIC I Regular Interest LA-1-4, and then to the REMIC I
Regular Interest LA-1-5, in each case, until reduced to zero, in each
case, until reduced to zero, (ii) the Class A-2 Certificates, first to the
REMIC I Regular Interest LA-2-1, second to the REMIC I Regular Interest
LA-2-2, third to the REMIC I Regular Interest LA-2-3, fourth to the REMIC
I Regular Interest LA-2-4, fifth to the REMIC I Regular Interest LA-2-5,
and then to the REMIC I Regular Interest LA-2-6, in each case, until
reduced to zero, (iii) the Class A-3 Certificates, first to the REMIC I
Regular Interest LA-3-1, second to the REMIC I Regular Interest LA-3-2,
third to the REMIC I Regular Interest LA-3-3, fourth to the REMIC I
Regular Interest LA-3-4, and then to the REMIC I Regular Interest LA-3-5,
in each case, until reduced to zero, in each case, until reduced to zero,
(iv) the Class A-AB Certificates, first to the REMIC I Regular Interest
LA-AB-1, second to the REMIC I Regular Interest LA-AB-2, third to the
REMIC I Regular Interest LA-AB-3, fourth to the REMIC I Regular Interest
LA-AB-4, and then to the REMIC I Regular Interest LA-AB-5, in each case,
until reduced to zero, (v) the Class A-4 Certificates, first to the REMIC
I Regular Interest LA-4-1 and then to the REMIC I Regular Interest LA-4-2,
in each case, until reduced to zero, (vi) the Class A-1A Certificates,
first to the REMIC I Regular Interest LA-1A-1, second to the REMIC I
Regular Interest LA-1A-2, third to the REMIC I Regular Interest LA-1A-3,
fourth to the REMIC I Regular Interest LA-1A-4, fifth to the REMIC I
Regular Interest LA-1A-5, sixth to the REMIC I Regular Interest LA-1A-6,
seventh to the REMIC I Regular Interest LA-1A-7, eighth to the REMIC I
Regular Interest LA-1A-8, ninth to the REMIC I Regular Interest LA-1A-9,
tenth to the REMIC I Regular Interest LA-1A-10, eleventh to the REMIC I
Regular Interest LA-1A-11, twelfth to the REMIC I Regular Interest
LA-1A-12, thirteenth to the REMIC I Regular Interest LA-1A-13, fourteenth
to the REMIC I Regular Interest LA-1A-14, and then to the REMIC I Regular
Interest LA-1A-15, in each case, until reduced to zero, (vii) the Class E
Certificates, first to the REMIC I Regular Interest LE-1, second to the
REMIC I Regular Interest LE-2, and then to the REMIC I Regular Interest
LE-3, in each case, until reduced to zero, (viii) the Class F
Certificates, first to the REMIC I Regular Interest LF-1, second to the
REMIC I Regular Interest LF-2, third to the REMIC I Regular Interest LF-3,
and then to the REMIC I Regular Interest LF-4, in each case, until reduced
to zero, (ix) the Class G Certificates, first to the REMIC I Regular
Interest LG-1, and then to the REMIC I Regular Interest LG-2, in each
case, until reduced to zero, (x) the Class H Certificates, first to the
REMIC I Regular Interest LH-1, second to the REMIC I Regular Interest
LH-2, and then to the REMIC Regular Interest LH-3, in each case, until
reduced to zero, (xi) the Class J Certificates, first to the REMIC I
Regular Interest LJ-1, and then to the REMIC I Regular Interest LJ-2, in
each case, until reduced to zero, and (xii) the Class K Certificates,
first to the REMIC I Regular Interest LK-1 and then to the REMIC I Regular
Interest LK-2, in each case, until reduced to zero), except that, solely
for this purpose, all calculations of interest with respect to the
Corresponding REMIC I Regular Interests shall be made as though the Class
A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, 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 and Class P Certificate
Pass-Through Rates were equal to the Weighted Average Adjusted Net
Mortgage Rate and as though the Class XC Notional Amount and the Class XP
Notional Amount were zero at all times and such that the amounts and
timing of interest distributions on each Corresponding REMIC I Regular
Interest represent the aggregate of the corresponding amounts on each
Class of Corresponding Certificates (or portion thereof) and its related
Component or Components of the Class XC and Class XP Certificates;
provided that (A) interest shall be deemed distributed on such REMIC I
Regular Interest only in the same priority and to the extent actually
distributable on such related Class of Certificates or related Component
and (B) interest distributable on a Class of Class X Certificates shall be
distributable pro rata among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Regular Certificates in the order of
priority set forth in clauses (i) through (xlix) below, satisfying in full, to
the extent required and possible, each priority before making any distribution
with respect to any succeeding priority.
(i) concurrently, (i) from the Loan Group 1 Available Distribution
Amount, distributions of interest to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates and Class A-4 Certificates, up to an amount equal to, and pro
rata as among such Classes in accordance with, all Distributable
Certificate Interest in respect of each such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any, (ii) from the Loan Group 2 Available
Distribution Amount, distributions of interest to the Holders of the Class
A-1A Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior distribution
dates, if any, and (iii) from the Loan Group 1 Available Distribution
Amount and/or the Loan Group 2 Available Distribution Amount,
distributions of interest to the Holders of the Class XC and Class XP
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any; provided, however, that if the Loan Group 1
Available Distribution Amount and/or the Loan Group 2 Available
Distribution Amount is insufficient to pay in full the total amount of
Distributable Certificate Interest, as provided above, payable in respect
of any Class of Senior Certificates on such Distribution Date, then the
entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Senior Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates, if
any;
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates and the Class A-1A
Certificates in reduction of the Class Principal Balances thereof (A) (1)
first, to the Holders of the Class A-AB Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount and, after the outstanding
Class Principal Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to Holders of the Class A-1A have been made on such Distribution
Date, until the outstanding Class Principal Balance of the Class A-AB
Certificates has been reduced to the Class A-AB Planned Principal Amount;
(2) second, to the Holders of the Class A-1 Certificates, in an amount up
to the Loan Group 1 Principal Distribution Amount and, after the
outstanding Class Principal Balance of the Class A-1A Certificates has
been reduced to zero, the Loan Group 2 Principal Distribution Amount
remaining after payments to Holders of the Class A-1A and Class A-AB (up
to the Class A-AB Planned Principal Amount) have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-1 Certificates has been reduced to zero; (3) third, to the Holders
of the Class A-2 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to Holders
of the Class A-1A, Class A-AB (up to the Class A-AB Planned Principal
Amount) and Class A-1 Certificates have been made on such Distribution
Date, until the outstanding Class Principal Balance of the Class A-2
Certificates has been reduced to zero; (4) fourth, to the Holders of the
Class A-3 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A, Class A-AB (up to the Class A-AB Planned Principal Amount),
Class A-1 and Class A-2 Certificates have been made on such Distribution
Date, until the outstanding Class Principal Balance of the Class A-3
Certificates has been reduced to zero; (5) fifth, to the Holders of the
Class A-AB Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A, Class A-AB (up to the Class A-AB Planned Principal Amount),
Class A-1, Class A-2 and Class A-3 Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-AB Certificates has been reduced to zero and (6) sixth, to the
Holders of the Class A-4 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to Holders
of the Class A-1A, Class A-1, Class A-2, Class A-3 and Class A-AB
Certificates have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-4 Certificates has been
reduced to zero and (B) to the Holders of the Class A-1A Certificates, in
an amount up to the Loan Group 2 Principal Distribution Amount and, after
the Class Principal Balance of the Class A-1, Class A-2, Class A-3, Class
A-AB and Class A-4 Certificates has been reduced to zero, the Loan Group 1
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4 Certificates
have been made on such Distribution Date, until the Class Principal
Balance of the Class A-1A Certificates has been reduced to zero;
(iii) to reimburse the Holders of the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates, and the Class A-1A Certificates,
up to an amount equal to, and pro rata as among such Classes in accordance
with, the respective amounts of Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class Principal Balance of
such Classes and for which no reimbursement has previously been paid;
(iv) to distributions of interest to the Holders of the Class A-J
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates and the Class A-1A Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class A-J Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-J Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class A-J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class A-J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates and the Class A-J Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates, in
an amount (not to exceed the Class Principal Balance of the Class B
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(ix) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates, the Class A-1A Certificates, the
Class A-J Certificates and Class B Certificates have been reduced to zero,
to distributions of principal to the Holders of the Class C Certificates,
in an amount (not to exceed the Class Principal Balance of the Class C
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xii) to distributions to the Holders of the Class C Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates, the Class A-1A Certificates, the
Class A-J Certificates, the Class B Certificates and the Class C
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class D Certificates, in an amount (not to exceed the
Class Principal Balance of the Class D Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class D Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates and the Class D Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class E
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates, the Class A-1A Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates and the Class E Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates
and the Class F Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class G Certificates, in an amount (not
to exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution Date;
(xxiv) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class G Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates and the Class G Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class H
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class H Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates and the Class H
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balances of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balances of the Class J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H
Certificates and the Class J Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class K Certificates, in
an amount (not to exceed the Class Principal Balance of the Class K
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxxiii) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class K Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class L Certificates, in an amount (not to exceed the Class Principal
Balance of the Class L Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxvi) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class L Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxviii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K Certificates and the
Class L Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class M Certificates, in an amount (not to
exceed the Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxix) to distributions to the Holders of the Class M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xli) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB
Certificates, the Class A-4 Certificates, the Class A-1A Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L
Certificates and the Class M Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class N Certificates, in
an amount (not to exceed the Class Principal Balance of the Class N
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlii) to distributions to the Holders of the Class N Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class N Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K Certificates, the
Class L Certificates, the Class M Certificates and the Class N
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class O Certificates, in an amount (not to exceed the
Class Principal Balance of the Class O Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class O Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class O Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xlvi) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xlvii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class A-J Certificates, the Class B Certificates, the
Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K Certificates, the
Class L Certificates, the Class M Certificates, the Class N Certificates
and the Class O Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class P Certificates, in an amount (not
to exceed the Class Principal Balance of the Class P Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution Date;
(xlviii) to distributions to the Holders of the Class P
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class P Certificates and
that remain unreimbursed immediately prior to such Distribution Date; and
(xlix) to distributions to the Holders of the Class R-II
Certificates, in the amount remaining in the REMIC II Distribution Account
for such Distribution Date remaining after the distributions to be made on
such Distribution Date pursuant to clauses (i) through (xlviii) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-AB Certificates, the
Class A-4 Certificates and the Class A-1A Certificates, subject to available
funds, up to an amount equal to, and pro rata as among such Classes in
accordance with, the respective then outstanding Class Principal Balances of
such Classes, and without regard to the Principal Distribution Amount for such
date; and provided, further, that, on the Final Distribution Date, the payments
of principal to be made pursuant to any of clauses (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv)
and (xlvii) above with respect to any Class of Sequential Pay Certificates, will
be so made to the Holders thereof, subject to available funds, up to an amount
equal to the entire then outstanding Class Principal Balance of such Class of
Certificates, and without regard to the Principal Distribution Amount for such
date. References to "remaining Principal Distribution Amount" in clause (ii)
above, in connection with payments of principal to be made to the Holders of the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates,
the Class A-AB Certificates, the Class A-4 Certificates and the Class A-1A
Certificates shall be to the Principal Distribution Amount for such Distribution
Date, net of any distributions of principal made in respect thereof to the
Holders of each other Class of Class A Senior Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv) and (xlvii) above, in connection with
the payments of principal to be made to the Holders of any Class of Sequential
Pay Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any payments of principal made in respect thereof to
the Holders of each other Class of Sequential Pay Certificates that has a higher
Payment Priority.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Prepayment
Interest Shortfall, together with any amounts thereof remaining unpaid from
previous Distribution Dates.
(c) (i) On each Distribution Date, Prepayment Premiums collected
during the related Collection Period with respect to the Group 1 Mortgage Loans
will be distributed by the Trustee to the following Classes: to the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-AB Certificates, the Class A-4 Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates and Class H Certificates, in an
amount equal to the product of (a) a fraction whose numerator is the amount
distributed as principal to such Class on such Distribution Date, and whose
denominator is the total amount distributed as principal to the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-AB Certificates, the Class A-4 Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates and Class P Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of
Prepayment Premiums relating to the Mortgage Loans collected on such principal
prepayments during the related Collection Period. Any Prepayment Premiums
collected during the related Collection Period remaining after such
distributions will be distributed to the holders of the Class XC Certificates.
On each Distribution Date, Prepayment Premiums collected during the related
Collection Period with respect to the Group 2 Mortgage Loans will be distributed
by the Trustee to the Class A-1A Certificates in an amount equal to the product
of (a) a fraction whose numerator is the amount distributed as principal to such
Class on such Distribution Date, and whose denominator is the total amount
received as principal for all Mortgage Loans in Loan Group 2 on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of
Prepayment Premiums relating to the Mortgage Loans collected on such principal
prepayments during the related Collection Period. Any Prepayment Premiums
collected during the related Collection Period remaining after such
distributions will be distributed to the holders of the Class XC Certificates.
(ii) The "Base Interest Fraction" with respect to any Principal
Prepayment on any Mortgage Loan and with respect to any Class of REMIC II
Regular Certificates is a fraction (a) whose numerator is the amount, if
any, by which (i) the Pass-Through Rate on such Class of Certificates
exceeds (ii) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Prepayment Premium with respect
to such Principal Prepayment and (b) whose denominator is the amount, if
any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents
in calculating the yield maintenance charge with respect to such principal
prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through Rate described in the preceding sentence, then the Base
Interest Fraction will equal zero.
(iii) No Prepayment Premiums will be distributed to the holders of
the Class J, Class K, Class L, Class M, Class N, Class O or Class P
Certificates. After the Certificate Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-1A Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, all Prepayment Premiums and yield
maintenance charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class XC Certificates.
(iv) All distributions of Prepayment Premiums collected during the
related Collection Period that represent Prepayment Premiums actually
collected on the CS Component Mortgage Loan and the RP Component Mortgage
Loan, as applicable, and allocable to the CS Component Mortgage Loan
Senior Component or the RP Component Mortgage Loan Senior Component, as
applicable, pursuant to Section 4.01(c)(i) shall be deemed to be
distributed from the Component Mortgage Loan REMIC to REMIC I in respect
of the CS Component Mortgage Loan REMIC Senior Regular Interest (whether
or not such CS Component Mortgage Loan REMIC Senior Regular Interest has
received all distributions of interest and principal to which it is
entitled) or the RP Component Mortgage Loan REMIC Senior Regular Interest
(whether or not such RP Component Mortgage Loan REMIC Senior Regular
Interest has received all distributions of interest and principal to which
it is entitled), as applicable.
(v) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates on each Distribution
Date pursuant to Section 4.01(c)(i) shall first be deemed to be
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata based upon the amount of principal distributed in
respect of each Class of REMIC I Regular Interest for such Distribution
Date pursuant to Section 4.01(a)(ii) above.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the Corporate
Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets which remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate IRS forms and documentation. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholders. Such amounts
shall be deemed to have been distributed to such Certificateholders for all
purposes of this Agreement.
(i) [Reserved].
(j) On each Distribution Date, the Trustee, in respect of the CS
Component Mortgage Loan REMIC Senior Regular Interest, the Class CS Certificates
and the Class R-I Certificates, shall (except as otherwise provided in Section
9.01), based on information provided by the Master Servicer and the Special
Servicer, apply amounts on deposit in the Component Mortgage Loan REMIC
Distribution Account, after payment of amounts payable from the Component
Mortgage Loan REMIC Distribution Account in accordance with Section 3.05(b)(ii)
through (vi), to the extent related to the CS Component Mortgage Loan, for the
following purposes and in the following order of priority, in each case to the
extent of the remaining portion of the CS Component Mortgage Loan Available
Distribution Amount:
(i) with respect to the CS Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the CS Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to all Distributable CS Component Mortgage Loan Certificate
Interest in respect of the CS Component Mortgage Loan Senior Component for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(ii) with respect to the CS Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the CS Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to the CS Component Mortgage Loan Component Principal
Entitlement for the CS Component Mortgage Loan Senior Component for such
Distribution Date (the "CS Component Mortgage Loan Senior Component
Principal Distribution Amount");
(iii) with respect to the CS Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the CS Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, to reimburse
the CS Component Mortgage Loan Senior Component for all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated with
respect to the CS Component Mortgage Loan to the CS Component Mortgage
Loan Senior Component and for which no reimbursement has previously been
received;
(iv) to pay interest on the CS Component Mortgage Loan Subordinate
Component, up to an amount equal to all Distributable CS Component
Mortgage Loan Certificate Interest in respect of the CS Component Mortgage
Loan Subordinate Component for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(v) to pay principal on the CS Component Mortgage Loan Subordinate
Component, up to an amount equal to the CS Component Mortgage Loan
Component Principal Entitlement for the CS Component Mortgage Loan
Subordinate Component for such Distribution Date;
(vi) to reimburse the CS Component Mortgage Loan Subordinate
Component for all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated with respect to the CS Component Mortgage Loan
to the CS Component Mortgage Loan Subordinate Component and for which no
reimbursement has previously been received; and
(vii) with respect to the CS Component Mortgage Loan, to make
distributions to the Holders of the Class R-I Certificates in respect of
the Component Mortgage Loan REMIC Residual Interest, up to an amount equal
to the excess, if any, of (A) the aggregate distributions made on the CS
Component Mortgage Loan on such Distribution Date, over (B) the sum of (1)
the aggregate distributions deemed made in respect of the CS Component
Mortgage Loan REMIC Senior Regular Interest on such Distribution Date
pursuant to clauses (i), (ii) and (iii) of this Section 4.01(j) and
Section 4.01(c)(iii), and (2) the aggregate distributions made in respect
of the Class CS Certificates on such Distribution Date pursuant to clauses
(iv) through (vi) of this Section 4.01(j).
(k) On each Distribution Date, the Trustee, in respect of the RP
Component Mortgage Loan REMIC Senior Regular Interest, each Class of Class RP
Certificates and the Class R-I Certificates, shall (except as otherwise provided
in Section 9.01), based on information provided by the Master Servicer and the
Special Servicer, apply amounts on deposit in the Component Mortgage Loan REMIC
Distribution Account, after payment of amounts payable from the Component
Mortgage Loan REMIC Distribution Account in accordance with Section 3.05(b)(ii)
through (vi), to the extent related to the RP Component Mortgage Loan, for the
following purposes and in the following order of priority, in each case to the
extent of the remaining portion of the RP Component Mortgage Loan Available
Distribution Amount:
(i) with respect to the RP Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the RP Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to all Distributable RP Component Mortgage Loan Certificate
Interest in respect of the RP Component Mortgage Loan Senior Component for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(ii) with respect to the RP Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the RP Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to the RP Component Mortgage Loan Component Principal
Entitlement for the RP Component Mortgage Loan Senior Component for such
Distribution Date (the "RP Component Mortgage Loan Senior Component
Principal Distribution Amount");
(iii) with respect to the RP Component Mortgage Loan REMIC Senior
Regular Interest, as deemed distributions from the Component Mortgage Loan
REMIC to REMIC I in respect of the RP Component Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, to reimburse
the RP Component Mortgage Loan Senior Component for all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated with
respect to the RP Component Mortgage Loan to the RP Component Mortgage
Loan Senior Component and for which no reimbursement has previously been
received;
(iv) to pay interest on the RP Component Mortgage Loan RP-1
Component, up to an amount equal to all Distributable RP Component
Mortgage Loan Certificate Interest in respect of the RP Component Mortgage
Loan RP-1 Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) to pay principal on the RP Component Mortgage Loan RP-1
Component, up to an amount equal to the RP Component Mortgage Loan
Component Principal Entitlement for the RP Component Mortgage Loan RP-1
Component for such Distribution Date;
(vi) to reimburse the RP Component Mortgage Loan RP-1 Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the RP Component Mortgage Loan to the RP
Component Mortgage Loan RP-1 Component and for which no reimbursement has
previously been received;
(vii) to pay interest on the RP Component Mortgage Loan RP-2
Component, up to an amount equal to all Distributable RP Component
Mortgage Loan Certificate Interest in respect of the RP Component Mortgage
Loan RP-2 Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) to pay principal on the RP Component Mortgage Loan RP-2
Component, up to an amount equal to the RP Component Mortgage Loan
Component Principal Entitlement for the RP Component Mortgage Loan RP-2
Component for such Distribution Date;
(ix) to reimburse the RP Component Mortgage Loan RP-2 Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the RP Component Mortgage Loan to the RP
Component Mortgage Loan RP-2 Component and for which no reimbursement has
previously been received;
(x) to pay interest on the RP Component Mortgage Loan RP-3
Component, up to an amount equal to all Distributable RP Component
Mortgage Loan Certificate Interest in respect of the RP Component Mortgage
Loan RP-3 Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xi) to pay principal on the RP Component Mortgage Loan RP-3
Component, up to an amount equal to the RP Component Mortgage Loan
Component Principal Entitlement for the RP Component Mortgage Loan RP-3
Component for such Distribution Date;
(xii) to reimburse the RP Component Mortgage Loan RP-3 Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the RP Component Mortgage Loan to the RP
Component Mortgage Loan RP-3 Component and for which no reimbursement has
previously been received;
(xiii) to pay interest on the RP Component Mortgage Loan RP-4
Component, up to an amount equal to all Distributable RP Component
Mortgage Loan Certificate Interest in respect of the RP Component Mortgage
Loan RP-4 Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xiv) to pay principal on the RP Component Mortgage Loan RP-4
Component, up to an amount equal to the RP Component Mortgage Loan
Component Principal Entitlement for the RP Component Mortgage Loan RP-4
Component for such Distribution Date;
(xv) to reimburse the RP Component Mortgage Loan RP-4 Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the RP Component Mortgage Loan to the RP
Component Mortgage Loan RP-4 Component and for which no reimbursement has
previously been received; and
(xvi) with respect to the RP Component Mortgage Loan, to make
distributions to the Holders of the Class R-I Certificates in respect of
the RP Mortgage Loan REMIC Residual Interest, up to an amount equal to the
excess, if any, of (A) the aggregate distributions made on the RP
Component Mortgage Loan on such Distribution Date, over (B) the sum of (1)
the aggregate distributions deemed made in respect of the Corresponding
Component Mortgage Loan REMIC Senior Regular Interest on such Distribution
Date pursuant to clauses (i), (ii) and (iii) of this Section 4.01(k) and
Section 4.01(c)(iii), and (2) the aggregate distributions made in respect
of the Corresponding Class of Class RP Certificates on such Distribution
Date pursuant to clauses (iv) through (xv) of this Section 4.01(k).
Section 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates
and to the Rating Agencies a statement substantially in the form set forth as
Exhibit G hereto (a "Distribution Date Statement"), as to the distributions made
on such Distribution Date setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates, the
Class CS Certificates and each Class of Class RP Certificates in reduction
of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(iii) the amount of the distribution, if any, on such Distribution
Date to the Holders of the Class CS Certificates and each Class of Class
RP Certificates, as applicable, allocable to Distributable CS Component
Mortgage Loan Certificate Interest or Distributable RP Component Mortgage
Loan Certificate Interest, as applicable;
(iv) the Available Distribution Amount, the CS Component Mortgage
Loan Available Distribution Amount and the RP Component Mortgage Loan
Available Distribution Amount for such Distribution Date;
(v) the aggregate amount of P&I Advances (both as to those within
any applicable grace period and those which are beyond any applicable
grace period, together with the aggregate amount of delinquencies) and
Servicing Advances made in respect of the immediately preceding
Distribution Date;
(vi) P&I Advances outstanding as of the Master Servicer Remittance
Date;
(vii) the aggregate amount of P&I Advances made with respect to the
Mortgage Pool and with respect to each Loan Group in respect of the
immediately preceding Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
and each Loan Group (less (a) the CS Component Mortgage Loan Subordinate
Balance of the CS Component Mortgage Loan Subordinate Component and (b)
the RP Component Mortgage Loan Subordinate Balance of each of the RP
Component Mortgage Loan Subordinate Components) outstanding immediately
before and immediately after such Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool and each Loan Group as of the end of the Collection Period
for the immediately preceding Determination Date;
(x) as of the Determination Date for the related Distribution Date,
the number, aggregate unpaid principal balance and specific identification
(by loan number) of Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 or more days, (D) current but
specially serviced or in foreclosure but not a REO Property and (E)
identification of Mortgage Loans the Mortgagor for which is subject to
bankruptcy;
(xi) with respect to any REO Property included in the Trust Fund as
of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(xii) the Accrued Certificate Interest, Distributable Certificate
Interest, Distributable CS Component Mortgage Loan Certificate Interest
and Distributable RP Component Mortgage Loan Certificate Interest in
respect of each Class of REMIC II Regular Certificates, the Class CS
Certificates and each Class of Class RP Certificates, as applicable, for
such Distribution Date;
(xiii) the aggregate amount of Distributable Certificate Interest,
Distributable CS Component Mortgage Loan Certificate Interest and
Distributable RP Component Mortgage Loan Certificate Interest payable in
respect of each Class of REMIC II Regular Certificates, the Class CS
Certificates and each Class of Class RP Certificates, as applicable, on
such Distribution Date, including, without limitation, any Distributable
Certificate Interest, Distributable CS Component Mortgage Loan Certificate
Interest and Distributable RP Component Mortgage Loan Certificate Interest
remaining unpaid from prior Distribution Dates;
(xiv) any unpaid Distributable Certificate Interest, Distributable
CS Component Mortgage Loan Certificate Interest and Distributable RP
Component Mortgage Loan Certificate Interest in respect of Class of REMIC
II Regular Certificates, the Class CS Certificates and each Class of Class
RP Certificates, as applicable, after giving effect to the distributions
made on such Distribution Date;
(xv) the Pass-Through Rate for each Class of REMIC II Regular
Certificates, the Class CS Certificates and each Class of Class RP
Certificates, as applicable, for such Distribution Date;
(xvi) the Principal Distribution Amount with respect to the Mortgage
Pool and each Loan Group for such Distribution Date, separately
identifying the amounts distributable to each Class of REMIC II Regular
Certificates, to the Class CS Certificates and to each Class of Class RP
Certificates;
(xvii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xviii) the Certificate Principal Balance or Notional Amount, as the
case may be, of Class of REMIC II Regular Certificates, the Class CS
Certificates and each Class of Class RP Certificates outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xix) the Certificate Factor for each Class of REMIC II Regular
Certificates, the Class CS Certificates and each Class of Class RP
Certificates immediately following such Distribution Date;
(xx) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xxi) a brief description of any material waiver, modification or
amendment of any Loan entered into by the Master Servicer or Special
Servicer pursuant to Section 3.20 during the related Collection Period;
(xxii) current and cumulative outstanding Advances with respect to
the Mortgage Pool and each Loan Group;
(xxiii) current prepayments and curtailments;
(xxiv) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxv) the ratings from all Rating Agencies for all classes of
Certificates;
(xxvi) the amounts, if any, distributed in respect of the Class CS
Certificates and each Class of Class RP Certificates, as applicable;
(xxvii) the amounts held in the Excess Liquidation Proceeds Account;
and
(xxviii) the CMSA Reconciliation of Funds Report.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xix)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate, a Class CS
Certificate or a Class RP Certificate a statement containing the information as
to the applicable Class set forth in clauses (i) and (ii) above of the
description of Distribution Date Statement, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder,
together with such other information as the Trustee determines to be necessary
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to the general public,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to the general public each month the Servicer
Reports, the CMSA Loan Setup File and the Trustee's Reports on the Trustee's
Website. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. For assistance with the above-referenced services, interested parties
may call (301) 815-6600. The Trustee will make no representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor. In addition, upon authorization of the Depositor, that
is hereby given, the Trustee shall make available to Bloomberg, L.P., Trepp,
LLC, Intex and Standard & Poor's Conquest or such other vendors as chosen by the
Depositor all electronic reports delivered or made available pursuant to Section
4.02 of this Agreement to the Certificateholders using a format mutually
acceptable to such vendors and the Trustee.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 12:00 noon (New York City time) on the third Business Day
following each Determination Date (or with respect to the CMSA Loan Periodic
Update File, by 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date), the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties, would constitute a waiver of the
attorney-client privilege on behalf of the Trust or would otherwise materially
harm the Trust Fund. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure of
the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
Section 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans (other than the Bank of America Center
Mortgage Loan, as to which P&I Advances will be made by the Bank of America
Center Master Servicer pursuant to the Bank of America Center Pooling Agreement
or by the Trustee pursuant to this Section 4.03(a)), other than a Mortgage Loan
included in a Loan Pair, either (i) deposit into the Distribution Account from
its own funds an amount equal to the aggregate amount of P&I Advances, if any,
to be made in respect of the related Distribution Date, (ii) apply amounts held
in the Certificate Account for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made; provided that if Late
Collections of any of the delinquent principal and/or interest in respect of
which it is to make P&I Advances on any Master Servicer Remittance Date are then
on deposit in the Certificate Account, the Master Servicer shall use such Late
Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees
payable therefrom) to make such P&I Advances. With respect to each Loan Pair, on
each Master Servicer Remittance Date, the Master Servicer shall either (i)
deposit into the related Loan Pair Custodial Account from its own funds an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date on such Loan Pair, (ii) apply amounts
held in the related Loan Pair Custodial Account for future distribution in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made; provided that if Late
Collections of any of the delinquent principal and/or interest in respect of
which it is to make P&I Advances on any Master Servicer Remittance Date are then
on deposit in the related Loan Pair Custodial Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees, Liquidation Fees
and Workout Fees payable therefrom and any portion thereof required to be paid
to any Companion Noteholder under any Co-Lender Agreement) to make such P&I
Advances. Any amounts held in the Certificate Account or if a Loan Pair is
involved, the related Loan Pair Custodial Account for future distribution and so
used to make P&I Advances (other than the Late Collections of the delinquent
principal and/or interest contemplated by the proviso to the preceding sentence)
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit into the Certificate Account or if a Loan Pair
is involved, the related Loan Pair Custodial Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer will not be
required to make any P&I Advances with respect to the ICG Portfolio A/B Loan B
Note or the Summit Place Apartments Loan B Note. If, as of 4:00 p.m., New York
City time, on any Master Servicer Remittance Date, the Master Servicer shall not
have made any P&I Advance required to be made on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (213) 345-7240 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (800) 462-0505 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Trustee does not receive the full amount of such P&I
Advances by the close of business (New York City time) on such Master Servicer
Remittance Date, then (i) unless the Trustee determines that such Advance would
be a Nonrecoverable P&I Advance if made, the Trustee shall make, by 11:00 a.m.
on the Distribution Date or in any event by such time as shall be required to
make the required distribution on such Distribution Date, the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such Master Servicer Remittance Date and (ii) such failure shall constitute
an Event of Default on the part of the Master Servicer. The Trustee shall not be
required to make an Advance on any Companion Loan.
The parties hereto agree and acknowledge that the Master Servicer
shall not be required to make P&I Advances with respect to the Bank of America
Center Mortgage Loan. The Bank of America Center Master Servicer will be
required to make P&I Advances with respect to the Bank of America Center
Mortgage Loan under the Bank of America Center Pooling Agreement, or if the Bank
of America Center Master Servicer fails to make a required P&I Advance with
respect to the Bank of America Center Mortgage Loan pursuant to the Bank of
America Center Intercreditor Agreement and the Bank of America Center Pooling
Agreement, the Bank of America Center Trustee shall make such P&I Advance
pursuant to the Bank of America Center Pooling Agreement by noon, New York City
time, on the related Distribution Date unless the Master Servicer or the Bank of
America Center Master Servicer pursuant to the Bank of America Center
Intercreditor Agreement and the Bank of America Center Pooling Agreement shall
have cured such failure (and provided written notice of such cure to the Bank of
America Center Trustee and the Trustee) by 11:00 a.m. on such Distribution Date.
The parties hereto agree and acknowledge that the Trustee shall be
required to make Advances with respect to the Bank of America Center Mortgage
Loan under the following circumstances: if the Bank of America Center Master
Servicer, the Bank of America Center Special Servicer and/or the Bank of America
Center Trustee is required to make an Advance with respect to the Bank of
America Center Mortgage Loan under the Bank of America Center Pooling Agreement
but none does so within ten days after such Advance is required to be made, then
the Trustee shall, if it has actual knowledge of such failure, give notice to
the Bank of America Center Master Servicer, the Bank of America Center Special
Servicer and/or the Bank of America Center Trustee, as the case may be, of such
failure and, if such failure continues for more than three Business Days after
the Trustee has given such notice, the Trustee shall make such Advance. The
Trustee shall be entitled to rely on any such determination of nonrecoverability
that may have been made by the Bank of America Master Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date shall
equal, subject to subsection (c) below, the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees payable hereunder, that were due or deemed due,
as the case may be, in respect thereof on their respective Due Dates during the
related Collection Period and that were not paid by or on behalf of the related
Mortgagors or otherwise collected as of the close of business on the Business
Day before the Master Servicer Remittance Date; provided that, if an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then, in
the event of subsequent delinquencies thereon, the interest portion of the P&I
Advance in respect of such Required Appraisal Loan for the related Distribution
Date shall be reduced (it being herein acknowledged that there shall be no
reduction in the principal portion of such P&I Advance) to equal the product of
(i) the amount of the interest portion of such P&I Advance for such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
is equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, if any, and the denominator of which is equal to the Stated
Principal Balance of such Required Appraisal Loan immediately prior to such
Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans other than the Bank of America Center Mortgage Loan and Mortgage
Loans included in a Loan Pair, Nonrecoverable P&I Advances shall be reimbursable
pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on
deposit in the Certificate Account. With respect to a Mortgage Loan included in
a Loan Pair, Nonrecoverable P&I Advances shall be reimbursable pursuant to
Section 3.05(f). With respect to the Bank of America Center Mortgage Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to the Bank of
America Center Pooling Agreement. The determination by the Master Servicer, the
Special Servicer, or, if applicable, the Trustee that a Nonrecoverable P&I
Advance has been made or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed P&I
Advance by the Master Servicer, no less than five Business Days prior to the
related Master Servicer Remittance Date) to the Trustee (or, if applicable,
retained thereby), the Depositor, the Rating Agencies, the Directing
Certificateholder, the Bank of America Center Controlling Holder (if the Bank of
America Center Mortgage Loan is involved), 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 A/B Loan is involved) and the Summit Place Apartments B Noteholder (if
the Summit Place Apartments A/B Loan is involved), setting forth the basis for
such determination, together with (such determination is prior to the
liquidation of the related Loan or REO Property) a copy of an Appraisal of the
related Mortgaged Property or REO Property, as the case may be, which shall have
been performed within the 12 months preceding such determination, and further
accompanied by any other information that the Master Servicer or the Special
Servicer may have obtained that supports such determination. The Trustee shall
deliver such Officer's Certificate as soon as practicable after its
determination that such P&I Advance would be nonrecoverable. If such an
Appraisal shall not have been required and performed pursuant to the terms of
this Agreement, the Master Servicer may, subject to its reasonable and good
faith determination that such Appraisal will demonstrate the nonrecoverability
of the related Advance, obtain an Appraisal for such purpose at the expense of
the Trust out of general collections. The Trustee shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Master
Servicer with respect to a particular P&I Advance. The Master Servicer and the
Trustee shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Special Servicer with respect to a particular P&I
Advance in the case of Specially Serviced Loans.
(d) Interest accrued on any P&I Advance made by the Trustee with
respect to the Bank of America Center Mortgage Loan shall be payable in
accordance with the Bank of America Center Pooling Agreement and the Bank of
America Center Intercreditor Agreement.
(e) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Loan Pair, the Master Servicer and the Trustee shall
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (out of its own
funds), to the extent that such P&I Advance relates to a Past Grace Period Loan
when made, or remains outstanding when such Loan becomes a Past Grace Period
Loan, in which case such interest shall begin to accrue when such Loan becomes a
Past Grace Period Loan, for so long as such P&I Advance is outstanding (or, in
the case of Advance Interest payable to the Master Servicer, if earlier, until
the Late Collection of the delinquent principal and/or interest in respect of
which such P&I Advance was made has been received by the Master Servicer). Such
interest will be paid: first, out of any Default Charges as set forth in Section
3.27; and second, at any time coinciding with or following the reimbursement of
such P&I Advance, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account or if a Loan Pair is involved,
out of general collections on deposit in the related Loan Pair Custodial
Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f)
with respect to a Loan Pair, the Master Servicer shall reimburse itself or the
Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable
after funds available for such purpose are deposited into the Certificate
Account or, if a Loan Pair is involved are deposited into the related Loan Pair
Custodial Account, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
had been received as of the related date on which such P&I Advance was made.
Interest accrued on any P&I Advance made with respect to any A/B Loan under this
Section shall be payable (unless required to be paid to any Companion Loan
Noteholder under any Co-Lender Agreement): (i) first, out of Default Charges
collected on or in respect of the related B Note during the same Collection
Period in which such P&I Advance is reimbursed, (ii) second, out of Default
Charges collected on or in respect of the related Mortgage Loan, as applicable,
during the same Collection Period in which such P&I Advance is reimbursed, (iii)
third, to the extent that the Default Charges described in the immediately
preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is
being reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of any other collections that were made on or in respect of the
related Mortgage Loan and (iv) solely with respect to the related Mortgage Loan
to the extent that the Default Charges described in the immediately preceding
clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is
being reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of general collections on or in respect of the Mortgage Loans.
(f) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Loans, and that part of the P&I
Advances that is attributable to Within Grace Period Loans.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to be
made to the Class CS Certificateholders on such date pursuant to Section
4.01(j), the Trustee shall determine with respect to the CS Component Mortgage
Loan the amount, if any, by which (i) the sum of (A) the CS Component Mortgage
Loan Senior Balance and (B) the CS Component Mortgage Loan Subordinate Balance
exceed (ii) the Stated Principal Balance of the CS Component Mortgage Loan that
will be outstanding immediately following such Distribution Date. If such excess
does exist with respect to the CS Component Mortgage Loan, then the CS Component
Mortgage Loan Subordinate Balance of the CS Component Mortgage Loan Subordinate
Component, shall be reduced until such excess or the related CS Component
Mortgage Loan Subordinate Balance of the CS Component Mortgage Loan Subordinate
Component is reduced to zero (whichever occurs first).
On each Distribution Date, following the distributions to be made to
the Class RP Certificateholders on such date pursuant to Section 4.01(k), the
Trustee shall determine with respect to the RP Component Mortgage Loan the
amount, if any, by which (i) the sum of (A) the RP Component Mortgage Loan
Senior Balance and (B) the RP Component Mortgage Loan Subordinate Balance exceed
(ii) the Stated Principal Balance of the RP Component Mortgage Loan that will be
outstanding immediately following such Distribution Date. If such excess does
exist with respect to the RP Component Mortgage Loan, then the RP Subordinate
Mortgage Loan Subordinate Balance of the RP Component Mortgage Loan Subordinate
Components, beginning with the most subordinate of such components and
thereafter in reverse alphabetical order, shall be reduced until such excess or
the related RP Subordinate Mortgage Loan Subordinate Balance of all the RP
Component Mortgage Loan Subordinate Components are reduced to zero (whichever
occurs first).
On each Distribution Date, following the distributions to be made to
the Regular Certificateholders (other than the Class CS Certificateholders and
the Class RP Certificateholders), on such date pursuant to Section 4.01(b) and
the allocation of Realized Losses pursuant to the preceding two paragraphs, the
Trustee shall determine the amount, if any, by which (i) the then aggregate
Certificate Principal Balance of the Sequential Pay Certificates exceeds (ii)
the aggregate Stated Principal Balance of the Mortgage Pool (less the CS
Component Mortgage Loan Subordinate Balance of the CS Component Mortgage Loan
and the aggregate RP Component Mortgage Loan Subordinate Balance of the RP
Component Mortgage Loan) that will be outstanding immediately following such
Distribution Date (provided, however, that for purposes of this calculation, any
principal collections used to pay Workout-Delayed Reimbursement Amounts shall
for purposes of this calculation be deemed to still be outstanding). If such
excess does exist, then the Class Principal Balances of the Class P, Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A-J Certificates shall be reduced
sequentially, in that order in each case, until such excess or the related Class
Principal Balance is reduced to zero (whichever occurs first). If, after the
foregoing reductions, the amount described in clause (i) of the second preceding
sentence still exceeds the amount described in clause (ii) of the second
preceding sentence, then the respective Class Principal Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, the Class A-4 Certificates and Class A-1A Certificates shall be
reduced, pro rata in accordance with the relative sizes of the then outstanding
Class Principal Balances of such Classes of Certificates, until such excess or
each such Class Principal Balance is reduced to zero (whichever occurs first).
Such reductions in the Class Principal Balances of the respective Classes of the
Sequential Pay Certificates, the Class CS Certificates and the Class RP
Certificates shall be deemed to be allocations of Realized Losses and Additional
Trust Fund Expenses, to the extent not covered by reductions in distributions of
interest pursuant to the allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) (other than
with respect to the Class CS Certificates and the Class RP Certificates) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates (in the case of Realized Losses or Additional Trust Fund Expenses
on (i) the Class A-1 Certificates, first to the REMIC I Regular Interest LA-1-1,
second to the REMIC I Regular Interest LA-1-2, third to the REMIC I Regular
Interest LA-1-3, fourth to the REMIC I Regular Interest LA-1-4 and then to the
REMIC I Regular Interest LA-1-5, in each case, pro rata, until reduced to zero,
(ii) the Class A-2 Certificates, first to the REMIC I Regular Interest LA-2-1,
second to the REMIC I Regular Interest LA-2-2, third to the REMIC I Regular
Interest LA-2-3, fourth to the REMIC I Regular Interest LA-2-4, fifth to the
REMIC I Regular Interest LA-2-5 and then to the REMIC I Regular Interest LA-2-6,
in each case, pro rata, until reduced to zero, (iii) the Class A-3 Certificates,
first to the REMIC I Regular Interest LA-3-1, second to the REMIC I Regular
Interest LA-3-2, third to the REMIC I Regular Interest LA-3-3, fourth to the
REMIC I Regular Interest LA-3-4 and then to the REMIC I Regular Interest LA-3-5,
in each case, pro rata, until reduced to zero, (iv) the Class A-AB Certificates,
first to the REMIC I Regular Interest LA-AB-1, second to the REMIC I Regular
Interest LA-AB-2, third to the REMIC I Regular Interest LA-AB-3, fourth to the
REMIC I Regular Interest LA-AB-4 and then to the REMIC I Regular Interest
LA-AB-5, in each case, pro rata, until reduced to zero, (v) the Class A-4
Certificates, first to the REMIC I Regular Interest LA-4-1 and then to the REMIC
I Regular Interest LA-4-2, in each case, pro rata, until reduced to zero, (vi)
the Class A-1A Certificates, first to the REMIC I Regular Interest LA-1A-1,
second to the REMIC I Regular Interest LA-1A-2, third to the REMIC I Regular
Interest LA-1A-3, fourth to the REMIC I Regular Interest LA-1A-4, fifth to the
REMIC I Regular Interest LA-1A-5, sixth to the REMIC I Regular Interest LA-1A-6,
seventh, to the REMIC I Regular Interest LA-1A-7, eighth to the REMIC I Regular
Interest LA-1A-8, ninth to the REMIC I Regular Interest LA-1A-9, tenth to the
REMIC I Regular Interest LA-1A-10, eleventh to the REMIC I Regular Interest
LA-1A-11, twelfth to the REMIC I Regular Interest LA-1A-12, thirteenth to the
REMIC I Regular Interest LA-1A-13, fourteenth, to the REMIC I Regular Interest
LA-1A-14 and then to the REMIC I Regular Interest LA-1A-15, in each case, pro
rata, until reduced to zero, (vii) the Class E Certificates, first to the REMIC
I Regular Interest LE-1, second to the REMIC I Regular Interest LE-2 and then to
the REMIC I Regular Interest LE-3, in each case, pro rata, until reduced to
zero, (viii) the Class F Certificates, first to the REMIC I Regular Interest
LF-1, second to the REMIC I Regular Interest LF-2, third to the REMIC I Regular
Interest LF-3 and then to the REMIC I Regular Interest LF-4, in each case, pro
rata, until reduced to zero, (ix) the Class G Certificates, first to the REMIC I
Regular Interest LG-1 and then to the REMIC I Regular Interest LG-2, in each
case, pro rata, until reduced to zero, (x) the Class H Certificates, first to
the REMIC I Regular Interest LH-1, second to the REMIC I Regular Interest LH-2
and then to the REMIC I Regular Interest LH-3, in each case, pro rata, until
reduced to zero, (xi) the Class J Certificates, first to the REMIC I Regular
Interest LJ-1 and then to the REMIC Regular Interest LJ-2, in each case, pro
rata, until reduced to zero, and (xii) the Class K Certificates, to the REMIC I
Regular Interest LK-1 and then to REMIC I Regular Interest LK-2, in each case,
pro rata, until reduced to zero).
Realized Losses or Additional Trust Fund Expenses allocable to the
CS Component Mortgage Loan will, after the Uncertificated Principal Balance of
the Class CS Certificates has been reduced to zero, reduce the related
Uncertificated Principal Balances of the related CS Component Mortgage Loan
REMIC Senior Regular Interest corresponding to the Corresponding CS Component
Mortgage Loan Senior Component.
Realized Losses or Additional Trust Fund Expenses allocable to the
RP Component Mortgage Loan will, after the Uncertificated Principal Balances of
the Classes of Class RP Certificates have been reduced to zero, reduce the
related Uncertificated Principal Balances of the related RP Component Mortgage
Loan REMIC Senior Regular Interest corresponding to the Corresponding RP
Component Mortgage Loan Senior Component.
For the avoidance of doubt, no Additional Trust Fund Expenses
(attributable to other Mortgage Loans) and/or Realized Losses suffered by the
Trust Fund shall be allocable (x) to the Class CS Certificates if such Realized
Losses were not attributable to the CS Component Mortgage Loan or (y) to the
Class RP Certificates if such Realized Losses were not attributable to the RP
Component Mortgage Loan.
For the avoidance of doubt, if terms of any of the CS Component
Mortgage Loan and/or the RP Component Mortgage Loan are modified such that the
principal balance of the related Mortgage Note is decreased, the amortization
schedule or the related Mortgage Rate is decreased, the maturity date of the
related Mortgage Loan is modified, and/or the Monthly Payment under the related
Mortgage Loan is waived, reduced or deferred and any such action gives rise to
an Additional Trust Fund Expense or a Realized Loss, such Additional Trust Fund
Expense and/or Realized Loss shall be allocated to the Component Mortgage Loan
Subordinate Components of the related Component Mortgage Loan prior to being
allocated to the related Component Mortgage Loan Senior Component thereof.
Section 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account, which the Master Servicer may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year that is not a leap year,
the Trustee shall withdraw (i) from the REMIC I Distribution Account, in respect
of each Mortgage Loan which accrues interest on an Actual/360 Basis (other than
the CS Component Mortgage Loan and the RP Component Mortgage Loan) and (ii) from
the Component Mortgage Loan REMIC Distribution Account, in respect of the CS
Component Mortgage Loan Senior Component and the RP Component Mortgage Loan
Senior Component and remit to the Master Servicer for deposit into the Interest
Reserve Account, an amount equal to one day's interest at the related Net
Mortgage Rate on the Stated Principal Balance of each such Mortgage Loan or the
CS Component Mortgage Loan Senior Balance of the CS Component Mortgage Loan
REMIC Senior Component or the RP Component Mortgage Loan Senior Balance of the
RP Component Mortgage Loan Senior Component as of the Due Date in the month
preceding the month in which such Master Servicer Remittance Date occurs, to the
extent a Monthly Payment or P&I Advance is made in respect thereof (all amounts
so deposited in any consecutive January (if applicable) and February, "Withheld
Amounts"). On the Master Servicer Remittance Date in March of each calendar
year, the Master Servicer shall remit to the Trustee for deposit into the REMIC
I Distribution Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account with respect to clause (i) above and to the Component
Mortgage Loan REMIC Distribution Account, the aggregate of all Withheld Amounts
on deposit in the Interest Reserve Account with respect to clause (ii) above.
ARTICLE V
THE CERTIFICATES.
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-27; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
II Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class A-1, Class A-2, Class A-3,
Class A-AB, Class A-4, Class A-1A, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class CS and Class RP Certificates will be
issuable in denominations corresponding to initial Certificate Principal
Balances as of the Closing Date of not less than $10,000 and any whole dollar
denomination in excess thereof; the Class XC and Class XP Certificates will be
issuable in denominations corresponding to initial Notional Balances as of the
Closing Date of not less than $1,000,000 and any whole dollar denomination in
excess thereof; and the Class J, Class K, Class L, Class M, Class N, Class O and
Class P Certificates will be issuable in denominations corresponding to initial
Certificate Principal Balances as of the Closing Date of not less than $100,000
and any whole dollar denomination in excess thereof; provided, however, that a
single Certificate of any Class thereof may be issued in a different
denomination. Each Class of Residual Certificates will be issuable only in a
denomination representing the entire Class. With respect to any Certificate or
any beneficial interest in a Certificate, the "Denomination" thereof shall be
(i) the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Principal Balance or initial Notional Amount, as applicable, and
(iii) be in an authorized denomination, as set forth above. The Book-Entry
Certificates will be issued as one or more certificates registered in the name
of a nominee designated by the Depository, and Certificate Owners will hold
interests in the Book-Entry Certificates through the book-entry facilities of
the Depository in the minimum Denominations and aggregate Denominations as set
forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Wells Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar by reason
of such appointment. If the Trustee resigns or is removed in accordance with the
terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication that
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than 90 days prior to
the date of receipt of such applicants' request, the Trustee shall promptly
request from the Certificate Registrar a current list as provided above, and
shall afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or the initial transfer thereof) is to be made
in reliance upon an exemption from the Securities Act, and under the applicable
state securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter") substantially in
the form of Exhibit B attached hereto, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
or a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from registration or
qualification under the Securities Act, applicable state securities laws and
other relevant laws, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Certificate Registrar, the Depositor or the Trustee and (b) the
Certificate Registrar shall require the transferor to execute a certification in
form and substance satisfactory to the Certificate Registrar setting forth the
facts surrounding such transfer; provided, however, that a transfer of a
Non-Registered Certificate of any such Class may be made to a trust if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02. The
Master Servicer will furnish, or cause to be furnished, upon the request of any
Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar is obligated
to register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Non-Registered
Certificate without registration or qualification. Any Holder of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four categories by a nationally
recognized statistical rating organization to (i) an Institutional Accredited
Investor will require delivery in the form of a Definitive Certificate and the
Certificate Registrar shall register such transfer only upon compliance with the
foregoing provisions of this Section 5.02(b) or (ii) a Qualified Institutional
Buyer may only be effectuated by means of an "SRO Rule 144A System" approved for
such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates and Residual
Certificates: no sale, transfer, pledge or other disposition by any Holder of
any such Certificate shall be made unless the Certificate Registrar shall have
received either (i) a representation letter from the proposed purchaser or
transferee of such Certificate substantially in the form of Exhibit E attached
hereto, to the effect that such proposed purchaser or transferee is not (a) an
employee benefit plan subject to the fiduciary responsibility provisions of
ERISA or a plan subject to Section 4975 of the Code, or a governmental plan (as
defined in Section 3(32) of ERISA) subject to any federal, state or local law
("Similar Law") that is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (each a "Plan") or (b) a person acting on behalf
of or using the assets of any such Plan (including an entity whose underlying
assets include Plan assets by reason of investment in the entity by such Plan
and the application of Department of Labor Regulation ss. 2510.3-101), other
than (except with respect to a Residual Certificate) an insurance company using
the assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Prohibited
Transaction Class Exemption 95-60 or (ii) except for the Residual Certificates
(which may not be transferred to a Holder who does not make the representation
described in clause (i)(a) or (i)(b)), if such Certificate is presented for
registration in the name of a purchaser or transferee that is any of the
foregoing, any Opinion of Counsel or other certification as the Certificate
Registrar may reasonably require and in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicer, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any such Certificate unless the Certificate Registrar has
received either the representation letter described in clause (i) above or, with
respect to the ERISA Restricted Certificates, the Opinions of Counsel or other
certification described in clause (ii) above. The costs of any of the foregoing
representation letters, certifications or Opinions of Counsel shall not be borne
by any of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Underwriters, the Initial Purchasers, the Certificate Registrar or the Trust
Fund. With respect to transfers of Book-Entry Certificates only, to the extent
the purchase or holding of a Certificate described in this Section 5.02(c) would
be restricted by ERISA, the Code or Similar Law, each Certificate Owner of such
Certificate shall be deemed to represent that it is not a Person specified in
clause (i)(a) or (i)(b) above and therefore shall not be required pursuant to
this Section 5.02(c) to deliver to the Certificate Registrar the representation
letter in the form of Exhibit E attached hereto described in clause (i)(a)
above, or the Opinion of Counsel or other certification described in clause (ii)
above. Any transfer, sale, pledge or other disposition of any such Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with
the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor
and its Affiliates, each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership Interest
in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as
Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the IRS and
those Persons specified by the REMIC Provisions all information necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or a nominee, agent or middleman thereof, including the
information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator for
providing such information.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Certificate
Registrar's office or at the office of any successor Certificate Registrar or
transfer agent appointed by the Certificate Registrar, together with an
instrument of assignment or transfer (executed by the Holder or its duly
authorized attorney), in the case of transfer, and a written request for
exchange in the case of exchange. Subject to the restrictions on transfer set
forth in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Institutional Accredited
Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Institutional Accredited Investor within 14 days after notice
of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2005, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) Any Holder of an interest in a Regulation S Global Certificate
in respect of the Certificates shall have the right, upon prior written notice
to the Depositor, the Trustee, Euroclear or Clearstream, as applicable, and the
Depository, in the form of the Exchange Certificate attached hereto as Exhibit
Q, to exchange all or a portion of such interest for an equivalent interest in a
Domestic Global Certificate in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in a Domestic
Global Certificate as set forth herein. Any Holder of an interest in a Domestic
Global Certificate shall have the right, upon prior written notice to the
Depositor, the Trustee, the Depository and Euroclear or Clearstream, as
applicable, in the form of the Exchange Certificate attached hereto as Exhibit N
or Exhibit O, as applicable, to exchange all or a portion of such interest for
an equivalent interest in a Regulation S Global Certificate in connection with a
transfer of its interest therein to a transferee that is eligible to hold an
interest in a Regulation S Global Certificate as set forth herein. The Exchange
Certificate shall specify the denomination of the Certificates to be exchanged.
The Exchange Certificate shall also contain a representation that the transfer
is being made in a transaction meeting the requirements of Rule 144A or
Regulation S, as the case may be. Following receipt of any Exchange Certificate
by the Depositor or the Trustee, (i) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal or notional amount of such Global
Certificate by the denominations of the Certificate or Certificates for which
such exchange is to be made, and (ii) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal or notional amount
of such Global Certificate by the denominations of the Certificate or
Certificates being exchanged therefor. The form of the Exchange Certificate
shall be available from the Trustee.
Section 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
XC, Class XP, Class P, Class CS and Class RP Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in subsection (c) below, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in subsection (c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner (in addition to the procedures
established under this Agreement and, if applicable, those of Euroclear and
Clearstream). Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. Neither the Certificate Registrar nor the
Trustee shall have any responsibility to monitor or restrict the transfer of
Ownership Interests in Certificates through the book-entry facilities of the
Depository.
(b) The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date. If any party hereto requests from
the Depository a list of the Depository Participants in respect of any Class or
Classes of the Book-Entry Certificates, the cost thereof shall be borne by the
party on whose behalf such request is made (but in no event shall any such cost
be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the Book
Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Trustee, the Certificate Registrar
and DTC of its intent to terminate the book entry system through DTC and, upon
receipt of notice of such intent from DTC, the Depository Participants holding
beneficial interests in the Book Entry Certificates agree to initiate such
termination. Upon surrender to the Certificate Registrar of any Class of the
Book Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(e) The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(g).
Upon receipt by the Certificate Registrar at the Certificate Registrar's office
of: (i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to this Section 5.03(g), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the related
Book-Entry Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest, (iv) an Investment Representation Letter (if the
affected Certificate is a Non-Registered Certificate) from the transferee to the
effect that such transferee is a Qualified Institutional Buyer, and (v) a
Regulation S Certificate (if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global Certificate); the Certificate Registrar
shall cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder or the Holder's transferee (as
instructed by the Holder), and the Certificate Registrar shall instruct the
Depository or the custodian holding such Book-Entry Certificate on behalf of the
Depository to increase the Denomination of the related Book-Entry Certificate by
the Denomination of the Definitive Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person specified in such
instructions a corresponding Denomination of such Book-Entry Certificate.
Each Regulation S Certificate shall include a certification to the
effect that: (i) (1) the offer of the Certificates was not made to a person in
the United States; and (2) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or (ii) with respect to
transfers made in reliance on Rule 144 under the Securities Act, that the
Certificates being transferred are not "restricted securities" as defined in
Rule 144 under the Securities Act.
(h) The Certificates initially sold in offshore transactions in
reliance on Regulation S shall be represented by a single Regulation S Global
Certificate for each such Class in fully registered form without interest
coupons, which will be deposited with the Trustee and registered in the name of
Cede & Co. as nominee of DTC. Beneficial interests in each Regulation S Global
Certificate may be held only through Euroclear or Clearstream.
No interest in the Regulation S Global Certificates may be held by
or transferred to a U.S. Person (as defined in Regulation S) except for
exchanges for a beneficial interest in a Domestic Global Certificate or a
Definitive Certificate as described in Section 5.02(m). Any beneficial interest
in a Regulation S Global Certificate that is transferred to a U.S. Person that
is an Institutional Accredited Investor (that is not a Qualified Institutional
Buyer) is required to be delivered in the form of a Definitive Certificate and
shall cease to be an interest in such Regulation S Global Certificate and,
thereafter, will be subject to all transfer restrictions and other procedures
applicable to Certificates in definitive form described in Section 5.03.
Notwithstanding the foregoing, no transfer of a beneficial interest in a
Regulation S Global Certificate to a Definitive Certificate pursuant to this
Section 5.03 shall be made prior to the Release Date. Certificates evidenced by
Regulation S Global Certificates shall be subject to certain restrictions on
transfer as set forth in Section 5.02 and shall bear a legend regarding such
restrictions described herein.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary.
Section 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person that shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
Section 5.07 Regarding the Identification of Certain
Certificateholders.
(a) For purposes of determining the identity of the holders of the
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 and Class RP Certificates to whom certain
reports and other information are required to be delivered hereunder, the
Trustee and the Master Servicer may rely, with respect to any such Certificates
outstanding in book-entry form, on a certification, given to the Trustee and
provided to the Master Servicer, by any Person that such person is such a holder
entitled to receive such reports or information hereunder. With respect 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, Class D, Class R-I and Class R-II Certificates, from
time to time upon the request of the Master Servicer, the Trustee shall provide
the Master Servicer with a list of the Certificateholders recorded in the
Certificate Register.
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.
The Depositor, the Master Servicer, the Special Servicer, the GECC
Primary Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Depositor, the Master Servicer, the Special Servicer,
the GECC Primary Servicer and the REMIC Administrator herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer, the GECC Primary Servicer or the
REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer, the GECC Primary Servicer and the REMIC
Administrator each will keep in full effect its existence, rights and franchises
as a corporation or other business organization under the laws of the
jurisdiction of its organization, and each will obtain and preserve its
qualification to do business as a foreign corporation or otherwise in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer, the
GECC Primary Servicer and the REMIC Administrator each may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets (which, as to the Master Servicer and the Special Servicer, may be
limited to all or substantially all of its assets relating to the business of
mortgage loan servicing) to any Person, in which case any Person resulting from
any merger or consolidation to which the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator shall be a party, or any Person
succeeding to the business of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator, shall be the successor of the Depositor,
the Master Servicer, the Special Servicer, the GECC Primary Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer, unless such succession will not result in any
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates (as confirmed in
writing).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the GECC Primary Servicer, the REMIC
Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the GECC Primary Servicer, the REMIC Administrator or any director,
officer, employee or agent of any of the foregoing shall be under any liability
to the Trust, the Certificateholders or any Companion Loan Noteholders for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer, the GECC Primary Servicer,
the REMIC Administrator or any such other Person against any breach of a
representation or warranty made herein, or against any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or
against any liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder, or by reason of negligent or reckless disregard of such obligations
and duties. The Depositor, the Master Servicer, the Special Servicer, the GECC
Primary Servicer, the REMIC Administrator and any director, manager, member,
officer, employee or agent (including Sub-Servicers) of any of the foregoing may
rely in good faith on any document of any kind that, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Master Servicer, the Special Servicer, the GECC Primary
Servicer, the REMIC Administrator and any director, manager, member, officer,
employee or agent (including Sub-Servicers) of any of the foregoing shall be
indemnified and held harmless by the Trust against any loss, liability or
expense, including reasonable attorneys' fees, expenses of counsel and expenses
of litigation, incurred in connection with any claims or legal action relating
to this Agreement, the Certificates or any asset of the Trust, other than any
loss, liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
or (ii) that was incurred in connection with claims against such party resulting
from (A) any breach of a representation or warranty made herein by such party,
(B) willful misfeasance, bad faith, recklessness or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
or reckless disregard of such obligations or duties, or (C) any violation by
such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer, the GECC Primary Servicer or the REMIC
Administrator shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, except in the case of a legal action contemplated by Section
3.22, in its opinion does not involve it in any ultimate expense or liability;
provided, however, that the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator may in its discretion undertake any such action which
it may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders (or if a Loan Pair is affected, the rights of the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole)); provided, however, that if a Loan Pair and/or a Companion Loan
Noteholder is involved, such expenses, costs and liabilities shall be payable
out of the related Loan Pair Custodial Account and shall also be payable out of
the Certificate Account if amounts on deposit in the related Loan Pair Custodial
Account are insufficient therefor hereunder so long as such expenses, costs and
liabilities do not relate solely to a Companion Loan. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer, the Special Servicer, the GECC Primary Servicer and the REMIC
Administrator each shall be entitled to the direct payment of such expenses or
to be reimbursed therefor from the Certificate Account as provided in Section
3.05(a) (or, if and to the extent the matter relates solely to a Companion Loan,
out of the related Loan Pair Custodial Account). For the avoidance of doubt,
such expenses, costs and liabilities shall not be deemed to relate solely to a
Companion Loan for the sole reason that the related action was instituted by or
against a Companion Loan Noteholder.
(b) The Bank of America Center Master Servicer, the Bank of America
Center Special Servicer, the Bank of America Center Depositor and the Bank of
America Center Trustee, and any of their respective directors, officers,
employees or agents (collectively, the "Bank of America Center Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the Bank of America Center Intercreditor
Agreement ) of any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses incurred in connection with any legal
action relating to the Bank of America Center Whole Loan under the Bank of
America Center Pooling Agreement or this Agreement (but excluding any such
losses allocable to the Bank of America Center Companion Loans), reasonably
requiring the use of counsel or the incurring of expenses other than any losses
incurred by reason of any Bank of America Center Indemnified Party's willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of negligent disregard of obligations and duties under the Bank of America
Center Pooling Agreement. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the Master
Servicer, the Trustee and the Special Servicer.
Section 6.04 Master Servicer, Special Servicer, the GECC Primary
Servicer and REMIC Administrator Not to Resign.
None of the Master Servicer, the Special Servicer, the GECC Primary
Servicer or the REMIC Administrator shall be permitted to resign from the
obligations and duties hereby imposed on it, except (i) upon the appointment of,
and the acceptance of such appointment by, a successor thereto which is
reasonably acceptable to the Trustee and the Directing Certificateholder and the
receipt by the Trustee of written confirmation from each and every Rating Agency
to the effect that such resignation and appointment will not result in the
downgrade, qualification (if applicable) or withdrawal of any rating then
assigned by such Rating Agency to any Class of Certificates, or (ii) upon
determination that such obligations and duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Master Servicer, Special Servicer, the GECC Primary Servicer or REMIC
Administrator, as the case may be, so causing such a conflict being of a type
and nature carried on by the Master Servicer, Special Servicer, the GECC Primary
Servicer or REMIC Administrator, as the case may be, at the date of this
Agreement. Any such determination of the nature described in clause (ii) of the
preceding sentence permitting the resignation of the Master Servicer, the
Special Servicer, the GECC Primary Servicer or the REMIC Administrator, as the
case may be, shall be evidenced by an Opinion of Counsel to such effect that
shall be rendered by Independent counsel, be addressed and delivered to the
Trustee and the Rating Agencies and be paid for by the resigning party. No such
resignation for either reason shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party hereunder. All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs or expenses of any party hereto
reimbursable out of the Trust Fund) in connection with any such resignation
(including, without limitation, any requisite transfer of servicing) shall be
paid for, as incurred, by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer, the GECC Primary Servicer or the REMIC Administrator shall be
permitted, except as expressly provided herein, to assign or transfer any of its
rights, benefits or privileges hereunder to any other Person, or delegate to or
subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by it hereunder. If, pursuant
to any provision hereof, the duties of the Master Servicer, the Special Servicer
or the REMIC Administrator are transferred to a successor thereto, then, subject
to Section 3.11 and Section 3.22, the entire amount of compensation payable to
the Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, pursuant hereto shall thereafter be payable to such successor.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer, the Special Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements,
or in the case of the Special Servicer, publicly available financial statements
of its corporate parent, and such other publicly available information directly
related to the servicing of the Loans or to its ability to perform its
obligations hereunder as it possesses, and that it is not prohibited by law or,
to the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise; provided that neither the Depositor nor the
Trustee may disclose the contents of any information that is not available
publicly to non-affiliated third parties (other than their duly authorized
representatives which include without limitation attorneys and/or accountants)
unless the Depositor or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, that none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer, the Special Servicer or the REMIC
Administrator and is not obligated to supervise the performance of the Master
Servicer, the Special Servicer or the REMIC Administrator under this Agreement
or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or a Loan Pair Custodial Account any amount required
to be so deposited under this Agreement which continues unremedied for
three Business Days following the date on which such deposit was first
required to be made, but in no event later than one day before the related
Distribution Date, or (B) to deposit into, or to remit to the Trustee for
deposit into, the Distribution Account on any Master Servicer Remittance
Date, the full amount of any Master Servicer Remittance Amount and
Withheld Amounts, respectively, required to be so deposited or remitted
under this Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
a Loan Pair Custodial Account or the applicable REO Account any amount
required to be so deposited or remitted under this Agreement that
continues unremedied for three Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however,
that if the Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the Prime Rate from and including such Master Servicer
Remittance Date to but excluding the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, that if such covenant or agreement is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period shall be
extended for an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if such covenant or agreement is capable of being cured and
the REMIC Administrator is diligently pursuing such cure, such 30-day
period shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Moody's provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, that the Master Servicer or such
Special Servicer, as applicable shall have 60 days to resolve such matters
to the satisfaction of Moody's (or such longer time period as may be
agreed in writing by Moody's) prior to the downgrade of any Class of
Certificates, and in such case, such notice from Moody's shall not be
deemed to be an Event of Default; or
(xiii) either the Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from S&P's
approved special servicer list.
Each Event of Default listed above as items (iv) through (xiii)
shall constitute an Event of Default only with respect to the relevant party;
provided that if a single entity acts or any two or more Affiliates act as
Master Servicer, Special Servicer and REMIC Administrator, or in any two or more
of the foregoing capacities, an Event of Default in one capacity (other than an
event described in clauses (xii) or (xiii)) will constitute an Event of Default
in each such capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and (other than with respect to the Events of Default listed in
clauses (xii) and clause (xiii) above) at the written direction of the Holders
of Certificates entitled to at least 25% of the Voting Rights, or if the
relevant Event of Default is the one described in clause (xi) of subsection (a)
above, the Trustee shall, terminate, by notice in writing to the Defaulting
Party (with a copy of such notice to each other party hereto), all of the rights
and obligations (subject to Section 3.11 and Section 6.03, accruing from and
after such notice) of the Defaulting Party under this Agreement and in and to
the Mortgage Loans and the proceeds thereof (other than as a Holder of a
Certificate or a Companion Loan). With respect to each of the Event of Defaults
listed above as clauses (xii) and (xiii), the Trustee shall provide written
notice of such Event of Default to each Certificateholder and request written
direction of such Certificateholders whether they desire to terminate the
Defaulting Party; if no such direction is received from the Directing
Certificateholder or Holders of Certificates entitled to vote at least 25% of
the Voting Rights within ten Business Days after delivery of such notice by the
Trustee, and the Trustee has not elected pursuant to the preceding sentence to
terminate the Defaulting Party, the Defaulting Party will not be terminated by
reason of such Event of Default. From and after the receipt by the Defaulting
Party of such written notice, all authority and power of the Defaulting Party
under this Agreement, whether with respect to the Certificates (other than as a
Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and
be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records reasonably
requested thereby to enable the Trustee to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee for administration by it of all cash amounts that shall at the time be
or should have been credited by the Master Servicer to the Certificate Account,
the Distribution Account, any Servicing Account or any Reserve Account (if it is
the Defaulting Party) or by the Special Servicer to the REO Account, the
Certificate Account, any Servicing Account or any Reserve Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
and any REO Properties (provided, however, that the Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b) or
Section 3.23, continue to be obligated for or entitled to receive all amounts
accrued or owing by or to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances or otherwise, and it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination). All costs and
expenses of the Trustee and the Trust (including, without limitation, any costs
and expenses of any party hereto reimbursable out of the Trust Fund) in
connection with the termination of the Master Servicer or Special Servicer, as
applicable, under this Section 7.01(b) (including, without limitation, the
requisite transfer of servicing) shall be paid for, as incurred, by the
Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b) of this Agreement, if the Master
Servicer receives a notice of termination under Section 7.01(b) solely due to an
Event of Default under Section 7.01(a)(xii) or (xiii) and if the Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five Business Days after such termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three Persons
qualified to act as Master Servicer hereunder in accordance with Section 6.02
and Section 7.02 for which the Trustee has received written confirmation that
the appointment of such person would not result in the downgrade, withdrawal or
qualification of a current rating on any of the Certificates and that are
reasonably acceptable to the Directing Certificateholder (any such Person so
qualified, a "Qualified Bidder") or, if three Qualified Bidders cannot be
located, then from as many Persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the terminated Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three or no Qualified Bidders submit bids for the right to master service
the Mortgage Loans under this Agreement. Any "Qualified Bidder" referenced
hereunder shall be reasonably acceptable to the Directing Certificateholder. The
bid proposal shall require any Successful Bidder (as defined below), as a
condition of such bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof, within 45 days after the
termination of Master Servicer. The Trustee shall solicit bids (i) on the basis
of such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Loans pursuant to the terms of the respective
Sub-Servicing Agreements and to enter into a Sub-Servicing Agreement with the
terminated Master Servicer to service each of the Loans not subject to a
Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.5 basis points per Mortgage Loan serviced (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
Section 7.01(d). The Trustee thereafter may act or may select a successor to act
as Master Servicer hereunder in accordance with Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
that the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, or is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans; or if the Directing Certificateholder
or if the Holders of Certificates entitled to at least 51% of the Voting Rights
so request in writing to the Trustee; or if the REMIC Administrator is the
resigning or terminated party and the Trustee had been acting in such capacity,
promptly appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided, in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates (as
evidenced by written confirmation thereof from each Rating Agency); provided
further that in the case of a resigning or terminated Special Servicer, such
appointment shall be subject to the rights of the Majority Certificateholder of
the Controlling Class to designate a successor pursuant to Section 3.23. No
appointment of a successor to the Master Servicer, the Special Servicer or the
REMIC Administrator hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
hereunder. Pending appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder, the Trustee shall act in
such capacity as hereinabove provided. Notwithstanding the above, the Trustee
shall, if the Master Servicer is the resigning or terminated party and the
Trustee is prohibited by law or regulation from making P&I Advances, promptly
appoint any established mortgage loan servicing institution that has a net worth
of not less than $15,000,000 and is otherwise acceptable to each Rating Agency
(as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause the qualification, downgrading
or withdrawal of the then current rating on any Class of Certificates), as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. Subject to Section 3.11 and in
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on or in respect of the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
foregoing functions under this Agreement (other than the set-up costs of the
successor) shall be borne by the predecessor Master Servicer, Special Servicer
or REMIC Administrator, as applicable, and, if not paid by such predecessor
Master Servicer, Special Servicer or REMIC Administrator within 30 days of its
receipt of an invoice therefor, shall be an expense of the Trust; provided that
such predecessor Master Servicer, Special Servicer or REMIC Administrator shall
reimburse the Trust for any such expense so incurred by the Trust; and provided,
further, that the Trustee shall decide whether and to what extent it is in the
best interest of the Certificateholders to pursue any remedy against any party
obligated to make such reimbursement.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event that constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(g) to have notice
of the occurrence of such an event, the Trustee shall transmit by mail to the
other non-defaulting parties hereto and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts that it has advanced. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor (provided that
neither the Depositor nor any Affiliate thereof is the party in respect of which
such Event of Default exists) shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults that may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(d) The Trustee hereby indemnifies and holds the Trust harmless for
all losses, liabilities and damages incurred by the Trust or the
Certificateholders by virtue of the Trustee's negligence or fraud.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default hereunder that has not
been cured, to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Sellers.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (other than
as specifically set forth in Section 2.07) or of any Certificate (other than as
to the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust, or any funds deposited in or withdrawn from the Certificate Account, the
Interest Reserve Account or any other account by or on behalf of the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator. The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator and accepted by the Trustee, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any agent
of the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
Section 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the
Trustee, or Person, if any, who controls the Trustee within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, shall
be entitled to be indemnified and held harmless by the Trust (to the extent of
amounts on deposit in the Certificate Account and the Distribution Account from
time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) arising out of, or
incurred in connection with, any legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder and any
other "unanticipated expenses" (similar to those defined in Treasury Regulations
Section 1.860G-1(b)(3)(ii)) of the Trustee; provided that the Trustee shall not
be entitled to indemnification pursuant to this Section 8.05(b) for (i)
allocable overhead, (ii) expenses or disbursements incurred or made by or on
behalf of the Trustee in the normal course of the Trustee's performing its
routine duties in accordance with any of the provisions hereof, (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof, or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee made herein. The provisions of this Section
8.05(b) shall (i) survive any resignation or removal of the Trustee and
appointment of a successor trustee and (ii) extend to any other role that the
Trustee may assume hereunder, including without limitation REMIC Administrator,
Custodian and/or Certificate Registrar.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "Aa3" by Moody's and
"AA-" by S&P (or, in the case of either Rating Agency, such other rating as each
such Rating Agency shall permit so long as it is accompanied by a statement in
writing that any of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would not be downgraded, qualified
(if applicable) or withdrawn as a result of such rating). If such corporation,
trust company, bank or banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 8.06,
the combined capital and surplus of such corporation, trust company, bank or
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. No Person shall
become a successor trustee hereunder if the succession of such Person would
result in a downgrade, qualification (if applicable) or withdrawal of any of the
ratings then assigned by the Rating Agencies to the Certificates. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The corporation, trust company, bank or
banking association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and their respective Affiliates.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, all
Certificateholders and all Companion Loan Noteholders. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
acceptable to the Master Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer, the REMIC Administrator and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Loan Noteholders, the REMIC Administrator and the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the Companion Loan Noteholders, the Depositor and the remaining
Certificateholders shall have been notified; and provided further that other
Holders of the Certificates entitled to a greater percentage of the Voting
Rights shall not have objected to such removal in writing to the Master Servicer
and the Depositor within 30 days of their receipt of notice thereof. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer, the
REMIC Administrator and the remaining Certificateholders by the Master Servicer.
If the Trustee is removed under this Agreement without cause, all reasonable
costs and expenses incurred by the Trustee (to the extent not duplicative of any
reimbursement provided for under Section 8.08(a)) shall be at the expense of the
party causing such removal.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates. The Master Servicer shall give notice to the Bank of America
Center Companion Loan Noteholders of any resignation or removal of the Trustee
and appointment of a successor trustee.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of the
succession of such trustee to the Depositor and the Certificateholders.
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06. The successor to the Trustee shall promptly
notify in writing each of the other parties hereto, the Certificateholders and
the Rating Agencies of any such merger, conversion, consolidation or succession
to business.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee that do not comply with
the provisions of Section 8.10(b).
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, a Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
Section 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Loans and
the Trust Fund, that is within its control that may be required by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee 10 copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 3.13, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 3.14, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Mortgage Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and (G) any Asset Status Report. Copies
of any and all of the foregoing items are to be available from the Trustee upon
request; however, the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
Section 8.13 Filings with the Securities and Exchange Commission.
(a) The provisions of this paragraph shall not apply until such time
as any Class of Certificates is registered under the Securities Act. Thereupon,
the Depositor shall prepare for filing, execute and properly file with the
Commission, the initial 8-K. The Trustee shall, at the expense of the Depositor,
prepare for filing, execute (except in the case of Form 10-K which the Depositor
shall execute) and properly file with the Commission (i) the Form 10-K, (ii) the
Form 15 in January 2005 and (iii) the Form 8-K with the following attachments:
(a) the Distribution Date Statements, (b) any additional items requested by the
Depositor and (c) any items specifically provided herein to be filed on behalf
of the Trust under the Exchange Act; provided that any such items shall have
been received by the Trustee (to the extent not generated by the Trustee) in the
format required for electronic filing via the EDGAR system. The Depositor hereby
grants to the Trustee a limited power of attorney to execute (except in the case
of Form 10-K which the Depositor shall execute) and file each such document
(other than the initial 8-K) on behalf of the Depositor. Such power of attorney
shall continue until either the earlier of (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Trustee, from time to time upon request, such further information, reports, and
financial statements within its control related to this Agreement and the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Trustee shall have no
responsibility to file any such items that have not been received in such EDGAR
compatible or convertible format nor shall it have any responsibility to convert
any items to such format. The Depositor shall (i) promptly file, and exercise
its reasonable best efforts to obtain a favorable response to, no-action
requests to, or requests for other appropriate exemptive relief from, the
Commission regarding the usual and customary exemption from certain reporting
requirements granted to issuers of securities similar to the Certificates; and
(ii) promptly forward copies of any response from the Commission to the Trustee.
(b) With respect to the Trust's fiscal year 2004, the Trustee shall
prepare and properly file with the Commission on or before the due date
specified by the Commission, with respect to the Trust, an Annual Report on Form
10-K, that complies in all material respects with the requirements of the
Exchange Act, the rules and regulations promulgated thereunder and applicable
"no-action letters" issued by the Commission, which shall include as exhibits
the Officer's Certificates and Annual Accountants' Reports delivered pursuant to
Section 3.13 and Section 3.14, respectively, with respect to the Master Servicer
and the Special Servicer for such fiscal year, and which shall further include
such certification(s) as may be required under the Sarbanes-Oxley Act of 2002
and the rules and regulations of the Commission promulgated thereunder
(including any interpretations thereof by the Commission's staff) (such
certification(s), individually and collectively, insofar as they are required to
be part of any particular Annual Report on Form 10-K, a "Sarbanes-Oxley
Certification") (which Sarbanes-Oxley Certifications shall be signed by the
party or parties contemplated by this Section 8.13). Such Sarbanes-Oxley
Certification is set forth in substantially the form referenced on Exhibit K to
this Agreement but may be submitted in such other form as the Commission may
approve from time to time.
(c) The Form 10-K shall include any Sarbanes-Oxley Certification. An
officer of the Depositor shall sign the Sarbanes-Oxley Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Sarbanes-Oxley Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form set forth on Exhibit L hereto, on which the Certifying Person, the
Depositor (if the Certifying Person is an individual), and the Depositor's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent (collectively with the Certifying Person, "Certification Parties") can
rely. The Trustee's certification with respect to items 1 through 3 of Exhibit L
hereto shall relate to distribution information, and the Master Servicer's and
Special Servicer's certification with respect to items 4 and 5 of Exhibit L
hereto shall relate to servicing information. Notwithstanding the foregoing,
nothing in this paragraph shall require any Performing Party to (i) certify or
verify the accurateness or completeness of any information provided to such
Performing Party by third parties, (ii) certify information other than to such
Performing Party's knowledge and in accordance with such Performing Party's
responsibilities hereunder or under any other applicable servicing agreement or
(iii) with respect to completeness of information and reports, certify anything
other than that all fields of information called for in written reports prepared
by such Performing Party have been completed except as they have been left blank
on their face. In addition, if directed by the Depositor, such Performing Party
shall provide an identical certification to Depositor's certified public
accountants that such Performing Party provided to its own certified public
accountants to the extent such certification relates to the performance of such
Performing Party's duties pursuant to this Agreement or a modified certificate
limiting the certification therein to the performance of such Performing Party's
duties pursuant to this Agreement. In the event any Performing Party is
terminated or resigns pursuant to the terms of this Agreement, such Performing
Party shall provide a Performance Certification to the Depositor pursuant to
this Section 8.13(c) with respect to the period of time such Performing Party
was subject to this Agreement.
(d) Nothing contained in this Section 8.13 shall be construed to
require any party to this Agreement (other than the Depositor), or any of such
party's officers (except the officer of the Depositor who signs the
Sarbanes-Oxley Certification), to execute any Form 10-K or any Sarbanes-Oxley
Certification. The failure of any such party to this Agreement, or any of such
party's officers, to execute any Form 10-K or any Sarbanes-Oxley Certification
shall not be regarded as a breach by such party of any of its obligations under
this Agreement. The Depositor, each Performing Party and the Trustee hereby
agree to negotiate in good faith with respect to compliance with any further
guidance from the Commission or its staff relating to the execution of any Form
10-K and any Sarbanes-Oxley Certification. In the event such parties agree on
such matters, this Agreement shall be amended to reflect such agreement pursuant
to Section 11.01.
(e) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.13, (ii) negligence, bad faith or willful misconduct on the part
of such Performing Party in the performance of such obligations or (iii) any
inaccuracy made in the Performance Certification resulting from such Performing
Party's negligence, bad faith or willful misconduct. A Performing Party shall
have no obligation to indemnify any Certification Party for an inaccuracy in the
Performance Certification of any other Performing Party. If the indemnification
provided for in this Section 8.13 is unavailable or insufficient to hold
harmless a Certification Party (on grounds of public policy or otherwise), then
each Performing Party shall contribute to the amount paid or payable by such
Certification Party as a result of the losses, claims, damages or liabilities of
such Certification Party in such proportion as is appropriate to reflect the
relative fault of such Certification Party on the one hand and each Performing
Party on the other. The obligations of the Performing Parties in this subsection
(e) to contribute are several in the proportions described in the preceding
sentence and not joint.
Section 8.14 [Reserved].
Section 8.15 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of the Component Mortgage
Loan REMIC, REMIC I and REMIC II and to maintain the books and records thereof
for a commercially reasonable period) shall terminate upon payment (or provision
for payment) to the Certificateholders of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the purchase by the Majority
Certificateholder of the Controlling Class (other than the Depositor or a
Mortgage Loan Seller) the Master Servicer, or the Special Servicer (in that
order of priority) of all Mortgage Loans and each REO Property remaining in
REMIC I and the Component Mortgage Loan REMIC at a price (to be calculated by
the Master Servicer and the Trustee as of the close of business on the third
Business Day preceding the date upon which notice of any such purchase is
furnished to Certificateholders pursuant to the third paragraph of this Section
9.01 and as if the purchase was to occur on such Business Day) equal to (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I and the
Component Mortgage Loan REMIC, plus (B) the appraised value of each REO
Property, if any, included in REMIC I and the Component Mortgage Loan REMIC
(such appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special Servicer and approved by the Trustee), minus (C) if such
purchase is being made by the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by the related person, together
with any Advance Interest payable to the related person in respect of such
Advances and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the related person in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I and the Component Mortgage Loan REMIC; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor or a Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer and the Special Servicer, in that order of priority, has the
right to purchase all of the Mortgage Loans and each REO Property remaining in
the Component Mortgage Loan REMIC and REMIC I as contemplated by clause (i) of
the preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that the Master Servicer, the Special Servicer and any Majority
Certificateholder of the Controlling Class (other than the Depositor or a
Mortgage Loan Seller) each may so elect to purchase all of the Mortgage Loans
and each REO Property remaining in the Component Mortgage Loan REMIC and REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date, including
with respect to the CS Component Mortgage Loan, the CS Component Mortgage Loan
Subordinate Component, and with respect to the RP Component Mortgage Loan, the
RP Component Mortgage Loan Subordinate Components. In the event that the Master
Servicer, the Special Servicer or any Majority Certificateholder of the Class
(other than the Depositor or a Mortgage Loan Seller) elects to purchase all of
the Mortgage Loans and each REO Property remaining in the Component Mortgage
Loan REMIC and REMIC I in accordance with the preceding sentence, the Master
Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit into the Distribution Account not later than the
Master Servicer Remittance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited into the Certificate
Account) or, if a Loan Pair is involved, in the related Loan Pair Custodial
Account. In addition, the Master Servicer shall transfer all amounts required to
be transferred to the Distribution Account on such Master Servicer Remittance
Date from the Certificate Account or if a Loan Pair is involved, the related
Loan Pair Custodial Account pursuant to the first paragraph of Section 3.04(e).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Component Mortgage Loan REMIC and REMIC I.
Following the date on which the Class Principal Balances of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates are reduced to zero, the Sole Pooled Certificateholder shall have
the right to exchange all of such Certificates for all of the Mortgage Loans and
each REO Property (and if the next sentence applies, other than the portion of
each Component Mortgage Loan corresponding to the related Component Mortgage
Loan Subordinate Components) remaining in the Trust Fund by giving written
notice to all the parties hereto, the Bank of America Center Controlling Holder,
the CS Controlling Holder and the RP Controlling Holder no later than 60 days
prior to the anticipated date of exchange. In the event that the CS Component
Mortgage Loan Subordinate Component and the Corresponding Class CS Certificates
and/or the RP Component Mortgage Loan Subordinate Components and the
Corresponding Classes of Class RP Certificates, are then outstanding and the
Sole Pooled Certificateholder is not then the Holder (or Certificate Owner) of
all such Certificates, then the exchange of all the then outstanding
Certificates (other than the Residual Certificates) for the Mortgage Loans
remaining in the Trust (i) is limited to certain Classes of Certificates and
(ii) requires that all Certificateholders (including, notwithstanding any
statement in the Prospectus Supplement to the contrary, the holders of the Class
RP and Class CS Certificates), other than the Class R-I and Class R-II
Certificateholders, must voluntarily participate (such participation to not be
unreasonably withheld) (a "Termination Transaction"). In the event that the
Holders voluntarily participate in the exchange described above, such exchange
shall occur by means of an arms length transaction for which such Holder shall
have received, immediately upon the consummation of the exchange described in
the next sentence, consideration (which consideration may include (among other
things): cash (or its equivalent), a beneficial ownership interest in the
related Mortgage Loan in the form of a participation or any combination thereof)
for its beneficial ownership interest in the Trust Fund and its related interest
in any REMIC created hereunder equal to the value of the Certificates held by
such Holder. In the event that the holders of the Offered Private Certificates
refuse to participate in the exchange described above, the party exercising such
exchange right will have the option to deposit into the Certificate Account an
amount equal to the outstanding Certificate Balance of the Offered Private
Certificates, which will result in a prepayment of Offered Private Certificates.
Further, in the event that the Sole Pooled Certificateholder elect to exchange
all of their Certificates for all of the Mortgage Loans and each REO Property
(or the pro rata portion thereof allocable to such Holders) remaining in the
Trust in accordance with the second preceding sentence, such Sole Pooled
Certificateholder, not later than the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in the Certificate
Account an amount in immediately available funds equal to all amounts due and
owing to the Depositor, the Master Servicer, the Special Servicer and the
Trustee hereunder through the date of the liquidation of the Trust Fund that may
be withdrawn from the Certificate Account, or an escrow account acceptable to
the respective parties hereto, pursuant to Section 3.05(a) or that may be
withdrawn from the Distribution Account pursuant to Section 3.05(b), but only to
the extent that such amounts are not already on deposit in the Certificate
Account. In addition, the Master Servicer shall transfer all amounts required to
be transferred to the Component Mortgage Loan REMIC Distribution Account and the
REMIC I Distribution Account on such Distribution Date from the Certificate
Account pursuant to Section 3.04(c)(i). Upon confirmation that such final
deposits have been made and following the surrender of all the Certificates
beneficially owned by the Sole Pooled Certificateholder and, to the extent that
they have participated in such exchanges, the Holders of the Class CS and Class
RP Certificates then outstanding on the Final Distribution Date, the Trustee
shall, upon receipt of a Request for Release from the Master Servicer, release
or cause to be released to the Sole Pooled Certificateholder or any designee
thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the Sole
Pooled Certificateholder as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund, and the Trust
Fund shall be liquidated in accordance with Section 9.02. The remaining Mortgage
Loans and REO Properties shall thereupon be deemed distributed to the Sole
Pooled Certificateholder and the Holders of the Class CS and Class RP
Certificates then outstanding, to the extent of their respective interests, in
liquidation of the Trust Fund pursuant to Section 9.02. Solely for federal
income tax purposes, the Sole Pooled Certificateholder and the Holders of the
Class CS and Class RP then outstanding, to the extent of their respective
interests, shall be deemed to have purchased the assets of the Component
Mortgage Loan REMIC and REMIC I for an amount equal to the remaining Class
Principal Balance of their respective Certificates, plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates, the Component Mortgage
Loan REMIC Senior Regular Interests and the Corresponding REMIC I Regular
Interests.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
a Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in the Component Mortgage Loan REMIC and REMIC I, not earlier than the
15th day and not later than the 25th day of the month next preceding the month
of the final distribution on the Certificates or (b) otherwise during the month
of such final distribution on or before the 5th day of such month, in each case
specifying (i) the Distribution Date upon which the Trust will terminate and
final payment on the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the Component Mortgage Loan REMIC Senior
Regular Interests and the REMIC I Regular Interests shall be deemed to be made
on such date as provided in Section 4.01(a)(ii), Section 4.01(b), Section
4.01(c)(iii), Section 4.01(c)(iv), Section 4.01(j), and Section 4.01(k).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-II
Certificateholders shall be entitled to all unclaimed funds and other assets
that remain subject thereto.
Section 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or a
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in the Component Mortgage Loan REMIC and REMIC I as provided in
Section 9.01, the Trust (and, accordingly, the Component Mortgage Loan REMIC,
REMIC I and REMIC II) shall be terminated in accordance with the following
additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of the Component Mortgage Loan
REMIC, REMIC I or REMIC II as defined in Section 860F of the Code or cause the
Component Mortgage Loan REMIC, REMIC I or REMIC II to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the 90
day liquidation period in a statement attached to the final Tax Return for
each of the Component Mortgage Loan REMIC, REMIC I and REMIC II pursuant
to Treasury Regulations Section 1.860F-1;
(ii) during such 90 day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Component Mortgage Loan REMIC and REMIC I
(other than the Component Mortgage Loan REMIC Senior Regular Interests) to
the Master Servicer or the Majority Certificateholder of the Controlling
Class, as applicable, for cash; and
(iii) prior to the end of such 90 day period and at the time of the
making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Holders of the Class R-I Certificates (in the case of the Component
Mortgage Loan REMIC and REMIC I) and the Class R-II Certificates (in the
case of REMIC II) all cash on hand (other than cash retained to meet
claims), and each of the Component Mortgage Loan REMIC, REMIC I and REMIC
II shall terminate at that time.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of the
Component Mortgage Loan REMIC, REMIC I and REMIC II as a REMIC under the Code
and, if necessary, under Applicable State Law. Each such election will be made
on Form 1066 or other appropriate federal or state Tax Returns for the taxable
year ending on the last day of the calendar year in which the Certificates are
issued.
(b) (i) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class XC, Class XP, Class
A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, 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 and Class P Certificates are hereby designated as
the "regular interests" (within the meaning of Section 860G(a)(1) of the Code),
and the Class R-II Certificates are hereby designated as the sole Class of
"residual interest" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC II. For the avoidance of doubt, the Class XC and Class XP Certificates
represent "specified portions," within the meaning of Treasury Regulations
Section 1.860G-1(a)(2), of the interest payments on the REMIC I Regular
Interests corresponding to their respective Components. None of the REMIC
Administrator, the Master Servicer, the Special Servicer or the Trustee shall,
to the extent it is within the control of such Person, create or permit the
creation of any other "interests" in REMIC I or REMIC II or any interests other
than those specified in Section 10.01(b)(ii) in the Component Mortgage Loan
REMIC (within the meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(ii) The Component Mortgage Loan REMIC Senior Regular Interests and
the Class CS, Class RP-1, Class RP-2, Class RP-3 and Class RP-4
Certificates are hereby designated as the "regular interests" (within the
meaning of Section 860G(a)(2) of the Code) and the Component Mortgage Loan
REMIC Residual Interest, represented by the Class R-I Certificates, is
hereby designated as the sole class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code), in the Component Mortgage Loan
REMIC.
(c) The Closing Date is hereby designated as the "startup day" of
each of the Component Mortgage Loan REMIC, REMIC I and REMIC II within the
meaning of Section 860G(a)(9) of the Code. The "latest possible maturity date"
(within the meaning of Treasury Regulations Section 1.860G-1(a)(4)(iii)) of (i)
the REMIC II Regular Certificates (other than the Class XP Certificates), (ii)
the Class CS Certificates and the CS Component Mortgage Loan REMIC Senior
Regular Interest and (iii) the Class RP Certificates and the RP Component
Mortgage Loan REMIC Senior Regular Interest; is the Rated Final Distribution
Date. The "latest possible maturity date" of the REMIC I Regular Interests shall
be the same as for the REMIC II Regular Certificates (other than the Class XP
Certificates). The "latest possible maturity date" for the Class XP Certificates
shall be the Distribution Date in November 2011.
(d) The REMIC Administrator shall maintain separate accounting with
respect to the Component Mortgage Loan REMIC sufficient (i) to account for
distributions on the Component Mortgage Loan REMIC Senior Regular Interests as
assets of REMIC I; (ii) to account for distributions on the CS Component
Mortgage Loan Subordinate Component and the Class CS Certificates, and on the RP
Component Mortgage Loan Subordinate Components and the corresponding Class of
Class RP Certificates; (iii) to pay or cause to be paid any federal, state or
local income tax attributable to the Component Mortgage Loan REMIC from payments
received on or with respect to the related Mortgage Loans; and (iv) subject to
the deemed distribution of Excess Liquidation Proceeds and deemed recontribution
thereof to REMIC I, pursuant to Section 3.04(c)(iv), to cause any payments on
the related Mortgage Loan in excess amounts distributable in respect of the
related Component Mortgage Loan REMIC Senior Regular Interest and the Component
Mortgage Loan REMIC Subordinate Regular Interests to be distributed to the Class
R-I Certificates in respect of the Component Mortgage Loan REMIC Residual
Interest.
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II and shall: act on behalf of the Trust in relation to any tax matter or
controversy, represent the Trust in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of the Component
Mortgage Loan REMIC, REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of the Component Mortgage Loan REMIC, REMIC I or REMIC II, and
otherwise act on behalf of each of the Component Mortgage Loan REMIC, REMIC I
and REMIC II in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for the Component Mortgage Loan
REMIC, REMIC I and REMIC II. Subject to Section 10.01(h), the legal expenses and
costs of any action described in this subsection (e) and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(f) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(g) The REMIC Administrator shall perform or cause to be performed
on behalf of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II all
reporting and other tax compliance duties that are the responsibility of each
such REMIC under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any other taxing authority under Applicable State Law.
Included among such duties, the REMIC Administrator shall provide, or cause to
be provided: (i) to any Transferor of a Residual Certificate and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (ii) to the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required); and (iii) with respect to
REMIC II, Form 8811, or other applicable form, to the IRS, and the name, title,
address and telephone number of the Person who will serve as the representative
of REMIC II.
(h) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II as a
REMIC under the REMIC Provisions (and each of the other parties hereto shall
assist it, to the extent reasonably requested by it). The REMIC Administrator
shall not knowingly take (or cause any of the Component Mortgage Loan REMIC,
REMIC I or REMIC II to take) any action or fail to take (or fail to cause to be
taken) any action within the scope of its duties more specifically set forth
hereunder that, under the REMIC Provisions, if taken or not taken, as the case
may be, could result in an Adverse REMIC Event with respect to the Component
Mortgage Loan REMIC, REMIC I or REMIC II, unless the REMIC Administrator has
received an Opinion of Counsel to the effect that the contemplated action will
not result in an Adverse REMIC Event. None of the other parties hereto shall
take any action (whether or not authorized hereunder) as to which the REMIC
Administrator has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to the
Component Mortgage Loan REMIC, REMIC I or REMIC II, or causing the Component
Mortgage Loan REMIC, REMIC I or REMIC II to take any action, that is not
expressly permitted under the terms of this Agreement, each of the other parties
hereto will consult with the REMIC Administrator, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. None of the
parties hereto shall take any such action or cause the Component Mortgage Loan
REMIC, REMIC I or REMIC II to take any such action as to which the REMIC
Administrator has advised it in writing that an Adverse REMIC Event could occur.
The REMIC Administrator may consult with counsel to make such written advice,
and the cost of same shall be borne: (i) if such action that is not expressly
permitted by this Agreement would be of a material benefit to or otherwise in
the best interests of the Certificateholders as a whole, by the Trust and shall
be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account; and (ii) otherwise by the party
seeking to take the action not permitted by this Agreement.
In the event that any tax is imposed on the Component Mortgage Loan
REMIC, REMIC I or REMIC II, including, without limitation, "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any taxes on
contributions to the Component Mortgage Loan REMIC, REMIC I or REMIC II after
the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II on a calendar year and on an accrual basis. Such records with respect
to REMIC I shall include, for each Distribution Date, the applicable REMIC I
Principal Balance, REMIC I Remittance Rate, and each category of distribution on
or with respect to the REMIC I Regular Interests and the REMIC I Residual
Interest. Such records with respect to the Component Mortgage Loan REMIC shall
include, for each Distribution Date, the CS Component Mortgage Loan Senior
Balance, the RP Component Mortgage Loan Senior Balance, the Certificate
Principal Balances of the respective Component Mortgage Loan REMIC Subordinate
Regular Interests, the CS Component Mortgage Loan Accrued Component Interest,
the RP Component Mortgage Loan Accrued Component Interest and each other
category of distribution on or with respect to the Component Mortgage Loan REMIC
Regular Interests or the Component Mortgage Loan REMIC Residual Interest.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Component Mortgage Loan REMIC, REMIC I or
REMIC II unless it shall have received an Opinion of Counsel (at the expense of
the party seeking to cause such contribution) to the effect that the inclusion
of such assets in such REMIC will not cause: (i) such REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding; or (ii) the
imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of the Component Mortgage Loan REMIC, REMIC I or REMIC II, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Certificate Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(other than a Mortgaged Property acquired through foreclosure, deed-in-lieu of
foreclosure or otherwise in respect of a Defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account or the REO Account); in any event unless it has received an
Opinion of Counsel (from and at the expense of the party seeking to cause such
sale, disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not cause: (x) the Component Mortgage Loan REMIC, REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on the Component Mortgage Loan
REMIC, REMIC I or REMIC II under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which the Component Mortgage Loan REMIC,
REMIC I or REMIC II will receive a fee or other compensation for services or, to
the extent it is within the control of such Person, permit the Component
Mortgage Loan REMIC, REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of the
Component Mortgage Loan REMIC, REMIC I and REMIC II will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
Section 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten days after the Closing Date, all information or data
that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator to
enable it to perform its duties hereunder.
Section 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
Section 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any Companion Loan Noteholder, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein that may be defective
or may be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder that shall not
be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated; (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Trustee and the REMIC Administrator, is reasonably necessary to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action that, if made effective, would apply
retroactively to the Component Mortgage Loan REMIC, REMIC I or REMIC II at least
from the effective date of such amendment, or would be necessary to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of the
Component Mortgage Loan REMIC, REMIC I or REMIC II; (vi) to modify, add to or
eliminate any provisions of Section 5.02(d)(i), (ii) or (iii); or (vii) for any
other purpose; provided that such amendment (other than any amendment for the
specific purposes described in clauses (v) and (vi) above) shall not, as
evidenced by an Opinion of Counsel obtained by or delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
without such Certificateholder's written consent; and provided, further that
such amendment (other than any amendment for any of the specific purposes
described in clauses (i) through (vi) above) shall not result in a downgrade,
qualification (if applicable) or withdrawal of any rating then assigned to any
Class of Certificates by any Rating Agency (as evidenced by written confirmation
to such effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
that are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, (iii) change the definition of the
Servicing Standard, without the written consent of the Holders of all
Certificates outstanding, or (iv) modify the provisions of this Section 11.01
without the written consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor, the Master Servicer, the Special
Servicer or any of their respective Affiliates shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates. For purposes of this Section 11.01(b), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of this Section 11.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), the Agreement shall be
amended for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information that the holders of the Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates are entitled to receive or request to receive under this Agreement.
For purposes of this Section 11.01(c), a Class of Certificates is an "affected
Class" if and only if it would, as the result of any such amendment, experience
any of the effects described in clauses (i), (ii) and (iii) of Section 11.01(b).
Any restructuring pursuant to this Section 11.01(c) shall require, at the
expense of the requesting holders, the prior written approval of each Rating
Agency and confirmation of the ratings of each such Class of Certificates
(taking into account such restructuring), including confirmation that such
restructuring will not result in the downgrade, qualification (if applicable) or
withdrawal of the ratings then assigned to the Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on the Component Mortgage Loan REMIC, REMIC I,
REMIC II or any REMIC in which a Companion Loan is included pursuant to the
REMIC Provisions or cause the Component Mortgage Loan REMIC, REMIC I, REMIC II
or any REMIC in which a Companion Loan is included to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder, the holders of
the Bank of America Center Companion Loans and each Companion Loan Noteholder.
(f) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
11.01(a) or (d) shall be payable out of the Distribution Account.
(i) Amendments to this Agreement relating to the direct rights and
obligations of the GECC Primary Servicer shall require to the consent of the
GECC Primary Servicer.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 11.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or Companion
Loan Noteholder shall not operate to terminate this Agreement or the Trust, nor
entitle such Certificateholder or Companion Loan Noteholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or Companion Loan Noteholder shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholder be under any liability to any third party by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder or Companion Loan Noteholder shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement or any Mortgage Loan, unless, with respect to any suit, action or
proceeding upon or under or with respect to this Agreement, such Holder or
Companion Loan Noteholder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 214
North Tryon Street, NC1-027-021-02, Charlotte, North Carolina 28255,
Attention: Stephen Hogue, telecopy number: (704) 386-1094 (with copies to
Paul Kurzeja, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 100 North Tryon Street
(20th Floor, Charlotte, North Carolina 28255), telecopy number: (704)
387-0922;
(ii) in the case of the Master Servicer, Bank of America, N.A.,
Capital Markets Servicing Group, NC1-026-06-01, 900 West Trade Street,
Suite 650, Charlotte, North Carolina 28255, Attention: Servicing Manager,
telecopy number: (704) 317-4501, Reference: Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates Series 2004-5,
with copy to: Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP,
227 West Trade Street, 24th Floor, Charlotte, North Carolina 28202;
(iii) in the case of the Special Servicer, Lennar Partners, Inc.
1601 Washington Avenue, Suite 700, Miami Beach, Florida 33139, Attention:
Randy Wolpert, telecopy number: ((305)-695-5601);
(iv) in the case of the Trustee and REMIC Administrator, Wells Fargo
Bank, N.A., 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention:
Corporate Trust Services (CMBS), Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-5, telecopy
number: (410) 716-2380;
(v) in the case of the Rating Agencies, (A) Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention:
CMBS--Monitoring, facsimile number (212) 553 1350; (B) Standard & Poor's
Ratings Services, Inc., 55 Water Street, 41st Floor, New York, New York
10041-0003, Attention: Commercial Mortgage Group Surveillance Manager,
telecopy number (212) 438-2662;
(vi) in the case of the initial Directing Certificateholder, ING
Clarion Commercial Mortgage Securitization Fund, L.P., c/o Clarion
Capital, LLC, 230 Park Avenue, New York, New York 10169, Attention:
Stephen Baines, telecopy number: (212) 883-2886;
(vii) in the case of the Underwriters: (A) Banc of America
Securities LLC, 214 North Tryon Street, NC1-027-21-02, Charlotte, North
Carolina 28255, Attention: Stephen Hogue, telecopy number: (704) 386-1094;
(B) Deutsche Bank Securities Inc., 60 Wall Street, New York, New York
10005, Attention Lainie Kaye; (C) Citigroup Global Markets Inc., 388
Greenwich Street, New York, New York 10013, Attention: Angela Vleck; (D)
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Rolf Edwards; (E) J.P. Morgan Securities Inc., 270 Park Avenue,
New York, New York 10017, Attention: Steven Z. Schwartz; and with a copy
to A. James Cotins, Esq., Thacher Proffitt & Wood LLP, Two World Financial
Center, New York, New York 10281;
(viii) in the case of the GECC Primary Servicer, GEMSA Loan
Services, L.P. at 1500 City West Boulevard, Suite 200, Houston, Texas
77042, Attention: Jeffrey C. Harms, telecopy number (713) 458-7500;
or as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
Companion Loan Noteholder and any designees thereof acting on behalf of or
exercising the rights of such Companion Loan Noteholder shall be third-party
beneficiaries to this Agreement with respect to their rights as specifically
provided for herein. Except as specifically contemplated by Sections 3.22, 3.24,
6.03 and 8.05, no other person, including, without limitation, any Mortgagor,
shall be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
Section 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the related Mortgage
Loan Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor;
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Loan such
information as the Rating Agency shall reasonably request and that the Trustee,
the Master Servicer or the Special Servicer can reasonably provide in accordance
with applicable law and without waiving any attorney-client privilege relating
to such information. The Trustee, the Master Servicer and the Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(a) and (b), each of
the Master Servicer and the Special Servicer shall promptly furnish to each
Rating Agency copies or summaries (in such format as will be acceptable to the
Rating Agency) of any of the written reports (including, without limitation,
reports regarding property inspections) prepared, and any of the quarterly and
annual or other periodic operating statements and rent rolls collected, by it
pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Certificates required by the
first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, CS Controlling Holder, RP
Controlling Holder or Companion Loan Noteholder or a Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificateholder (if requested by such Holder), by any of the Trustee, the
Master Servicer or the Special Servicer pursuant to this Section 11.09, shall be
so delivered or otherwise made available through an electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
Section 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O or Class P Certificate shall be
entitled to, upon request to the Master Servicer, receive a copy from the Master
Servicer, of any notice or report to be delivered hereunder to the Directing
Certificateholder, at the requesting party's expense.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, CS Controlling Holder, RP Controlling Holder or Companion
Loan Noteholder or any Holder of a Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O or Class P Certificate, is stated
herein to be entitled to obtain from the Master Servicer or the Special
Servicer, upon request, any particular report or other item of information
obtained or prepared with respect to the Loans by the parties to this Agreement
in the course of their performance hereof, such request by such Person may take
the form of a standing request to the Master Servicer or the Special Servicer,
as the case may be, to receive all such reports or items until further notice.
Section 11.11 Acknowledgement by the GECC Primary Servicer. The GECC
Primary Servicer agrees, to the extent applicable to Primary Servicer and the
Mortgage Loans serviced by Primary Servicer, to be bound by the terms of this
Section and Sections 2.01, 2.05, 3.08, 3.11, 3.20, 3.22, 6.01, 6.02, 6.03, 6.04,
11.01 and 11.05 of this Agreement. In addition, the GECC Primary Servicer
further acknowledges that its ability to perform the functions specified in such
sections instead of the Master Servicer pursuant to such sections shall
terminate immediately upon a GECC Primary Servicer Event of Default and that the
Master Servicer will thereafter perform such functions. In performing its
obligations under this Agreement, the GECC Primary Servicer also expressly
acknowledges and agrees that it shall at all times be bound to act in accordance
with the Servicing Standard as set forth in Section 3.01 of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
Depositor
By: /s/
-----------------------------------
Name: Nidhi Kapila
Title: Vice President
|
BANK OF AMERICA, N.A.
Master Servicer
By: /s/
-----------------------------------
Name: Sean D. Riley
Title: Principal
|
LENNAR PARTNERS, INC.
Special Servicer
By: /s/
-----------------------------------
Name: Shelly L. Rubin
Title: Vice President
|
WELLS FARGO BANK, N.A.
Trustee and REMIC Administrator
By: /s/
-----------------------------------
Name: Deborah Daniels
Title: Vice President
|
GEMSA LOAN SERVICES, L.P.
solely with respect to the sections
referred to in and as provided by
Section 11.11 of this Agreement
By: /s/
-----------------------------------
Name: Joseph F. Beggins
Title: Chief Executive Officer
|
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 23rd day of November, 2004, before me, a notary public in and
for said State, personally appeared Nidhi Kapila, known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entities, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Demetria C. Criston
Notary Public
[SEAL]
My commission expires:
February 4, 2008
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 23rd day of November, 2004, before me, a notary public in and
for said State, personally appeared Sean Riley, known to me to be a Principal of
BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entities, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Demetria C. Criston
Notary Public
[SEAL]
My commission expires:
February 4, 2008
STATE OF FLORDIA )
) ss.:
COUNTY OF MIAMI-DADE )
|
On the 23rd day of November 2004, before me, a notary public in and
for said State, personally appeared Shelly L. Rubin, known to me to be a Vice
President of LENNAR PARTNERS, INC. one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
FELIX J. ALVAREZ
Notary Public
[SEAL]
My commission expires:
December 30, 2006
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 23rd day of November, 2004, before me, a notary public in and
for said State, personally appeared Deborah Daniels, known to me to be a Vice
President of WELLS FARGO BANK, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Demetria C. Criston
Notary Public
[SEAL]
My commission expires:
February 4, 2008
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
|
On the 23rd day of November, 2004, before me, a notary public in and
for said State, personally appeared Joseph F. Beggins, known to me to be a Chief
Executive Officer of GEMSA LOAN SERVICES, L.P. which executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Sandra L. Sanchez
Notary Public
[SEAL]
My commission expires:
May 8, 2006
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
3.8120 % per annum Certificate as of the Issue Date:
$57,600,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-1 Certificates as of the Issue
Date:
$57,600,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-1-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
4.1760% per annum Certificate as of the Issue Date:
$250,910,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-2 Certificates as of the Issue
Date:
$250,910,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-2-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-3
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
4.5610% per annum Certificate as of the Issue Date:
$305,377,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-3 Certificates as of the Issue
Date:
$305,377,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-3-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-4
Form of Class A-AB Certificate
CLASS A-AB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
4.6730% Certificate as of the Issue Date:
$45,540,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-AB Certificates as of the
Issue Date:
$45,540,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-AB CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-AB Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-5
Form of Class A-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$188,667,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-4 Certificates as of the Issue
Date:
$188,667,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-4-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-6
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
4.5420% Certificate as of the Issue Date:
$241,609,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 A-1A Certificates as of the Issue
Date:
$241,609,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-1A-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$90,241,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class A-J Certificates as of the Issue
Date: $90,241,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. A-J-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:___________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8-1
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$500,000,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XC Certificates as of the Issue Date:
$1,362,129,068
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XC-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By: __________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8-2
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1)[REG S](2)CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$500,000,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XC Certificates as of the Issue Date:
$1,362,129,068
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XC-2 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By: __________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8-3
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$362,129,068
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XC Certificates as of the Issue Date:
$1,362,129,068
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XC-3 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By: __________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9-1
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$500,000,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XP Certificates as of the Issue Date:
$1,331,702,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XP-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9-2
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$500,000,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XP Certificates as of the Issue Date:
$1,331,702,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XP-2 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9-3
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$331,702,000
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
November 1, 2004 XP Certificates as of the Issue Date:
$1,331,702,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. XP-3 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-10
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$39,161,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class B Certificates as of the Issue
Date:
$39,161,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. B-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$13,621,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class C Certificates as of the Issue
Date:
$13,621,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. C-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$22,135,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class D Certificates as of the Issue
Date:
$22,135,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. D-1 CUSIP No. __________
|
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$11,919,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class E Certificates as of the Issue
Date:
$11,919,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. E-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$17,026,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class F Certificates as of the Issue
Date:
$17,026,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. F-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$11,919,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class G Certificates as of the Issue
Date:
$11,919,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. G-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$22,134,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class H Certificates as of the Issue
Date:
$22,134,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. H-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$6,811,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
November 1, 2004 Date:
$6,811,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate Components
and the CBA B Notes) as of the Cut-off
Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. J-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
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|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$6,811,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class K Certificates as of the Issue
Date:
$6,811,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. K-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$3,405,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class L Certificates as of the Issue
Date:
$3,405,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. L-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1)[REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$5,108,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class M Certificates as of the Issue
Date:
$5,108,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. M-1 CUSIP No. [__________](1)
[__________](2)
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|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1)[REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$3,405,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class N Certificates as of the Issue
Date:
$3,405,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. N-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$3,406,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class O Certificates as of the Issue
Date:
$3,406,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. O-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$15,324,068
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class P Certificates as of the Issue
Date:
$15,324,068
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. P-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJEC TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE
OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR,
THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASERS OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the book
entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class CS Certificate
CLASS CS COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1)[REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$5,500,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class CS Certificates as of the Issue
Date:
$5,500,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. CS-1 CUSIP No. [__________](1)
[__________](2)
--------
|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IN THE ABSENCE OF (A) AN EVENT OF DEFAULT, (B) ACCELERATION OF THE CS COMPONENT
MORTGAGE LOAN, (C) THE CS COMPONENT MORTGAGE LOAN BECOMING A SPECIALLY SERVICED
MORTGAGE LOAN AS THE RESULT OF AN EVENT OF DEFAULT UNDER THE RELATED MORTGAGE
LOAN DOCUMENTS, OR (D) THE OCCURRENCE OF THE MATURITY DATE WITH RESPECT TO THE
CS COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID ON THE CS SENIOR COMPONENT
AND THE CS COMPONENT (AND THUS, TO THE CORRESPONDING CLASS OF CLASS CS
CERTIFICATES), PRO RATA (IN ACCORDANCE WITH THEIR RESPECTIVE OUTSTANDING
PRINCIPAL BALANCES). IF ANY OF THE EVENTS DESCRIBED IN (A) THROUGH (D) OF THE
PRIOR SENTENCE EXISTS WITH RESPECT TO THE CS COMPONENT MORTGAGE LOAN, PRINCIPAL
WILL BE PAID FIRST TO THE CS SENIOR COMPONENT UNTIL ITS OUTSTANDING PRINCIPAL
BALANCE IS REDUCED TO ZERO AND THEN TO THE CS COMPONENT UNTIL THE PRINCIPAL
BALANCE OF THE CS COMPONENT IS REDUCED TO ZERO. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Class CS Certificates are limited in right of distribution to
certain collections and recoveries respecting the CS Component Mortgage Loan,
all as more specifically set forth herein and in the Agreement. As provided in
the Agreement, withdrawals from the Certificate Account, the Distribution
Account and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to the Class
CS Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the CS Component Mortgage
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class CS Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25-1
Form of Class RP-1 Certificate
CLASS RP-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$5,029,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class RP-1 Certificates as of the
Issue Date:
$5,029,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. RP-1-1 CUSIP No. [__________](1)
[__________](2)
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|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IN THE ABSENCE OF (A) AN EVENT OF DEFAULT, (B) ACCELERATION OF THE RP COMPONENT
MORTGAGE LOAN, (C) THE RP COMPONENT MORTGAGE LOAN BECOMING A SPECIALLY SERVICED
MORTGAGE LOAN AS THE RESULT OF AN EVENT OF DEFAULT UNDER THE RELATED MORTGAGE
LOAN DOCUMENTS, OR (D) THE OCCURRENCE OF THE MATURITY DATE WITH RESPECT TO THE
RP COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID ON THE RP SENIOR COMPONENT
AND THE RP-1 COMPONENT, RP-2 COMPONENT, RP-3 COMPONENT AND RP-4 COMPONENT (AND
THUS, TO THE CORRESPONDING CLASS OF CLASS RP CERTIFICATES), PRO RATA (IN
ACCORDANCE WITH THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES). IF ANY OF THE
EVENTS DESCRIBED IN (A) THROUGH (D) OF THE PRIOR SENTENCE EXISTS WITH RESPECT TO
THE RP COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID FIRST TO THE RP SENIOR
COMPONENT UNTIL ITS OUTSTANDING PRINCIPAL BALANCE IS REDUCED TO ZERO AND THEN
SEQUENTIALLY TO THE RP-1 COMPONENT, RP-2 COMPONENT, RP-3 COMPONENT AND RP-4
COMPONENT UNTIL THE PRINCIPAL BALANCE OF EACH SUCH COMPONENT IS REDUCED TO ZERO.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 10th day of each month or, if such 10th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class RP Certificates are limited in right of distribution to
certain collections and recoveries respecting the RP Component Mortgage Loan,
all as more specifically set forth herein and in the Agreement. As provided in
the Agreement, withdrawals from the Certificate Account, the Distribution
Account and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to the Class
RP Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the RP Component Mortgage
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Certificate Registrar and any agents of any of them
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the purchase by the Majority Certificateholder of the Controlling
Class (other than the Depositor or either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I and the Component Mortgage Loan
REMIC, at a price determined as provided in the Agreement, and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I and the Component Mortgage
Loan REMIC. The Agreement permits, but does not require, any such Majority
Certificateholder, the Master Servicer or the Special Servicer to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including with respect to the CS Component Mortgage Loan, the CS Component
Mortgage Loan Subordinate Component, with respect to the RP Component Mortgage
Loan, the RP Component Mortgage Loan Subordinate Components. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Wells Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class RP-1 Certificates referred to in the within
mentioned Agreement.
Dated:
Wells Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
--------------------------------------------------------------------------------
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
|
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________ for the
account of ____________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ______________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25-2
Form of Class RP-2 Certificate
CLASS RP-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$3,770,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2004 Class RP-2 Certificates as of the
Issue Date:
$3,770,000
Cut-off Date: Approximate Aggregate unpaid principal
November 1, 2004 balance of the Mortgage Pool (less the
principal balance of the CS Subordinate
Component, the RP Subordinate
Components and the CBA B Notes) as of
the Cut-off Date, after deducting
payments of principal due on or before
such date (the "Initial Pool Balance"):
$1,362,129,068
Issue Date:
November 23, 2004
First Distribution Date:
December 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Lennar Partners, Inc. Wells Fargo Bank, N.A.
Certificate No. RP-2-1 CUSIP No. [__________](1)
[__________](2)
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|
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LENNAR PARTNERS,
INC. AND WELLS FARGO BANK, N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO
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