EXHIBIT 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Master Servicer,
MIDLAND LOAN SERVICES, INC.,
Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and REMIC Administrator,
and
ABN AMRO BANK N.V.,
Fiscal Agent
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
---------------------------------
$1,510,955,000
Commercial Mortgage Pass-Through Certificates
Series 2005-2
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.........................
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 Seller's 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 CP
Certificates; Creation of CP 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..........................
Section 2.12 Loss of Value Reserve Fund Provisions..........................
Section 2.13 Designation of Grantor Trust...................................
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 Interest Distribution Account, Excess Liquidation
Proceeds Account and Whole Loan Custodial Account.............
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Whole Loan Custodial Accounts
and the Excess Liquidation Proceeds Account...................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the Component Mortgage Loan REMIC
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds 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 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 or the
related Controlling Holder....................................
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 Whole Loans..............................
Section 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor.............................................
Section 3.30 Matters Relating to Certain Mortgage Loans.....................
Section 3.31 Matters Regarding the Fashion Show Mall Whole Loan.............
Section 3.32 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.........................................
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.......................................
Section 4.06 Excess Interest Distribution Account...........................
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.....
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator..................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator.................................................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others....................................................
Section 6.04 Master Servicer, Special 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...........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee..............................................
Section 8.02 Certain Matters Affecting the Trustee..........................
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or 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 and Fiscal Agent.............................
Section 8.09 Merger or Consolidation of Trustee or Fiscal Agent.............
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 Fiscal Agent Appointed; Concerning the Fiscal Agent............
Section 8.15 Maintenance of Mortgage File...................................
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 AND GRANTOR TRUST 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....................
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-4 Certificate
EXHIBIT A-5 Form of Class A-AB Certificate
EXHIBIT A-6 Form of Class A-5 Certificate
EXHIBIT A-7 Form of Class XC Certificate
EXHIBIT A-8 Form of Class XP Certificate
EXHIBIT A-9 Form of Class A-M Certificate
EXHIBIT A-10 Form of Class A-J Certificate
EXHIBIT A-11 Form of Class B Certificate
EXHIBIT A-12 Form of Class C Certificate
EXHIBIT A-13 Form of Class D Certificate
EXHIBIT A-14 Form of Class E Certificate
EXHIBIT A-15 Form of Class F Certificate
EXHIBIT A-16 Form of Class G Certificate
EXHIBIT A-17 Form of Class H Certificate
EXHIBIT A-18 Form of Class J Certificate
EXHIBIT A-19 Form of Class K Certificate
EXHIBIT A-20 Form of Class L Certificate
EXHIBIT A-21 Form of Class M Certificate
EXHIBIT A-22 Form of Class N Certificate
EXHIBIT A-23 Form of Class O Certificate
EXHIBIT A-24 Form of Class P Certificate
EXHIBIT A-25 Form of Class R-I Certificate
EXHIBIT A-26 Form of Class R-II Certificate
EXHIBIT A-27 Form of Class CP Certificate
EXHIBIT A-28 Form of Class V 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
EXHIBIT R Form of Notice Relating to the Fashion Show Mall Mortgage
Loan
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 Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule of Controlling Holders and Operating Advisors
ANNEX A Description of Contemplated Lease Modification regarding
Loan No. 58623
This Pooling and Servicing Agreement (this "Agreement"), dated and
effective as of June 1, 2005, is by and 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 as REMIC Administrator, and ABN AMRO BANK N.V., as Fiscal Agent.
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, exclusive of the Excess Interest and the
Excess Interest Distribution Account, 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 CP 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 CP Component Mortgage Loan REMIC Senior
Regular Interest and the CP Component Mortgage Loan REMIC Subordinate Regular
Interest. The CP Component Mortgage Loan REMIC Senior Regular Interest will not
be certificated and will be held by REMIC I. The Class CP Certificates will
represent the CP Component Mortgage Loan REMIC Subordinate Regular Interest.
The following table sets forth the initial CP Component Mortgage
Loan Senior Balance and the Corresponding Component Mortgage Loan REMIC Senior
Regular Interest:
Corresponding Component Mortgage
Initial CP Component Mortgage Loan REMIC
Loan Senior Balance Senior Regular Interest
------------------------------- ---------------------------------
$33,500,000 CP Component Mortgage Loan Senior
Regular Interest
The following table sets forth the initial CP Component Mortgage
Loan Subordinate Balance and the Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interest:
Corresponding Component Mortgage
Initial CP Component Mortgage Loan REMIC
Loan Subordinate Balance Subordinate Regular Interest
------------------------------- ---------------------------------
$5,000,000 Class CP Certificates
REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Majority Mortgage Loans (exclusive of Excess
Interest), the CP Component Mortgage Loan REMIC Senior Regular Interest 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 $3,379,000 XA-1-1
LA-1-2 $4,440,000 XA-1-2
LA-1-3 $15,781,000 XA-1-3
Class A-2 LA-2-1 $15,864,000 XA-2-1
LA-2-2 $36,577,000 XA-2-2
LA-2-3 $84,659,000 XA-2-3
Class A-3 LA-3-1 $79,272,000 XA-3-1
LA-3-2 $27,611,000 XA-3-2
LA-3-3 $25,314,000 XA-3-3
LA-3-4 $86,914,000 XA-3-4
LA-3-5 $17,689,000 XA-3-5
Class A-4 LA-4-1 $9,935,000 XA-4-1
LA-4-2 $142,908,000 XA-4-2
LA-4-3 $18,375,000 XA-4-3
LA-4-4 $16,762,000 XA-4-4
LA-4-5 $18,720,000 XA-4-5
Class A-AB LA-AB-1 $3,139,000 XA-AB-1
LA-AB-2 $4,494,000 XA-AB-2
LA-AB-3 $4,871,000 XA-AB-3
LA-AB-4 $3,526,000 XA-AB-4
LA-AB-5 $1,200,000 XA-AB-5
LA-AB-6 $4,997,000 XA-AB-6
LA-AB-7 $6,052,000 XA-AB-7
LA-AB-8 $38,231,000 XA-AB-8
Class A-5 LA-5-1 $99,232,000 XA-5-1
LA-5-2 $27,017,000 XA-5-2
LA-5-3 $352,682,000 XA-5-3
Class A-M LA-M $164,234,000 XA-M
Class A-J LA-J $108,805,000 XA-J
Class B LB $43,111,000 XB
Class C LC $16,423,000 XC
Class D LD-1 $9,341,000 XD-1
LD-2 $8,808,000 XD-2
LD-3 $10,592,000 XD-3
Class E LE-1 $6,172,000 XE-1
LE-2 $9,990,000 XE-2
LE-3 $261,000 XE-3
Class F LF-1 $4,723,000 XF-1
LF-2 $11,580,000 XF-2
LF-3 $4,227,000 XF-3
Class G LG-1 $10,168,000 XG-1
LG-2 $8,309,000 XG-2
Class H LH-1 $979,000 XH-1
LH-2 $14,066,000 XH-2
LH-3 $3,431,000 XH-3
Class J LJ $8,212,000 XJ
Class K LK-1 $804,000 XK-1
LK-2 $5,355,000 XK-2
Class L LL $6,159,000 XL
Class M LM $4,106,000 XM
Class N LN $2,053,000 XN
Class O LO $10,265,000 XO
Class P LP $20,529,323 XP
------------
(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-4, Class A-AB, Class A-5, Class XC, Class XP,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O 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
the Class CP Certificates, which are issued by the Component Mortgage Loan
REMIC:
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular Certificates
Class A-1 4.0410% per annum $23,600,000
Class A-2 4.2470% per annum $137,100,000
Class A-3 4.6110% per annum $236,800,000
Class A-4 4.7830% per annum (1) $206,700,000
Class A-AB 4.7420% per annum (1) $66,510,000
Class A-5 4.8570% per annum (1) $478,931,000
Class A-M 4.9130% per annum (1) $164,234,000
Class A-J 4.9530% per annum (1) $108,805,000
Class B 4.7812% per annum (2) $43,111,000
Class C 4.8112% per annum (2) $16,423,000
Class D 4.8712% per annum (2) $28,741,000
Class E 4.9902% per annum (2) $16,423,000
Class F 5.0062% per annum (3) $20,530,000
Class G 5.0062% per annum (3) $18,477,000
Class H 5.0062% per annum (3) $18,476,000
Class J 4.6120% per annum (1) $8,212,000
Class K 4.6120% per annum (1) $6,159,000
Class L 4.6120% per annum (1) $6,159,000
Class M 4.6120% per annum (1) $4,106,000
Class N 4.6120% per annum (1) $2,053,000
Class O 4.6120% per annum (1) $10,265,000
Class P 4.6120% per annum (1) $20,529,323
Class XC 0.0388% per annum (4) $1,642,344,323(5)
Class XP 0.2199% per annum (4) $1,602,012,000(5)
Class CP 7.2080% per annum (6) $5,000,000
------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-4, Class
A-AB, Class A-5, Class A-M, Class A-J, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates for each Distribution Date will
not exceed the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class B, Class C,
Class D and Class E Certificates for each Distribution Date will equal the
Weighted Average Adjusted Net Mortgage Rate for such Distribution Date
minus 0.225%, 0.195%, 0.135% and 0.016%, respectively.
(3) Initial Pass-Through Rate. The Pass-Through Rate for the Class F, Class G
and Class H Certificates for each Distribution Date will equal the
Weighted Average Adjusted Net Mortgage Rate for such Distribution Date.
(4) 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".
(5) The Class XC and Class XP Certificates will not have Class Principal
Balances; rather, each such Class of Certificates will accrue interest as
provided herein on the related Notional Amount.
(6) The rates set forth in the "Pass-Through Rate" column for the Class CP
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 CP Certificates for each
Interest Accrual Period, the Pass-Through Rate will be converted to the
annualized rate of interest at which interest would have to accrue on the
Certificate Balance of the Class CP 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 the Class CP Certificates for such
Interest Accrual Period at the rate 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 the Available Distribution Amount for such Distribution Date, if any,
remaining in the Component Mortgage Loan REMIC Distribution Account or 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).
The portion of the Trust Fund consisting of the Excess Interest and
the Excess Interest Distribution Account shall be treated as a grantor trust
(the "Grantor Trust") for federal income tax purposes. The Class V Certificates
represent undivided beneficial interests in the portion of the Grantor Trust
representing Excess Interest and the Excess Interest Distribution Account for
federal income tax purposes.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent 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 Whole Loans": The Mission City Corporate Center Whole Loan and
the Regents Square I & II Whole Loan.
"Accrued Certificate Interest": With respect to the Class CP
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 CP
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 CP Component Mortgage Loan Senior Component Interest": With
respect to the CP Component Mortgage Loan Senior Component for any Distribution
Date, one month's interest at the Adjusted Net Mortgage Rate applicable to the
CP Component Mortgage Loan Senior Component for such Distribution Date, accrued
on the CP Component Mortgage Loan Senior Balance outstanding immediately prior
to such Distribution Date. For the avoidance of doubt, the Accrued CP Component
Mortgage Loan Senior Component Interest 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
Principal 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 Majority Mortgage
Loan or related REO Loan or the CP 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 the
CP 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 Mortgage Loan, REO Loan the CP
Component Mortgage Loan Senior Component, as the case may be, at the related Net
Mortgage Rate in effect for such Mortgage Loan, REO Loan the CP Component
Mortgage Loan Senior Component during such calendar month. Such rate shall be
calculated by multiplying (i) the Net Mortgage Rate (and, in the case of an ARD
Loan after its Anticipated Repayment Date, without giving effect to any Excess
Interest or the Excess Interest Rate) by (ii) the actual number of days of
accrued interest for the related period for such Mortgage Loan or REO Loan the
CP Component Mortgage Loan Senior Component, divided by 30; provided, however,
that with respect to such Mortgage Loan, REO Loan the CP 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 CP Component
Mortgage Loan Senior Component, 5.2359%) 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, the Trustee or the Fiscal Agent, as the case may be, all in
accordance with Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of the Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon the Grantor Trust
or any of its assets or transactions.
"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 Accountant's Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Loan, which date is prior to the Stated Maturity Date for such
Loan.
"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 a Loan or REO Loan 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) 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, the Trustee or the Fiscal Agent 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), 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.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to any A/B Whole Loan, references to the Stated
Principal Balance will be to the entire Stated Principal Balance thereof (i.e.,
the aggregate Stated Principal Balances of the related Mortgage Loan and the
related Companion Loans).
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts in connection with any P&I Advance required to be made under
this Agreement for a Mortgage Loan constituting a part of a Whole Loan, such
calculation shall be made based upon and allocated solely to the Stated
Principal Balance of the Mortgage Loan contained in such Whole Loan and shall
exclude the related Companion Loan.
Appraisal Reduction Amounts for the CP Component Mortgage Loan will
be allocated (a) first, to the CP Component Mortgage Loan Subordinate Component
and (b) thereafter any remaining Appraisal Reduction Amounts will be allocated
to the CP Component Mortgage Loan Senior Component.
Any Appraisal Reduction Amount for any A/B Whole Loan shall be
deemed allocated, first, to the related B Note to the extent of its outstanding
principal balance, and then to the related Mortgage Loan.
In addition, notwithstanding anything to the contrary and for the
avoidance of doubt, Appraisal Reduction Amounts with respect to the Fashion Show
Mall Whole Loan shall be calculated in accordance with the Fashion Show Mall
Pooling Agreement. Pursuant to the Fashion Show Mall Pooling Agreement, any
Appraisal Reduction Amount for the Fashion Show Mall Whole Loan shall be
allocated first, to the Fashion Show Mall Note A-1 Junior Portion and, then to
the Fashion Show Mall Note A-1 Senior Portion and the Fashion Show Mall Pari
Passu Note A-2 pro rata based on outstanding principal balance.
"Appraisal Trigger Event": With respect to any Loan (excluding
the Fashion Show Mall Mortgage Loan), any of the following events:
(i) such Loan becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan 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) subject to Section 3.21(f), 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 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 Fashion Show Mall 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 Fashion Show Mall Mortgaged Property, the
appraised value shall be determined pursuant to the Fashion Show Mall Pooling
Agreement.
"Approval Provisions": With respect to any Loan (excluding the
Fashion Show Mall Mortgage Loan) and the provisions set forth in Section
3.21(e), 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 (in each case subject
to the limitations set forth in Section 3.21(e) and Section 3.21(f):
(i) with respect to any Performing Loan, the Master Servicer
shall obtain the approval or consent of the Special Servicer in
connection with a Special Action;
(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
in connection with a Special Action;
(iv) with respect to the CP Component Mortgage Loan or any A/B
Whole Loan during any time period that a related Control Appraisal
Period does not exist, the Master Servicer, if the CP Component
Mortgage Loan or such A/B Whole 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
related Controlling Holder in connection with a Special Action; and
(v) with respect to the CP Component Mortgage Loan or any A/B
Whole Loan during any time period that a related Control Appraisal
Period does not exist, the Special Servicer, if the CP Component
Mortgage Loan or such A/B Whole Loan is a then Specially Serviced
Loan, shall obtain the approval and consent of the related
Controlling Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(ii) and (iv) 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, any
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 (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) and (v) above, the related
Controlling Holder shall respond in writing (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.
"ARD Loan": Any Mortgage Loan identified on the Mortgage Schedule as
such pursuant to clause (xv) under the definition of Mortgage Loan Schedule.
"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 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 on which such 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 (exclusive, in the case of an ARD Loan after its
Anticipated Repayment Date, of Excess 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 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 Fashion Show Mall Mortgage Loan, only to the extent received by the
Trustee pursuant to the Fashion Show Mall Intercreditor Agreement, an amount
equal to (a) the balance on deposit in the Certificate Account and the
Distribution Account as of the close of business on the related Determination
Date, 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, the
Trustee or the Fiscal Agent to cover uncollected Monthly Payments due and/or
Assumed Monthly Payments deemed due during the related Collection Period, any
amounts received from the Fashion Show Mall Master Servicer in respect of the
Fashion Show Mall Mortgage Loan pursuant to the Fashion Show Mall Pooling
Agreement and/or the Fashion Show Mall Intercreditor Agreement, any Compensating
Interest Payments made by the Master Servicer to cover Prepayment Interest
Shortfalls incurred during the related Collection Period, the portion of Loss of
Value Payments deposited into the Certificate Account pursuant to Section
3.05(g) 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) Excess Interest, (v) 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), (vi) any amounts deposited into
the REMIC I Distribution Account in error, (vii) all funds released from the
Excess Liquidation Proceeds Account with respect to such Distribution Date,
(viii) any amounts payable or reimbursable to any Person from the Certificate
Account pursuant to clauses (ii) through (xvii) of Section 3.05(a), (ix) 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, and (x) with respect to the first Distribution Date, the related Interest
Deposit Amount; 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; and (II) with respect to the CP 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 Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated June 15, 2005,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"B Note": With respect to the Mission City Corporate Center A/B
Whole Loan, the Mission City Corporate Center B Note, and with respect to the
Regents Square I & II A/B Whole Loan, the Regents Square I & II B Note.
"B Noteholder": With respect to the Mission City Corporate Center
A/B Whole Loan, the Holder of the Mission City Corporate Center B Note, and with
respect to the Regents Square I & II A/B Whole Loan, the Holder of the Regents
Square I & II B Note.
"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 Mortgage Loan Seller pursuant to Section
4(b) of the Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in Pennsylvania, New York, any city in which the
office of the Certificate Registrar is located or any city in which the
Corporate Trust Office of the Trustee or principal place of business of the
Master Servicer or Special Servicer is located are authorized or obligated by
law or executive order to remain closed, provided that for purposes of
administering the Canadian Loan only, a day on which banking institutions in
Canada are authorized or obligated by law or executive order to remain closed
shall not be a Business Day.
"Canadian Bank Act": Bank Act, Revised Statutes of Canada (1991).
"Canadian Loan": The Mortgage Loan identified as Loan No. 58625 in
the Mortgage Loan Schedule attached hereto as Schedule I.
"Canadian Income Tax Act": Income Tax Act, Revised Statutes of
Canada (1985).
"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 2005-2 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 2005-2, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates or the Class CP Certificates, as of any date of determination, a
fraction, expressed as a decimal carried to eight places, the numerator of which
is the then related Class Principal Balance or Class Notional Amount, as the
case may be, and the denominator of which is the related Initial Class Principal
Balance or Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
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 Notional Amount of such Class
X 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 Principal Pay
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, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Fiscal Agent 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 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 Certificate": Any one of the Class X-0, Xxxxx X-0, Class
A-3, Class A-4, Class A-AB, Class A-5, Class A-M and Class A-J 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
4.0410%.
"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
4.2470%.
"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
4.6110%.
"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-4
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 4.7830%;
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-5 Certificate": Any one of the Certificates with a "Class
A-5" 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-5 Pass-Through Rate": A per annum rate equal to 4.8570%;
provided, however, that the Class A-5 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"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-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-AB Pass-Through Rate": A per annum rate equal to 4.7420%;
provided, however, that the Class A-AB Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-AB Planned Principal Amount": The planned principal amount
set forth on Annex C to the Prospectus Supplement relating to principal payments
for the Class A-AB Certificates.
"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-10
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 4.9530%;
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 A-M Certificate": Any one of the Certificates with a "Class
A-M" 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 A-M Pass-Through Rate": A per annum rate equal to 4.9130%;
provided, however, that the Class A-M 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-11
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 the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.225%.
"Class C Certificate": Any one of the Certificates with a "Class C"
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 C Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.195%.
"Class CP Pass-Through Rate": With respect to any Distribution Date
and the Class CP Certificates, the rate per annum set forth in the Preliminary
Statement hereto.
"Class CP Certificate": Any one of the Certificates with a "Class
CP" designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
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 D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.135%.
"Class E Certificate": Any one of the Certificates with a "Class E"
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 E Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.016%.
"Class F Certificate": Any one of the Certificates with a "Class F"
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 F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate 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-16
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 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-17
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-18
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 4.6210%;
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-19
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 4.6210%;
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-20
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 4.6210%;
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-21
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 4.6210%;
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-22
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 4.6210%;
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-23
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 4.6210%;
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-24
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 4.6210%;
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 Principal Pay 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 Principal Pay
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) 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-25
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-26
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class V Certificate": Any one of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-28
attached hereto, and evidencing undivided beneficial interests in the portion of
the Trust Fund consisting of Excess Interest and the Excess Interest
Distribution Account.
"Class X Certificates": Any one of the Class XC or Class XP
Certificates.
"Class X Notional Amount": The Class XC Notional Amount or 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-7
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 Components.
"Class XC Pass-Through Rate": With respect to the initial
Distribution Date, 0.0388% 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 (i) the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date, minus (ii) 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-8
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
XA-1-2 December 2005 Distribution Date
XA-1-3 and XA-2-1 June 2006 Distribution Date
XA-2-2 December 2006 Distribution Date
XX-0-0, XX-0-0, XX-0 and XL June 2007 Distribution Date
XX-0-0, XX-XX-0, XX-0, XX and XK-2 December 2007 Distribution Date
XX-0-0, XX-XX-0 and XH-2 June 2008 Distribution Date
XX-0-0, XX-XX-0, XX-0 and XH-3 December 2008 Distribution Date
XX-0-0, XX-0-0, XX-XX-0, XF-1 and June 2009 Distribution Date
XX-0
XX-0-0, XX-XX-0 and XF-2 December 2009 Distribution Date
XA-4-3, XA-AB-6, XE-1 and XF-3 June 2010 Distribution Date
XX-0-0, XX-XX-0 and XE-2 December 2010 Distribution Date
XX-0-0, XX-XX-0, XX-0-0, XX-0 and June 2011 Distribution Date
XE-3
XA-5-2 and XD-2 December 2011 Distribution Date
XA-5-3, XA-M, XA-J, XB, XC and XD-3 June 2012 Distribution Date
"Class XP Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XX-XX-0, Xxxxxxxxx XX-XX-0,
Xxxxxxxxx XX-XX-0, Component XA-AB-5, Component XX-XX-0, Xxxxxxxxx XX-XX-0,
Xxxxxxxxx XX-XX-0, Component XA-5-1, Component XA-5-2, Component XA-5-3,
Component XA-M, Component XA-J, Component XB, Component XC, Component XD-1,
Component XD-2, Component XD-3, Component XE-1, Component XE-2, Component XE-3,
Component XF-1, Component XF-2, Component XF-3, Component XG-1, Component XG-2,
Component XH-1, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1,
Component XK-2, and Component XL.
"Class XP (Class B) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class B Certificates, 0.195%.
"Class XP (Class C) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class C Certificates, 0.165%.
"Class XP (Class D) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class D Certificates, 0.105%.
"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, 0.2199% 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, (v) with respect to Component XB, the Class XP (Class B) Fixed
Strip Rate, (w) with respect to Component XC, the Class XP (Class C) Fixed Strip
Rate, (x) with respect to Component XD, the Class XP (Class D) Fixed Strip Rate,
and (y) 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 (z) 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.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": June 28, 2005.
"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, placement agents 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 Advance Recovery Report": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"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
(a) 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;
(b) 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;
(c) the CMSA Advance Recoverability Report; and
(d) 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.
"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.
"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 "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"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": Collectively, the Fashion Show Mall Pari Passu
Note A-1 Companion Loan, the Mission City Corporate Center B Note and the
Regents Square I & II B Note.
"Companion Loan Noteholder": With respect to (i) the Fashion Show
Mall Whole Loan, the Fashion Show Mall Pari Passu Note A-1 Companion Loan
Noteholder, (ii) with respect to the Mission City Corporate Center Whole Loan,
the Mission City Corporate Center B Noteholder, and (iii) with respect to the
Regents Square I & II Whole Loan, the Regents Square I & II 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 XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-4-2, Component XA-4-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XX-XX-0, Xxxxxxxxx XX-XX-0,
Xxxxxxxxx XX-XX-0, Component XA-AB-5, Component XX-XX-0, Xxxxxxxxx XX-XX-0,
Xxxxxxxxx XX-XX-0, Component XA-5-1, Component XA-5-2, Component XA-5-3,
Component XA-M, Component XA-J, Component XB, Component XC, Component XD-1,
Component XD-2, Component XD-3, Component XE-1, Component XE-2, Component XE-3,
Component XF-1, Component XF-2, Component XF-3, Component XG-1, Component XG-2,
Component XH-1, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK-1,
Component XK-2, Component XL, Component XM, Component XN, Component XO and
Component XP.
"Component Mortgage Loan": The CP Component Mortgage Loan.
"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 CP Component Mortgage Loan, any related
REO Property and all payments under and proceeds of such Mortgage Loan 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 Loan on
or before the Cut-off Date and other than Excess Interest), together with all
documents, Escrow Payments and Reserve Funds delivered or caused to be delivered
hereunder by the Mortgage Loan Seller with respect to such Mortgage Loan, (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 Loan 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).
"Component Mortgage Loan REMIC Distribution Account": As defined in
Section 3.04(c)(iii).
"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 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 53 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-2-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-3-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-4-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-4-3": One of the 53 components of the Class XC
Certificates and one of the 48 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-4-3 as of any date of determination.
"Component XA-4-4": One of the 53 components of the Class XC
Certificates and one of the 48 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-4-4 as of any date of determination.
"Component XA-4-5": One of the 53 components of the Class XC
Certificates and one of the 48 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-4-5 as of any date of determination.
"Component XA-AB-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-AB-6": One of the 53 components of the Class XC
Certificates and one of the 48 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-6 as of any date of determination.
"Component XA-AB-7": One of the 53 components of the Class XC
Certificates and one of the 48 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-7 as of any date of determination.
"Component XA-AB-8": One of the 53 components of the Class XC
Certificates and one of the 48 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-8 as of any date of determination.
"Component XA-5-1": One of the 53 components of the Class XC
Certificates and one of the 48 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-5-1 as of any date of determination.
"Component XA-5-2": One of the 53 components of the Class XC
Certificates and one of the 48 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-5-2 as of any date of determination.
"Component XA-5-3": One of the 53 components of the Class XC
Certificates and one of the 48 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-5-3 as of any date of determination.
"Component XA-J": One of the 53 components of the Class XC
Certificates and one of the 48 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 XA-M": One of the 53 components of the Class XC
Certificates and one of the 48 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-M as of any date of determination.
"Component XB": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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-1": One of the 53 components of the Class XC
Certificates and one of the 48 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-1 as of any date of determination.
"Component XD-2": One of the 53 components of the Class XC
Certificates and one of the 48 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-2 as of any date of determination.
"Component XD-3": One of the 53 components of the Class XC
Certificates and one of the 48 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-3 as of any date of determination.
"Component XE-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 XG-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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": One of the 53 components of the Class XC
Certificates and one of the 48 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 as of any date of determination.
"Component XK-1": One of the 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 components of the Class XC
Certificates and one of the 48 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 53 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 53 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 53 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 53 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 Fashion Show Mall Mortgage Loan, to the extent
of any portion of such amounts received by the Master Servicer or Special
Servicer pursuant to the Fashion Show Mall 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": With respect to (i) the CP Component
Mortgage Loan, the CP Control Appraisal Period, (ii) the Mission City Corporate
Center Whole Loan, the Mission City Corporate Center Control Appraisal Period,
and (iii) the Regents Square I & II Whole Loan, the Regents Square I & II
Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A 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).
"Controlling Holder": With respect to the CP Component Mortgage
Loan, the CP Controlling Holder; with respect to the Mission City Corporate
Center Whole Loan, the Mission City Corporate Center Controlling Holder; and
with respect to the Regents Square I & II Whole Loan, the Regents Square I & II
Controlling Holder. Each such initial Controlling Holder and, if applicable, the
related Operating Advisor shall be set forth on Schedule VII hereto.
"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 000 Xxxxx XxXxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services, BACM
2005-2, 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 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.
"Covered Risks": As defined in Section 3.07(a).
"CP Component Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. 58449.
"CP Component Mortgage Loan Accrued Component Interest": In respect
of the CP Component Mortgage Loan Components for each Distribution Date, an
amount equal to one calendar month's interest at the applicable interest rate
for each CP Component Mortgage Loan Component, which in the case of the CP
Component Mortgage Loan Senior Component is equal to 5.2359% per annum and in
the case of the CP Component Mortgage Loan Subordinate Component, is equal to
the Pass-Through Rate of the Class CP Certificates.
"CP Component Mortgage Loan Available Distribution Amount": With
respect to the CP Component Mortgage Loan and any Distribution Date, an amount
equal to (a) the balance on deposit in the Certificate Account and the
Distribution Account as of the close of business on the related Determination
Date relating to the CP 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 CP 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 CP Component
Mortgage Loan, and for the Distribution Date occurring in each March, the
related Withheld Amounts remitted to the Distribution Account pursuant to
Section 4.05 with respect to the CP 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 CP 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 CP Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or reimbursable to any Person from the
Distribution Account pursuant to any of clauses (ii) through (vi) of Section
3.05(b), (v) any amounts deposited into the 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 CP 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 CP 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.
"CP Component Mortgage Loan Component": Each of the CP Component
Mortgage Loan Senior Component and the CP Component Mortgage Loan Subordinate
Component.
"CP Component Mortgage Loan Component Principal Entitlement": In the
absence of a monetary event of default or other material event of default under
the CP Component Mortgage Loan documents, principal will be paid on the CP
Component Mortgage Loan Senior Component and the CP Component Mortgage Loan
Subordinate Component, pro rata (in accordance with their respective outstanding
principal balances). In the event of a monetary event of default or other
material event of default under the CP Component Mortgage Loan documents,
principal collected will be paid first to the CP Component Mortgage Loan Senior
Component until its outstanding principal balance is reduced to zero and then to
the CP Component Mortgage Loan Subordinate Component until the principal balance
of such Component is reduced to zero. Accordingly, the "CP Component Mortgage
Loan Component Principal Entitlement" with respect to the CP Component Mortgage
Loan is (a) prior to the occurrence of any event of monetary default or other
material event of default under the CP Component Mortgage Loan, an amount equal
to such CP Component's pro rata share of the CP Component Mortgage Loan
Principal Distribution Amount and (b) after the occurrence of any event of
monetary default or other material event of default under the CP Component
Mortgage Loan documents, an amount equal to the lesser of (i) the outstanding
principal balance of such CP Component and (ii) the portion of the Class CP
Component Mortgage Loan Principal Distribution Amount remaining after giving
effect to all distributions of higher priority on such Distribution Date.
"CP 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 CP Component Mortgage
Loan for the related Due Date occurring during the related
Collection Period;
(ii) all Principal Prepayments received on the CP Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the CP 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 CP
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 CP Component Mortgage Loan during the
related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of the CP 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
CP Component Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered.
"CP Component Mortgage Loan Principal Distribution Amount": With
respect to any Distribution Date, the aggregate of the CP 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 CP Component Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the CP Component Mortgage Loan Senior Component and the Class
CP Certificates on the preceding Distribution Date.
"CP 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, the Uncertificated Principal Balance of which accrues interest at the
same rate as interest accrues on the CP Component Mortgage Loan Senior
Component.
"CP Component Mortgage Loan Senior Balance": With respect to the CP
Component Mortgage Loan Senior Component, the principal balance of the CP
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 CP Component Mortgage Loan Senior
Balance shall be reduced by the amount of any distributions of principal
allocated to CP Component Mortgage Loan REMIC Senior Regular Interest on such
Distribution Date pursuant to Section 4.01(k)(ii) or Section 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 CP 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 CP 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 CP Component Mortgage Loan Senior Balance.
"CP Component Mortgage Loan Senior Component": One of the two CP
Component Mortgage Loan Components, represented by the CP Component Mortgage
Loan REMIC Senior Regular Interest.
"CP Component Mortgage Loan Senior Component Principal Distribution
Amount": As defined in Section 4.01(k)(ii).
"CP Component Mortgage Loan Subordinate Balance": The principal
amount of CP Component Mortgage Loan Subordinate Component outstanding from time
to time, which, on any date, shall equal the Class Principal Balance of the
Class CP Certificates on such date. On each Distribution Date, the CP Component
Mortgage Loan Subordinate Balance shall be reduced by the amount of any
distributions of principal allocated to the Class CP Certificates on such
Distribution Date pursuant to Section 4.01(k)(v) or Section 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 CP Component Mortgage Loan
allocated to the Class CP Certificates on such Distribution Date pursuant to
Section 4.04(a).
"CP Component Mortgage Loan Subordinate Component": The undivided
subordinate ownership interest in the Component Mortgage Loan REMIC represented
by the Class CP Certificates.
"CP Control Appraisal Period": Any period of time during which the
outstanding principal balance of the CP 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 the
original outstanding principal balance of the CP Component Mortgage Loan
Subordinate Component.
"CP Controlling Class": The Class CP Certificates.
"CP Controlling Class Holder": As defined in Section 3.29.
"CP Controlling Holder": With respect to any date of determination
(a) prior to the occurrence of a CP Control Appraisal Period, the CP Controlling
Class Holder, and (b) during the occurrence and the continuance of a CP Control
Appraisal Period, the Directing Certificateholder.
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"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, except with respect to
clause (e) below, any amounts received in respect of the CP Component Mortgage
Loan):
(a) 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;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Loan 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 subclause (d) 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;
(d) 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
(including any amount related to the Loss of Value Payments to the extent
that such amount was transferred into the Certificate Account pursuant to
Section 3.06(f) 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; and
(e) the CP 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, the Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": June 1, 2005 (or, with respect to Loan No. 58868 and
Loan No. 58914, June 9, 2005 and June 6, 2005, respectively).
"Cut-off Date Balance": With respect to any Majority Mortgage Loan
or Companion Loan, the outstanding principal balance of such 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 CP Component Mortgage Loan, the
outstanding principal balance of the CP Component Mortgage Loan Senior Component
as of the Cut-off Date, net of all unpaid payments of principal due in respect
of the CP Component Mortgage Loan on or before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such 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 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 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 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 Loan.
"Defaulted Loan": A Loan (i) that is delinquent 60 days or more in
respect to a Monthly Payment (not including the Balloon Payment) or (ii) 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 Assumed Monthly Payment, (y)
subject to Section 3.21(f), 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.
"Defaulted Mortgage Loan": Any Mortgage Loan that is a Defaulted
Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": 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": 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 Anthracite Capital, Inc.
"Directly Operate": With respect to any REO Property (other than any
REO Property related to the Fashion Show Mall 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).
"Discount Rate" As defined in Section 4.01(c).
"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 Xxxxxxx 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 and the Class CP
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 CP 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 CP Component
Mortgage Loan, if any, for each Distribution Date shall be allocated, first, to
the Class CP 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 CP 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 CP Component Mortgage
Loan REMIC Senior Regular Interest and among the REMIC II Regular Certificates
as described above.
"Distributable CP Component Mortgage Loan Certificate Interest": In
respect of the CP Component Mortgage Loan Components an amount equal to the CP
Component Mortgage Loan Accrued Component Interest in respect of each CP
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 "LaSalle Bank National Association,
as Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2,
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
July 2005.
"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
Xxxxx'x 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 Xxxxx'x 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
Xxxxx'x 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 Non-Investment Grade Sequential
Pay Certificate and Class CP Certificate; 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 Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Excess Interest Rate (the payment of which interest shall,
under the terms of such Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Distribution Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 4.06, which shall be entitled "LaSalle Bank National
Association, in trust for the registered Holders of Banc of America Commercial
Mortgage, Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2,
Excess Interest Distribution Account", and which must be an Eligible Account.
The Excess Interest Distribution Account shall not be an asset of the Component
Mortgage Loan REMIC, REMIC I or REMIC II formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"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(c)(iv) in trust for the Certificateholders, which shall
be entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-2, 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(m).
"Xxxxxx Xxx": The Federal National Mortgage Association or any
successor.
"Fashion Show Mall Intercreditor Agreement": With respect to the
Fashion Show Mall Whole Loan, the Intercreditor and Servicing Agreement dated as
of June 1, 2005 by and between the Fashion Show Mall Pari Passu Note A-1
Noteholder and the holder of the Fashion Show Mall Mortgage Loan relating to the
relative rights of such holders, as the same may be further amended from time to
time in accordance with the terms thereof.
"Fashion Show Mall Master Servicer": The master servicer under the
Fashion Show Mall Pooling Agreement, which as of the Closing Date is Bank of
America, N.A.
"Fashion Show Mall Mortgage Loan": The Mortgage Loan identified as
Loan No. 58620 in the Mortgage Loan Schedule, which, together with the Fashion
Show Mall Pari Passu Note A-1, is secured by a Mortgage on the Fashion Show Mall
Mortgaged Property.
"Fashion Show Mall Mortgaged Property": With respect to the
corresponding Fashion Show Mall Whole Loan, the property that secures such
Fashion Show Mall Whole Loan.
"Fashion Show Mall Nonrecoverable P&I Advance": With respect to the
Fashion Show Mall Mortgage Loan, a "Nonrecoverable P&I Advance" as defined in
the Fashion Show Mall Pooling Agreement.
"Fashion Show Mall Nonrecoverable Servicing Advance": With respect
to the Fashion Show Mall Mortgage Loan, a "Nonrecoverable Servicing Advance" as
defined in the Fashion Show Mall Pooling Agreement.
"Fashion Show Mall Note A-1 Junior Portion": The $40,000,000 portion
of the principal balance (as of the Cut-off Date) of the Fashion Show Mall Pari
Passu Note A-1 that is subordinate under certain circumstances with respect to
payments received with respect to the Fashion Show Mall Whole Loan relative to
the Fashion Show Mall Pari Passu Note A-2 and the remaining $193,143,708 portion
(the "Fashion Show Mall Note A-1 Senior Portion") of the principal balance of
the Fashion Show Mall Pari Passu Note A-1.
"Fashion Show Mall Note A-1 Senior Portion": See the definition of
"Fashion Show Mall Note A-1 Junior Portion".
"Fashion Show Mall Noteholders": With respect to the Fashion Show
Mall Whole Loan, collectively, the holder of the Mortgage Note for the Fashion
Show Mall Mortgage Loan and the Fashion Show Mall Pari Passu Note A-1 Companion
Loan Noteholder.
"Fashion Show Mall Pari Passu Note A-1": With respect to the Fashion
Show Mall Whole Loan, the related Mortgage Note identified as "Note A-1" in the
Fashion Show Mall Intercreditor Agreement, which Note is not included in the
Trust and which Note is pari passu in right of payment to the Fashion Show Mall
Pari Passu Note A-1.
"Fashion Show Mall Pari Passu Note A-1 Companion Loan": The loan
evidenced by the Fashion Show Mall Pari Passu Note A-1.
"Fashion Show Mall Pari Passu Note A-1 Companion Loan Noteholder":
The Fashion Show Mall Pari Passu Note A-1 Noteholder.
"Fashion Show Mall Pari Passu Note A-1 Companion Loan Securities":
For so long as the Fashion Show Mall Pari Passu Note A-2 or a successor REO Loan
with respect to the Fashion Show Mall Pari Passu Note A-2 is part of the
Mortgage Pool, any class of securities backed by the Fashion Show Mall Pari
Passu Note A-1.
"Fashion Show Mall Pari Passu Note A-1 Noteholder": The holder of
the Fashion Show Mall Pari Passu Note A-1.
"Fashion Show Mall Pari Passu Note A-2": With respect to the Fashion
Show Mall Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"Fashion Show Mall Pari Passu Notes": With respect to the Fashion
Show Mall Whole Loan, collectively, the Fashion Show Mall Pari Passu Note A-1
and the Fashion Show Mall Pari Passu Note A-2.
"Fashion Show Mall Pooling Agreement": That certain pooling and
servicing agreement dated as of April 1, 2005 among Banc of America Commercial
Mortgage Inc., as depositor, the Fashion Show Mall Master Servicer, as master
servicer, the Fashion Show Mall Special Servicer, as special servicer, and the
Fashion Show Mall Trustee, as trustee and REMIC administrator.
"Fashion Show Mall Purchase Option Holder": The holder of the
Fashion Show Mall Note A-1 until the outstanding principal balance of the
Fashion Show Mall Note A-1 Junior Portion has been reduced to zero, at which
point there will be no Fashion Show Mall Purchase Option Holder.
"Fashion Show Mall Special Servicer": The special servicer under the
Fashion Show Mall Pooling Agreement, which of as of the Closing Date is X.X.
Xxxxxx Company, Inc.
"Fashion Show Mall Trustee": The trustee under the Fashion Show Mall
Pooling Agreement, which of as of the Closing Date is Xxxxx Fargo Bank, N.A.
"Fashion Show Mall Whole Loan": With respect to Fashion Show Mall
Mortgage Loan, such Mortgage Loan together with the Fashion Show Mall Pari Passu
Note A-1. References herein to the Fashion Show Mall Whole Loan shall be
construed to refer to the aggregate indebtedness under the Fashion Show Mall
Pari Passu Note A-1 and the Fashion Show Mall Pari Passu Note A-2.
"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 Loan or REO Property (other than a Loan
that is paid in full and other than a Loan or REO Property, as the case may be,
that is repurchased or replaced by the Mortgage Loan Seller pursuant to the
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).
"Fiscal Agent": ABN AMRO Bank N.V., in its capacity as Fiscal Agent
of the Trustee, or its successors in interest, or any successor fiscal agent
appointed as herein provided.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global Certificates.
"Grand Rivage Mezzanine Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of February 25, 2005 by and between Bank of
America, N.A. as "Senior Lender" and the Grand Rivage Mezzanine Loan Holder as
"Mezzanine Lender".
"Grand Rivage Mezzanine Loan": That certain mezzanine loan related
to the Grand Rivage Mortgage Loan, which is evidenced by that certain Mezzanine
Loan Agreement, dated as of February 25, 2005 by and between Rivage Mezz, LLC
and the Grand Rivage Mezzanine Loan Holder.
"Grand Rivage Mezzanine Loan Holder": Collectively, LEM Funding XX,
L.P. and LEM Parallel XX, L.P., and their permitted successors or assigns.
"Grand Rivage Mortgage Loan": That certain Mortgage Loan identified
as Loan No. 58797 on the Mortgage Loan Schedule.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and (ii) the Excess Interest Distribution
Account and all funds and assets held from time to time on deposit in the Excess
Interest Distribution Account.
"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.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other U.S. or Canadian federal, state or
local environmental related laws and regulations, and specifically including,
without limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("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.
"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 Fiscal Agent, 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 Fiscal
Agent, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the REMIC Administrator or any Affiliate thereof as
an officer, employee, promoter, placement agent, 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 Fiscal Agent, 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 Fiscal Agent, 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 Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of the Closing
Date is equal to $1,642,344,323 and with respect to the Class XP Certificates,
the initial Class XP Notional Amount thereof as of the Closing Date is equal to
$1,602,012,000.
"Initial Class Principal Balance": With respect to any Class of
Principal Pay 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 Resolution Period": As defined in Section 2.03.
"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.
"Intercreditor Agreements": The Fashion Show Mall Intercreditor
Agreement, the Mission City Corporate Center Intercreditor Agreement and the
Regents Square I & II Intercreditor Agreement.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, the CP 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 the CP 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 Deposit Amount": (a) $56,615.46, with respect to the
Mortgage Loan identified on the Mortgage Loan Schedule as Loan Number 58868,
which amount represents the amount of interest that would have accrued at the
related Mortgage Rate on the Stated Principal Balance as of June 1, 2005 of such
Mortgage Loan had such Mortgage Loan been originated on June 1, 2005, for the
period from and including June 1, 2005 to but excluding the date of origination
of such Mortgage Loan, June 9, 2005; and (b) $3,533.05, with respect to the
Mortgage Loan identified on the Mortgage Loan Schedule as Loan Number 58914,
which amount represents the amount of interest that would have accrued at the
related Mortgage Rate on the Stated Principal Balance as of June 1, 2005 of such
Mortgage Loan had such Mortgage Loan been originated on June 1, 2005, for the
period from and including June 1, 2005 to but excluding the date of origination
of such Mortgage Loan, June 6, 2005.
"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
"LaSalle Bank National Association, as Trustee, in trust for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-2, Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, any Holder of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
"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 Mortgage Loan Seller pursuant to Section 4 of the Mortgage
Loan Purchase Agreement; (iv) such Loan is purchased by the Directing
Certificateholder, the Special Servicer, the CP Controlling Holder (if the
related Defaulted Mortgage Loan is the CP Component Mortgage Loan), any B
Noteholder (if the related Defaulted Mortgage Loan is the Mortgage Loan included
in the related A/B Whole Loan) or the related Mezzanine Loan Holder (if the
related Defaulted Mortgage Loan has a related Mezzanine Loan) pursuant to
Section 3.18(c) or (l); (v) such Loan is purchased by the Special Servicer or
the Master Servicer pursuant to Section 9.01(b); or (vi) in the case of the
Fashion Show Mall Mortgage Loan, such Mortgage Loan is purchased by the Fashion
Show Mall Purchase Option Holder or its designee pursuant to the Fashion Show
Mall Intercreditor Agreement. 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 Section 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 Fashion Show Mall Mortgage Loan) or REO Property (other than any
REO Property related to the Fashion Show Mall Mortgage Loan), 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 or the CP Controlling Holder (if the related Defaulted Mortgage Loan is
the CP Component Mortgage Loan) pursuant to any applicable purchase right set
forth in Section 3.18(c), or (l) 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 CP Controlling Holder (if the related Defaulted
Mortgage Loan is the CP 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 of any Mortgage Loan by the holder of a subordinate note
or a Mezzanine Loan pursuant to a purchase option contained in the related
intercreditor agreement, unless 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, (c) the
purchase option of the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 9.01 or (d) the
repurchase by the Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the Mortgage Loan Purchase and Sale
Agreement and Section 2.03 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 the Mortgage Loan Seller was first notified of its obligation to repurchase
pursuant to Section 4 of the Mortgage Loan Purchase and Sale Agreement and
Section 2.03 or (e) in connection with a Loss of Value Payment by the Mortgage
Loan Seller or (f) the purchase of Fashion Show Mall Mortgage Loan by the
Fashion Show Mall Purchase Option Holder pursuant to Section 3.18(m).
"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
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 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 Fashion Show Mall Purchase
Option Holder pursuant to the Fashion Show Mall Intercreditor Agreement, by any
Controlling Holder pursuant to Section 3.18(l), by any B Noteholder pursuant to
the related Intercreditor Agreement or by the related Mezzanine Loan Holder
pursuant to the related Mezzanine Intercreditor Agreement; (iv) the repurchase
of a Mortgage Loan by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase and Sale Agreement or, in the case of the Fashion Show Mall Mortgage
Loan, by the seller thereof pursuant to any loan purchase agreement; (v) the
substitution of one or more Replacement Mortgage Loans for a Deleted Mortgage
Loan by the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and Sale
Agreement (such cash amounts being any Substitution Shortfall Amounts); (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;
or (vii) except for purposes of Sections 3.11(c), the transfer of any Loss of
Value Payments from the Loss of Value Reserve Fund to the Certificate Account.
"Loan": Any Mortgage Loan or Companion Loan.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related originator and the Borrower, pursuant to
which an account created pursuant to the related 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.
"Loss of Value Payment": As defined in Section 2.03(j).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the Trust, but
not part of the Grantor Trust or any REMIC.
"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": Any of the Mortgage Loans other than the
CP 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 (xvii) 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; provided, further, that in no event shall any amounts be included in
the Master Servicer Remittance Amount to the extent that it is payable to any B
Noteholder pursuant to the related Intercreditor Agreement.
"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 (and, in the case of the Fashion Show Mall
Mortgage Loan, without duplication of the "Master Servicing Fee" payable in
respect of the Fashion Show Mall Whole Loan under the Fashion Show Mall Pooling
Agreement).
"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 minus the Trustee Fee Rate, (b) with
respect to each Fashion Show Mall Pari Passu Note A-2 Companion Loan and any
related REO Loan, the Master Servicing Fee Rate shall be the same as the Master
Servicing Fee Rate for the Fashion Show Mall Mortgage Loan and (c) with respect
to any B Note and any related REO Loan, the Master Servicing Fee Rate shall be
the same as the Master Servicing Fee Rate for the related 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": With respect to the Grand
Rivage Mezzanine Loan, the Grand Rivage Mezzanine Intercreditor Agreement, and,
with respect to any Mortgage Loan with permitted future mezzanine indebtedness,
the mezzanine intercreditor agreement related to such future mezzanine loan.
"Mezzanine Loan": Collectively, the Grand Rivage Mezzanine Loan and,
with respect to any Mortgage Loan with permitted future mezzanine indebtedness,
such future mezzanine loan.
"Mezzanine Loan Holder": With respect to the Grand Rivage Mezzanine
Loan, the Grand Rivage Mezzanine Loan Holder, and, with respect to any Mortgage
Loan with permitted future mezzanine indebtedness, the mezzanine lender under
such future mezzanine loan.
"Mission City Corporate Center A Note": With respect to the Mission
City Corporate Center Mortgage Loan, the related Mortgage Note that is included
in the Trust Fund.
"Mission City Corporate Center B Note": The Mortgage Note related to
the Mission City Corporate Center Whole Loan that is not included in the Trust,
which is subordinated in right of payment to the Mission City Corporate Center A
Note to the extent set forth in the Mission City Corporate Center Intercreditor
Agreement.
"Mission City Corporate Center B Noteholder": The holder of the
Mission City Corporate Center B Note.
"Mission City Corporate Center Control Appraisal Period": The
meaning assigned to "Control Appraisal Event" in the Mission City Corporate
Center Intercreditor Agreement.
"Mission City Corporate Center Intercreditor Agreement": With
respect to the Mission City Corporate Center Whole Loan, the Agreement Among
Noteholders dated as of June 28, 2005 by and between the holder of the Mission
City Corporate Center Mortgage Loan and the Mission City Corporate Center B
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.
"Mission City Corporate Center Mortgage Loan": The Mortgage Loan
identified as Loan No. 58847 in the Mortgage Loan Schedule, which, together with
the Mission City Corporate Center B Note, is secured by a Mortgage on the
Mission City Corporate Center Mortgaged Property.
"Mission City Corporate Center Mortgaged Property": The property
that secures the Mission City Corporate Center Whole Loan.
"Mission City Corporate Center Noteholders": The holder of the
Mortgage Note for the Mission City Corporate Center Mortgage Loan and the
Mission City Corporate Center B Noteholder.
"Mission City Corporate Center Whole Loan": The Mission City
Corporate Center Mortgage Loan together with the Mission City Corporate Center B
Note. References herein to the Mission City Corporate Center Whole Loan shall be
construed to refer to the aggregate indebtedness under the Mission City
Corporate Center A Note and the Mission City Corporate Center B Note.
"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:
(a) 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);
(b) 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
(c) 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 Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum required
monthly payment, exclusive of any Excess Interest and any excess cash flow) 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 Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law); provided that the Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess Interest.
"Moody's": Xxxxx'x 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 Fiscal Agent, 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 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 1.04 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 LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2005-2,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity from the Mortgage Loan Seller
with a copy of such Mortgage Note, and (B) in the case of each
Companion Loan, a copy of the executed Mortgage Note for such
Companion Loan;
(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 LaSalle
Bank National Association, as Trustee for the registered holders of
Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-2 or in blank, in recordable
form (except for any missing recording information with respect to
such Mortgage) and in the case of each Whole Loan, also to LaSalle
Bank National Association 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 LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2005-2 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 Whole Loan, also to LaSalle Bank National Association
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
LaSalle Bank National Association, as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-2 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 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;
(xiv) 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
Mortgage Loan Seller after the Closing Date to correct any errors in
accordance with Section 2.02(e); and
(xv) a copy of the Fashion Show Mall Pooling Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents 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.
With respect to the Fashion Show Mall Mortgage Loan, the preceding
document delivery requirements shall be deemed to be met by the delivery by the
Mortgage Loan Seller of copies of the documents specified above (other than the
Fashion Show Mall Pari Passu Note A-2 (and all intervening endorsements)
evidencing the Fashion Show Mall Mortgage Loan, with respect to which the
originals shall be required), including a copy of the Mortgage securing the
Fashion Show Mall Mortgage Loan.
"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 Agreement": The Mortgage Loan
Purchase and Sale Agreement dated as of June 28, 2005 between Bank of America
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 the basis of
the actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (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;
(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) whether the Mortgage Loan is an ARD Loan; and
(xvi) the applicable grace period.
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 Seller": Bank of America and its 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 any Companion Loan 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 Loan or REO Loan, the
Default Charges referred to in clause fifth of Section 3.27(a) and Section
3.27(c), which are 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(h).
"Net Modification Application Fee": As defined in Section 3.20(h).
"Net Mortgage Rate": With respect to any Majority Mortgage Loan, the
CP Component Mortgage Loan Senior Component or any related 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 CP Component Mortgage Loan Senior Component, a
per annum rate equal to 5.2359% 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 the CP Component Mortgage
Loan Subordinate Component, a per annum rate equal to 7.2696% minus the related
Administrative Fee Rate. For purposes of calculating the Pass-Through Rate for
each Class of Certificates (other than the Class V Certificates and 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.
"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 Fashion Show Mall Mortgage Loan) entered into at the direction of
the Special Servicer on behalf of the Trust (and any related Companion Loan
Noteholder, to the extent of its interest), 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-Investment Grade Sequential Pay Certificates": The Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than the Fashion
Show Mall Mortgage Loan and the CP 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 CP, Class V, 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 or the Fiscal Agent, in its reasonable, good faith
judgment, based on at least an Appraisal conducted within the 12 months
preceding any such determination, will not be ultimately recoverable (together
with Advance Interest accrued thereon) 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 Standard, that any P&I Advance
previously made or proposed to be made is a Nonrecoverable P&I Advance and shall
deliver to the Servicer, the Trustee and the Fiscal Agent notice of such
determination and any such determination shall be conclusive and binding on the
Master Servicer, the Trustee and the Fiscal Agent; and (b) any Fashion Show Mall
Nonrecoverable P&I Advance (including interest thereof calculated in accordance
with the Fashion Show Mall 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 Fashion Show Mall Mortgage Loan shall be made by
the Fashion Show Mall Master Servicer, the Fashion Show Mall Special Servicer or
the Fashion Show Mall Trustee, as the case may be, pursuant to the Fashion Show
Mall Pooling Agreement or by the Trustee pursuant to this Agreement. Any such
determination made by the Fashion Show Mall Master Servicer, the Fashion Show
Mall Special Servicer or the Fashion Show Mall Trustee, as the case may be,
shall be conclusive and binding on the Certificateholders and may, in all cases
and in their sole discretion, be conclusively relied upon by the Trustee and the
Fiscal Agent.
"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, the Trustee or
the Fiscal Agent in its 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
Standard, that any Servicing Advance previously made or proposed to be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master Servicer, the
Trustee, the Fiscal Agent notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer, the
Trustee and the Fiscal Agent; and (b) any Fashion Show Mall Nonrecoverable
Servicing Advance (including interest thereon calculated in accordance with the
Fashion Show Mall Pooling Agreement). The determination as to the recoverability
of any servicing advance previously made or proposed to be made in respect of
the Fashion Show Mall Mortgage Loan shall be made by the Fashion Show Mall
Master Servicer, the Fashion Show Mall Special Servicer or the Fashion Show Mall
Trustee, as the case may be, pursuant to the Fashion Show Mall Pooling
Agreement. Any such determination made by the Fashion Show Mall Master Servicer,
the Fashion Show Mall Special Servicer or the Fashion Show Mall Trustee, as the
case may be, shall be conclusive and binding on the Certificateholders.
"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 the Mortgage Loan Seller, as the case may
be.
"Operating Advisor": With respect to any Whole Loan, the advisor
elected pursuant to Section 3.29 .
"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 Fiscal Agent, 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, the Trustee or the Fiscal Agent 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 the Class XP Pass-Through Rate, respectively. With respect to the Class
CP Certificates, for any Distribution Date, the Class CP 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 CP Certificates or the Class V 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-M Certificates; third, the
Class A-J Certificates; fourth the Class B Certificates; fifth, the Class C
Certificates; sixth, the Class D Certificates; seventh, the Class E
Certificates; eighth, the Class F Certificates; ninth, the Class G Certificates;
tenth, the Class H Certificates; eleventh, the Class J Certificates; twelfth,
the Class K Certificates; thirteenth, the Class L Certificates; fourteenth, the
Class M Certificates; fifteenth, the Class N Certificates; sixteenth, the Class
O Certificates; seventeenth, the Class P Certificates; and last, the respective
Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate or any Class CP 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 Notional Amount, as the case may be, of the relevant Class. With
respect to a Class V Certificate or 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.
"Performing Party": As defined in Section 8.13(c).
"Permitted Investments": Any one or more of the following
obligations:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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
(f) any other obligation or security that 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 to the Mezzanine
Loans, 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 any of 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 any Loan 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.
"Placement Agent": Banc of America Securities LLC.
"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 "Midland Loan Services, Inc., as Special Servicer, for the benefit of
LaSalle Bank National Association, as Trustee, in trust for registered Holders
of Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2005-2, REO Account". Any such account or accounts shall be
an Eligible Account.
"Post CAP Loan": Any Component Mortgage Loan or A/B Whole Loan
following the occurrence and during the continuance of a related Control
Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan (other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its Anticipated
Repayment 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 CP Component Mortgage Loan REMIC Senior Regular Interest, the REMIC I
Regular Interests and the REMIC II Regular Certificates and the Class CP
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage 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 Mortgage Loan's Due
Date, any payment of interest (net of related Master Servicing Fees and Excess
Interest 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 and exclusive of, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess Interest) 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, inclusive. A
Prepayment Interest Shortfall in respect of the CP 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 solely because of the
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
Kansas.
"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 Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts plus
interest on such Nonrecoverable Advances or Workout-Delayed Reimbursement
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, that 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 Pay Certificates": Collectively, the Sequential Pay
Certificates and the Class CP Certificates.
"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
June 15, 2005, relating to the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
A-AB, Class A-5, Class A-M, 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, a price equal
to the unpaid principal balance of the Mortgage Loan (including any Subordinate
Components thereof) as of the date of purchase, together with (a) all accrued
and unpaid interest (excluding, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess 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). With respect to any REO Property (other than any REO Property related
to the Fashion Show Mall 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 (excluding, in the case of an ARD Loan after its
Anticipated Repayment Date, Excess 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 Servicing Advances that are unreimbursed from related
collections on such REO Property, (c) all accrued and unpaid Advance Interest in
respect of related Advances, (d) any Additional Trust Fund Expenses in respect
of such REO Property (other than any REO Property related to the Fashion Show
Mall 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. The
Purchase Price of any Mortgage Loan or REO Property (other than any REO Property
related to the Fashion Show Mall 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 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 that, 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 the basis of a 360-day year consisting
of twelve 30-day months); (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 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 Mortgage Loan Seller effecting the 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 the Class CP Certificates, the Distribution Date in July 10, 2043.
The Class CP Certificates do not have a Rated Final Distribution Date.
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to each Defaulted Loan (other than the
Fashion Show Mall Mortgage Loan) as to which a Final Recovery Determination has
been made, or with respect to any related REO Loan (other than any REO Loan
related to the Fashion Show Mall 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 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 any A/B Whole Loan, Realized Losses shall be deemed
allocated first to the related B Note and then to the related Mortgage Loan.
With respect to the Fashion Show Mall Mortgage Loan, Realized Losses
shall be calculated in accordance with the Fashion Show Mall Pooling Agreement.
Such Realized Losses shall be allocated as provided in the Fashion Show Mall
Pooling Agreement and the Fashion Show Mall 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.
"Regent's Square I & II A Note": With respect to the Regent's Square
I & II Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"Regent's Square I & II B Note": The Mortgage Note related to the
Regent's Square I & II Whole Loan that is not included in the Trust, which is
subordinated in right of payment to the Regent's Square I & II A Note to the
extent set forth in the Regent's Square I & II Intercreditor Agreement.
"Regent's Square I & II B Noteholder": The holder of the Regent's
Square I & II B Note.
"Regent's Square I & II Control Appraisal Period": The meaning
assigned to "Control Appraisal Event" in the Regent's Square I & II
Intercreditor Agreement.
"Regent's Square I & II Intercreditor Agreement": With respect to
the Regent's Square I & II Whole Loan, the Agreement Among Noteholders dated as
of June 28, 2005 by and between the holder of the Regent's Square I & II
Mortgage Loan and the Regent's Square I & II B 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.
"Regent's Square I & II Mortgage Loan": The Mortgage Loan identified
as Loan No. 58848 in the Mortgage Loan Schedule, which, together with the
Regent's Square I & II B Note, is secured by a Mortgage on the Regent's Square I
& II Mortgaged Property.
"Regent's Square I & II Mortgaged Property": The property that
secures the Regent's Square I & II Whole Loan.
"Regent's Square I & II Noteholders": The holder of the Mortgage
Note for the Regent's Square I & II Mortgage Loan and the Regent's Square I & II
B Noteholder.
"Regent's Square I & II Whole Loan": The Regent's Square I & II
Mortgage Loan together with the Regent's Square I & II B Note. References herein
to the Regent's Square I & II Whole Loan shall be construed to refer to the
aggregate indebtedness under the Regent's Square I & II A Note and the Regent's
Square I & II B Note.
"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": LaSalle Bank National Association, 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 (other than Excess Interest) 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 Mortgage Loan Seller with respect to such Mortgage Loans, (ii) the CP
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, 21 and 22 of the Mortgage Loan Purchase and
Sale Agreement with respect to such Mortgage Loans, and (v) such amounts on or
with respect to clauses (i), (ii) 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 Whole Loan, 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 "LaSalle Bank National
Association, as Trustee, in trust for Holders of Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2,
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 CP Certificate or Class V 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 "LaSalle Bank National
Association, as Trustee, in trust for Holders of Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2,
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 real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and 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 Fashion Show Mall 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:
(a) 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);
(b) 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;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) 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
(e) 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 Whole Loan 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 Fashion Show Mall Mortgage Loan) or in the case of
a Whole Loan, any of the Loans comprising such Whole Loan. 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 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 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 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 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, the Trustee and/or
the Fiscal Agent in respect of the related 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, the Trustee and/or the
Fiscal Agent in respect of such Advances, shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee and/or
the Fiscal Agent as the case may be, in respect of an REO Loan. If the Loans
comprising the Mission City Corporate Center Whole 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 Mission City Corporate Center Intercreditor Agreement. If the Loans
comprising the Regents Square I & II Whole 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
Regents Square I & II Intercreditor 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 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; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan (other than, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, accrued and unpaid Excess Interest);
and sixth, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such REO Loan to but not including the date of receipt by or on
behalf of the Trust, in that order. If the Fashion Show Mall Mortgage Loan
becomes an "REO Loan" under the Fashion Show Mall Pooling Agreement, the
treatment of the foregoing amounts with respect to the Fashion Show Mall
Mortgage Loan shall be subject to the terms of the Fashion Show Mall
Intercreditor Agreement and the Fashion Show Mall 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 a related Mortgaged Property securing a Whole Loan, for the
benefit of the Certificateholders and the related Companion Loan Noteholders, as
their interests may appear, and, in the case of the Fashion Show Mall Mortgage
Loan, the beneficial interest of the Trust Fund in the Fashion Show Mall
Mortgaged Property if it is acquired by the Fashion Show Mall Special Servicer
for the benefit of the Certificateholders and the Fashion Show Mall Pari Passu
Noteholders) 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 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: Xxxxx'x ("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
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 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 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 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 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 Global Securities and 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.
"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 Fiscal Agent, 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.
"Xxxxxxxx-Xxxxx 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-4, Class A-AB, Class A-5, Class XC or 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-4
Certificates, Class A-AB Certificates and Class A-5 Certificates outstanding
immediately prior to such Distribution Date exceeds the sum of (a) the aggregate
Stated Principal Balance of the Mortgage Pool (less the CP 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-4 Certificates, Class A-AB
Certificates and Class A-5 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, (xii) CMSA Financial File and (xiii) CMSA Advance
Recovery Report.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.04(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any 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 or Fiscal Agent) 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
(or the Trustee or the Fiscal Agent, if applicable), 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 Loan (other than the Fashion
Show Mall Mortgage Loan) and REO Loan, 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 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 Loans and in the case of a Whole Loan, the related Intercreditor
Agreement, to service and administer the Loans (other than the Fashion Show Mall
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 good faith and 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 Whole Loan, 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 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 make, or 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; or (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.
"Servicing Transfer Event" shall mean, with respect to any Loan
(other than the Fashion Show Mall Mortgage Loan), 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 Loan documents, which failure continues, or the Master
Servicer determines, in its 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 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) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity date
or, if the related Mortgagor has delivered to the Master Servicer, on or
before the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer
period, not to exceed 120 days beyond the related maturity date, during
which the refinancing would occur; 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 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 its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred that may materially impair the value
of the related Mortgaged Property as security for the Loan, which default
has continued 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 U.S. or Canadian 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; 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 shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
A Servicing Transfer Event with respect to any Loan shall 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), (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) above,
if and when such default is cured in the reasonable, good faith judgment
of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated.
"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 or a Class CP Certificate
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 and Non-Investment Grade
Sequential Pay Certificates or an assignment of the voting rights thereof;
provided that the Class Principal Balances, as applicable, of the Investment
Grade Sequential Pay Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Midland Loan Services, Inc., 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 Fashion Show Mall Mortgage Loan) and each REO Loan (other
than any REO Loan related to the Fashion Show Mall 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 and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Loan (other than the Fashion Show
Mall 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 (in the case of a Mortgage Loan), (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.
"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 and, in the case of an ARD Loan, without
regard to its Anticipated Repayment Date.
"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 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 prior to a Liquidation Event or other
liquidation or disposition of the related Mortgage Loan or REO Property (other
than for purposes of computing the Weighted Average Adjusted 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-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O 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).
"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)(i)(B).
"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, REMIC II, the Grantor Trust and the Loss of Value
Reserve Fund.
"Trustee": LaSalle Bank National Association, 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 Mortgage Loan and
related 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 the basis of, as applicable, a 360-day year consisting of twelve
30-day months or the actual number of days elapsed during each calendar month in
a 360-day year) respecting which any related interest payment due on such
Mortgage Loan or deemed to be due on such related 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, and without giving
effect to any Excess Interest that may accrue on any ARD Loan after its
Anticipated Repayment Date.
"Trustee Fee Rate": A rate of 0.0016% per annum.
"Trustee Reports": Each of the CMSA Bond Level File and the CMSA
Collateral Summary File.
"Trustee's Website": The website maintained by the Trustee and
initially located at "xxx.xxxxxxxx.xxx", 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 CP Component
Mortgage Loan REMIC Senior Regular Interest, for any Distribution Date, one
month's interest at the interest rate applicable to the CP Component Mortgage
Loan REMIC Senior Regular Interest for such Distribution Date, accrued on the
Uncertificated Principal Balance thereof 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 the CP Component Mortgage Loan REMIC Senior Regular Interest or
any 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 CP
Component Mortgage Loan REMIC Senior Regular Interest for any Distribution Date,
the Uncertificated Accrued Interest in respect thereof 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 CP Component
Mortgage Loan 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 CP
Component Mortgage Loan Subordinate Component), 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 CP 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 the CP
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 CP Component Mortgage Loan
Senior Balance on the Distribution Date immediately prior to such date of
determination.
"Underwriter": Each of Banc of America Securities LLC, Bear, Xxxxxxx
& Co. Inc. and Deutsche Bank 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 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 that 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 XC and Class XP Certificates based upon
their related Class Notional Amounts). None of the Class V, 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 CP
Component Mortgage Loan, the CP Component Mortgage Loan Senior Component only),
weighted on the basis of the respective Stated Principal Balances (excluding
with respect to the CP Component Mortgage Loan, the Class Principal Balance of
the Class CP Certificates) of such Mortgage Loans and REO Loans outstanding
immediately prior to such Distribution Date.
"Whole Loans": The Mission City Corporate Center Whole Loan and the
Regents Square I & II Whole Loan.
"Whole Loan Custodial Account": With respect to the Whole Loans, the
segregated account or accounts created and maintained by the Master Servicer
pursuant to Section 3.04(e) on behalf of (i) the Mission City Corporate Center
Noteholders, which shall be entitled "Bank of America, N.A., as Master Servicer,
in trust for the Mission City Corporate Center Whole Loan Noteholders, as their
interests may appear", and (ii) the Regents Square I & II Noteholders, which
shall be entitled "Bank of America, N.A., as Master Servicer, in trust for the
Regents Square I & II Whole Loan Noteholders, as their interests may appear".
Any such account shall at all times be an Eligible Account.
"Whole Loan Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the related
Whole Loan 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, 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 related Whole Loan Custodial Account pursuant to any of clauses (ii) through
(xvii) of Section 3.05(f), (v) any Excess Liquidation Proceeds, and (vi) any
amounts deposited into the related Whole Loan 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 Whole Loan
Remittance Amount will be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"Whole Loan REO Account": As defined in Section 3.16(b).
"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 that 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 Loan,
the amount of any Advance made with respect to such Loan on or before the date
such Loan becomes (or, but for the making of three monthly payments under its
modified terms, would then constitute) a Corrected 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 Loan becomes a Corrected 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
Fashion Show Mall 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 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 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 (excluding, in
the case of an ARD Loan after its Anticipated Repayment Date, Excess 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; tenth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and, eleventh, in the case of an ARD
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Excess Interest on such ARD Loan, to but not including the date of receipt.
(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 (excluding, in the
case of an REO Loan that relates to an ARD Loan after its Anticipated Repayment
Date, Excess 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; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan (other than, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, accrued and unpaid Excess Interest);
and sixth, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such REO Loan to but not including the date of receipt by or on
behalf of the Trust, in that order. If the Fashion Show Mall Mortgage Loan
becomes an "REO Loan" under the Fashion Show Mall Pooling Agreement, the
treatment of the foregoing amounts with respect to the Fashion Show Mall
Mortgage Loan shall be subject to the terms of the Fashion Show Mall
Intercreditor Agreement and the Fashion Show Mall Pooling Agreement.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest. 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
related 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) Notwithstanding anything contained herein to the contrary, with
respect to each Mortgage Loan subject to an involuntary prepayment of principal
during a Collection Period, all interest collected during such Collection Period
in connection with such involuntary prepayment of principal that the related
lender would be entitled to retain under the related Loan documents shall be
treated as excess interest and shall be used to offset any shortfalls of
interest for the related Distribution Date resulting from involuntary
prepayments of principal during such Collection Period prior to such shortfalls
of interest being allocated to any Class of Certificates; provided, however,
that any such interest collected in connection with the involuntary prepayment
of the CP Component Mortgage Loan shall be used to offset any shortfalls of
interest for the related Distribution Date allocable to the CP Component
Mortgage Loan prior to such shortfalls of interest being allocated to the Class
CP Certificates. Any such interest not required to offset shortfalls of interest
for the related Distribution Date pursuant to the immediately preceding sentence
shall constitute Additional Master Servicing Compensation.
(f) 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.
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 2005-2". LaSalle Bank National Association 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
Agreement and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes (i) the Mortgage Loans that from time to time are
subject to this Agreement, all interest accrued on the Mortgage Loans on and
after the Cut-off Date and all principal payments received on the Mortgage Loans
after the Cut-off Date (other than principal and interest payments due and
payable on the Mortgage Loans on or before the Cut-off Date, which shall belong
and be promptly remitted to the Mortgage Loan Seller), together with all
documents delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired in
respect of a Mortgage Loan; (iii) such funds or assets that 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 Interest
Distribution Account, the Excess Liquidation Proceeds Account and the REO
Account (if established), (iv) in the case of a Mortgage Loan included in a
Whole Loan, all the right, title and interest of the Depositor in the related
Intercreditor Agreement, and (v) in the case of the Fashion Show Mall Mortgage
Loan, all the right, title and interest of the Depositor in, to and under the
Fashion Show Mall Intercreditor Agreement. The conveyance of the Fashion Show
Mall Mortgage Loan and the right to service the Fashion Show Mall Mortgage Loan
are subject to the terms and conditions of the Fashion Show Mall Pooling
Agreement and the Fashion Show Mall Intercreditor Agreement. In connection with
the transfer and assignment set forth in this Section 2.01, the Depositor shall
make a cash deposit to the Certificate Account in an amount equal to the
Interest Deposit Amount. 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 Seller, pursuant to the Mortgage Loan Purchase and Sale Agreement,
as a purchase of such Mortgage Loans from the Mortgage Loan Seller; 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 the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the 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 Mortgage
Loan acquired by the Depositor from the Mortgage Loan Seller. In addition, with
respect to each Mortgage 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 the 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
the 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. The Depositor shall deliver to the Trustee on
or before the Closing Date a fully executed counterpart of each Mortgage Loan
Purchase and Sale Agreement. If the 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 and
copies 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 Mortgage Loan
Seller delivers such document to the Trustee (or, in the case of originals of
Letters of Credit, to the Master Servicer) within 15 days following the Closing
Date. With respect to the Mortgage Loans so assigned, the Trustee shall provide
a certification within 30 days of 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, the Fiscal
Agent, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by the Mortgage Loan Seller or the Depositor to comply
with the document delivery requirements of the 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 Cut-off 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 June 2005 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 Interest Distribution 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 Agreement, (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 that
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 90 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 and Assignment of Leases 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 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 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 Mortgage 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 Mortgage Loan Seller
to prepare or cause to be prepared promptly, pursuant to the 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 the Mortgage Loan Seller. If
the 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 CP Controlling Holder (if the CP Component Mortgage Loan is
involved and the Trustee has knowledge of the identity of the CP Controlling
Holder), the related Companion Loan Noteholder(s) (if a Whole Loan is involved
and the Trustee has knowledge of such Noteholder(s)), and the Directing
Certificateholder. Such 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 the Mortgage Loan Seller and acquired by the
Depositor from the Mortgage Loan Seller, all as more particularly provided for
in the 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 the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the 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 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 the
Mortgage Loan Seller that relate to the Mortgage Loans transferred by the
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 Seller that
were delivered by or on behalf of the related Mortgagors in connection with the
origination of such Mortgage Loans and that are reasonably required for the
ongoing administration and servicing of such Mortgage 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 the Mortgage
Loan Seller that relate to, and that are required for the ongoing administration
and servicing of, the Mortgage Loans transferred by the Mortgage Loan Seller to
the Depositor. The Master Servicer 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 Mortgage Loan
Seller, the Trustee shall re-assign any rights that the Mortgage Loan Seller had
with respect to representations and warranties made by a third party originator
to the Mortgage Loan Seller under the Mortgage Loan Purchase and Sale Agreement
to the 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, of, 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 Seller 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 (other than the Class V Certificateholders) and the Trustee
as holder of the CP Component Mortgage Loan REMIC Senior Regular Interest and
the REMIC I Regular Interests. To the extent that the Mortgage File for a
Mortgage Loan included in a Whole Loan 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 Fashion
Show Mall Mortgage Loan relates to the Fashion Show Mall Pari Passu Note A-1,
the Trustee shall also hold such Mortgage File for the use and benefit of the
holder of the Fashion Show Mall Pari Passu Note A-1.
(b) On or about the seventy-fifth day following 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 1.04, 2.02(c) and 2.02(d), certify electronically or in
writing (substantially in the form of Exhibit F) to each of the other parties
hereto, the Mortgage Loan Seller, the CP Controlling Holder (if the CP Component
Mortgage Loan is involved and the Trustee has knowledge of the identity of the
CP Controlling Holder), the related Companion Loan Noteholder(s) (if a Whole
Loan is involved and the Trustee has knowledge of such Noteholder(s)), and the
Directing Certificateholder, 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" (without regard to the parenthetical), 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 Mortgage Loan that has two or more related
Borrowers, the state of incorporation of each such Borrower). 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), the Trustee shall every
90 days after the seventy-fifth day following the Closing Date 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), distribute an updated exception report to the recipients
of the above mentioned certification that was submitted to such recipients
substantially in the form of Exhibit F. 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 in the prior sentence.
(c) If the 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) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
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 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) and clause (vii) of the definition of "Mortgage File", have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above. If the Mortgage Loan
Seller is notified of or discovers any error in a Mortgage Loan Checklist, then
the Mortgage Loan Seller shall amend such Mortgage Loan Checklist within 180
days 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 Seller's 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 CP Controlling Holder
(if the CP Component Mortgage Loan is involved and the Trustee has knowledge of
the identity of the CP Controlling Holder), the related Companion Loan
Noteholder(s) (if a Whole Loan is involved and the Trustee has knowledge of such
Noteholder(s)), and the Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the Mortgage Loan Seller
to comply with Section 4(c) of the 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 Seller 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 Mortgage Loan Seller in writing of
such Material Document Defect or Material Breach, as the case may be, and direct
the 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 Mortgage Loan Purchase and Sale
Agreement), at the applicable Purchase Price; provided, however, that if the
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 the
Mortgage Loan Seller 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 the 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, the Directing
Certificateholder, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved and the Trustee has knowledge of the identity of the CP Controlling
Holder), the related Companion Loan Noteholder(s) (if a Whole Loan is involved
and the Trustee has knowledge of such Noteholder(s)), 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), the 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 CP Component Mortgage Loan or the Fashion Show
Mall 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 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
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 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 the 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, and (b) the debt service
coverage ratio on the Closing Date, subject to a floor of 1.25x, and (ii) the
loan-to-value ratio for any related 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 and (b) the loan-to-value ratio on the
Closing Date, subject to a cap of 75%. In the event that both of the conditions
set forth in the preceding sentence would be satisfied, the 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 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, the 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 shall 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 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 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 June 2005 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
Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer
shall direct the Mortgage Loan Seller to amend the 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
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(f) 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
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 and/or the Trustee and/or
the Fiscal Agent pursuant to this Section 2.03(g), shall be payable to each of
them, first, by the Mortgage Loan Seller to the extent the 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 Agreement provides the sole
remedy available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If the 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 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 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 the Mortgage Loan Seller in respect of its obligations under Section 4 of the
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 the 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
Mortgage Loan Seller because the 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 Seller under the Mortgage Loan Purchase and Sale Agreement. 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).
(j) In the event that either pursuant to a settlement agreed to by
the Mortgage Loan Seller and the Special Servicer on behalf of the Trust (it
being understood that the provisions of this Section 2.03(j) shall not
constitute a waiver of the Trust's rights under Section 2.03(h) unless the
Special Servicer, on behalf of the Trust, has agreed to accept a loss of value
payment in lieu of the Trust's rights under Section 2.03(h)) or a judicial
order, the Mortgage Loan Seller makes a cash payment, either as a cure of a
Material Breach or a Material Defect, or in lieu of a repurchase of a Mortgage
Loan on which a Material Breach or a Material Defect exists or is alleged to
exist (each such payment, a "Loss of Value Payment") with respect to such
Mortgage Loan, the amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to such Material Breach or Material Defect, as the case may be, and
such Mortgage Loan Seller or (ii) by judicial decision. Provided that such Loss
of Value Payment is made, the Loss of Value Payment shall serve as the sole
remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Material Breach or Material Defect in lieu of any obligation
of the Mortgage Loan Seller to otherwise cure such Material Breach or Material
Defect or repurchase the affected Mortgage Loan based on such Material Breach or
Material Defect under any circumstances. In the event there is a Loss of Value
Payment made by a Mortgage Loan Seller in accordance with this Section 2.03(j),
the amount of such Loss of Value Payment shall be deposited into the Loss of
Value Reserve Fund to be applied in accordance with Section 3.05(g).
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 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 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 that 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 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 Seller
pursuant to the Mortgage Loan Purchase and Sale Agreement. 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
Agreement, 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 (with respect to the Canadian Loan, the laws of the
Province of Ontario in Canada) 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 or breach, 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 that 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 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.
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 Delaware,
and the Special Servicer is in compliance with the laws of each State
(with respect to the Canadian Loan, the laws of the Province of Ontario in
Canada) 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).
(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) LaSalle Bank National Association, 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 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 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 CP
Certificates; Creation of CP Component Mortgage Loan REMIC Regular Interests and
Component Mortgage Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the CP
Component Mortgage Loan, (a) the Trustee agrees to hold the CP Component
Mortgage Loan included 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 CP Component Mortgage Loan REMIC Senior Regular Interest 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 CP
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 CP Component Mortgage Loan REMIC Senior
Regular Interest and the Class CP 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 holders of the Class CP Certificates and REMIC I
(as holder of the CP Component Mortgage Loan REMIC Senior Regular Interest) 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 CP Certificates, the Component Mortgage
Loan REMIC Residual Interest and the CP Component Mortgage Loan REMIC Senior
Regular Interest, 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.
Section 2.12 Loss of Value Reserve Fund Provisions.
It is the intention of the parties hereto that any Loss of Value
Payments received by the Trust pursuant to Section 2.03(j), together with the
account(s) and/or sub-account(s) in which such amounts are to be held pursuant
to Section 3.04(g), shall collectively constitute an "outside reserve fund" for
federal income tax purposes designated as the "Loss of Value Reserve Fund" and
not an asset of any REMIC or the Grantor Trust. Furthermore, for all federal tax
purposes, the REMIC Administrator and the Special Servicer shall treat any
amounts transferred by a REMIC to the Loss of Value Reserve Fund as amounts
distributed by such REMIC to the applicable Mortgage Loan Seller as beneficial
owner of the Loss of Value Reserve Fund. The Mortgage Loan Seller will be the
beneficial owner of the Loss of Value Reserve Fund for all federal income tax
purposes, and shall be taxable on all income earned thereon. The Trustee, by
execution and delivery hereof, acknowledges the assignment to it of the assets
consisting of the Loss of Value Reserve Fund, including the amounts held
therein, and declares that it or the REMIC Administrator on its behalf holds and
will hold such assets, through the Special Servicer, in accordance with Section
3.04(g), in trust and for the benefit of the Certificateholders, as their
interests may appear.
Section 2.13 Designation of Grantor Trust.
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 Excess Interest to the
Trustee for the benefit of the Holders of the Class V Certificates. The Trustee
acknowledges the assignment to it of the Excess Interest 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 Class V Certificates. Concurrently with the
assignment to the Trustee of the Excess Interest, 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 Class V Certificates in
authorized denominations. The Class V Certificates are hereby designated as
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account, which portion
shall be treated as a grantor trust within the meaning of subpart E, Part I of
subchapter J of the Code.
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 (excluding the Fashion Show Mall Mortgage Loan)
and any REO Properties (excluding any REO Property related to the Fashion Show
Mall Mortgage Loan) that it is obligated to service and administer pursuant to
this Agreement on behalf of the Trustee, and in the best interests and for the
benefit of the Certificateholders (taking into account the subordination of the
CP Subordinate Component), or if a Whole Loan is affected, in the best interest
and for the benefit of the Certificateholders and the related Companion Loan
Noteholders (as a collective whole taking into account the subordination of the
CP Subordinate Component, the Mission City Corporate Center B Note and the
Regents Square I & II B Note, as applicable) 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 Whole Loan, the related Intercreditor 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 Fashion Show Mall Mortgage Loan), and (ii) the Special Servicer shall
service and administer (x) each Loan (other than a Corrected Loan or the Fashion
Show Mall 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 Fashion Show Mall 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 that it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Loans and Corrected Loans (other than the Fashion
Show Mall Mortgage Loan)) and the Special Servicer (with respect to Specially
Serviced Loans and REO Loans (other than the Fashion Show Mall Mortgage Loan or
any related REO 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 such Special
Servicer's, as applicable, 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 of the Mission City
Corporate Center Mortgage Loan, the Regents Square I & II Mortgage Loan and the
Grand Rivage Mortgage Loan is subject to the terms and conditions of the related
Intercreditor Agreement. The parties hereto further recognize (i) the respective
rights and obligations of the "Lenders" under the Fashion Show Mall
Intercreditor Agreement, including with respect to the allocation of collections
on or in respect of the Fashion Show Mall Whole Loan and the making of payments
to the "Lenders" in accordance with Sections 1(a) and 1(b) of the Fashion Show
Mall Intercreditor Agreement, (ii) the respective rights and obligations of the
"Holders" under the Mission City Corporate Center Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of the
Mission City Corporate Center Whole Loan and the making of payments to the
"Holders" in accordance with Sections 3 and 4 of the Mission City Corporate
Center Intercreditor Agreement, and (iii) the respective rights and obligations
of the "Holders" under the Regents Square I & II Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of the
Regents Square I & II Whole Loan and the making of payments to the "Holders" in
accordance with Sections 3 and 4 of the Regents Square I & II Intercreditor
Agreement.
In the event that a Mortgage Loan included in a Whole Loan is no
longer part of the Trust Fund and the servicing and administration of such Whole
Loan is to be governed by a separate servicing agreement and not by this
Agreement, as contemplated by Section 2 of the Fashion Show Mall Intercreditor
Agreement, in the case of the Fashion Show Mall Whole Loan, Section 6 of the
Mission City Corporate Center Intercreditor Agreement, in the case of the
Mission City Corporate Center Whole Loan, and Section 6 of the Regents Square I
& II Intercreditor Agreement, in the case of the Regents Square I & II Whole
Loan, the Master Servicer and, if such Whole 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 Whole Loan and the related Mortgaged Properties 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 Whole Loan shall no longer be part of the Trust Fund, a separate
servicing agreement with respect to such Whole Loan has not been entered into,
then, until such time as a separate servicing agreement is entered into and,
other than respect to any A/B Whole Loan, 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 Whole 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 Intercreditor Agreement, with: (i) such Whole Loan
and the related Mortgaged Property constituting the sole assets thereunder; (ii)
references to the "Trustee", "Trust" and "Certificateholders" (or any sub-group
thereof) being construed to refer to the new "A Noteholder" or its equivalent
under the related Intercreditor Agreement, as applicable; and (iii) references
to the "Directing Certificateholder" being construed to refer to the
"Controlling Holder" or its equivalent under the related Intercreditor
Agreement; provided, however, that from and after the date that such Mortgage
Loan is no longer part of the Trust Fund and until the servicing and
administration of such Whole Loan is to be governed by a separate servicing
agreement and not by this Agreement, and notwithstanding any other provision
hereof, (i) no P&I Advances shall be made by the Master Servicer, Special
Servicer, the Trustee or the Fiscal Agent in respect of such Mortgage Loan, and
(ii) the holders of such Mortgage Loan shall be solely responsible for all fees,
costs, expenses, liabilities, indemnities and other amounts payable or
reimbursable to any Person in respect of such Mortgage Loan and any related REO
Property and in no event shall any such fees, costs, expenses, liabilities,
indemnities, or other amounts be payable out of the Mortgage Pool or any
collections relating thereto (except to the extent accrued and unpaid while such
Mortgage Loan was included as part of the Trust Fund). Subject to any express
provision contained in the related Intercreditor Agreement to the contrary,
nothing herein shall be deemed to override the provisions of an Intercreditor
Agreement with respect to the rights of the Companion Loan Noteholders
thereunder. With respect to the servicing and administration duties and
obligations with respect to the Whole Loans, in the event of any inconsistency
between the provisions of an Intercreditor Agreement and the provisions of this
Agreement, or as to any matter on which such Intercreditor Agreement is silent
or makes reference to this Agreement, this Agreement shall govern.
(f) The parties hereto acknowledge that the Fashion Show Mall
Mortgage Loan is further subject to the servicing under and all other terms and
conditions of the Fashion Show Mall Pooling Agreement. The parties hereto
further recognize the respective rights and obligations of the "Lead Lender" and
the "A-2 Co-Lender" under the Fashion Show Mall Intercreditor Agreement,
including with respect to (i) the allocation of collections on or in respect of
the Fashion Show Mall Mortgage Loan in accordance with Sections 1(b) and 1(c) of
the Fashion Show Mall Intercreditor Agreement, (ii) the making of payments to
the holders of the Fashion Show Mall Note A-1 Senior Portion, the Fashion Show
Mall Note A-1 Junior Portion and the Fashion Show Mall Note A-2 in accordance
with Sections 1(b) and 1(c) of the Fashion Show Mall Intercreditor Agreement,
and (iii) the purchase of the Fashion Show Mall Mortgage Loan by the Fashion
Show Mall Purchase Option Holder or its designee in accordance with Section 5 of
the Fashion Show Mall Intercreditor Agreement.
(g) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Fashion Show Mall Mortgage Loan are limited by and subject to the terms of
the Fashion Show Mall Intercreditor Agreement and the rights of the Fashion Show
Mall Master Servicer and the Fashion Show Mall Special Servicer with respect
thereto under the Fashion Show Mall Pooling Agreement. The Master Servicer shall
use reasonable best efforts consistent with the Servicing Standard to enforce
the rights of the Trustee (as holder of the Fashion Show Mall Mortgage Loan)
under the Fashion Show Mall Intercreditor Agreement and the Fashion Show Mall
Pooling Agreement. The Master Servicer shall take such actions as it shall deem
reasonably necessary to facilitate the servicing of the Fashion Show Mall
Mortgage Loan by the Fashion Show Mall Master Servicer and the Fashion Show Mall
Special Servicer including, but not limited to, delivering appropriate Requests
for Release to the Trustee and Custodian (if any) to deliver any portion of the
related Mortgage File to the Fashion Show Mall Master Servicer or Fashion Show
Mall Special Servicer under the Fashion Show Mall Pooling Agreement. The
Trustee, on behalf of the Certificateholders, hereby assumes the obligations of
the "A-2 Co-Lender" under the Fashion Show Mall Intercreditor Agreement (other
than with respect to the representations and warranties of such X-0 Xx-Xxxxxx);
provided that the Master Servicer, on behalf of the Trustee, will perform any
servicing-related obligations assigned therein to such A-2 Co-Lender.
The parties hereto acknowledge that the Fashion Show Mall Mortgage
Loan is subject to the terms and conditions of the Fashion Show Mall
Intercreditor Agreement and further acknowledge that, pursuant to the Fashion
Show Mall Intercreditor Agreement, (i) the Fashion Show Mall Mortgage Loan is to
be serviced and administered by the Fashion Show Mall Master Servicer in
accordance with the Fashion Show Mall Pooling Agreement, and (ii) in the event
that (A) the Fashion Show Mall Pari Passu Notes are no longer part of the trust
fund established under the Fashion Show Mall Pooling Agreement and (B) the
Fashion Show Mall Mortgage Loan is included in the Trust Fund, then, as set
forth in the Fashion Show Mall Intercreditor Agreement, the Fashion Show Mall
Mortgage Loan shall continue to be serviced in accordance with the applicable
provisions of the Fashion Show Mall Pooling Agreement, with each of the Fashion
Show Mall Master Servicer and the Fashion Show Mall Special Servicer continuing
to act in their respective capacities thereunder (or by such successor master
servicer or special servicer as meets the requirements of the Fashion Show Mall
Pooling Agreement) until such time as a new servicing agreement has been agreed
to by the parties to the Fashion Show Mall Intercreditor Agreement in accordance
with the provisions of such agreement and confirmation has been obtained from
the Rating Agencies that such new servicing agreement would not result in a
downgrade, qualification or withdrawal of the then current ratings of any Class
of Certificates or Class of Fashion Show Mall Pari Passu Note A-1 Companion Loan
Securities then outstanding.
The parties hereto agree and acknowledge that, pursuant to the
Fashion Show Mall Intercreditor Agreement, the Trust Fund shall be responsible
for a proportionate share of reimbursement for any Fashion Show Mall
Nonrecoverable Servicing Advances (together with interest thereon, as set forth
in the Fashion Show Mall Pooling Agreement) and any Additional Trust Fund
Expenses (as defined in the Fashion Show Mall Pooling Agreement) that relates
exclusively to the servicing of the Fashion Show Mall Mortgage Loan. In this
regard,
(i) if the Fashion Show Mall Pooling Agreement permits the Fashion
Show Mall Master Servicer, the Fashion Show Mall Special Servicer or the
Fashion Show Mall Trustee to seek reimbursement for such amounts out of
general collections in the trust fund created pursuant to the Fashion Show
Mall Pooling Agreement, then the Master Servicer, on behalf of the Trust
Fund, shall reimburse such trust fund for the Trust Fund's proportionate
share of such amounts out of general collections in the Trust Fund; and
(ii) if the Fashion Show Mall Pooling Agreement does not permit such
parties to seek reimbursement for such amounts out of general collections
in the trust fund created pursuant to the Fashion Show Mall Pooling
Agreement, then the Master Servicer, on behalf of the Trust Fund, shall
reimburse such parties for the Trust Fund's proportionate share of such
amounts out of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out of
collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the Fashion Show Mall Master Servicer and the Fashion Show
Mall Trustee of the issuance of the Certificates and the securitization of the
Fashion Show Mall Mortgage Loan. Such notice shall include contact information
for the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent and
the Directing Certificateholder, as well as an executed copy of this Agreement;
provided, however, if the Master Servicer has not itself received a final copy
of this Agreement within 21 days of the Closing Date, then the Master Servicer
may forward a working draft and send a final copy as promptly as practicable
after its receipt of the same.
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) 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, provided that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Loan is, in the good faith and reasonable judgment of the Special Servicer,
and without regard to such Excess Interest, also necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
Loan have been paid, the payment of such Excess Interest has not been forgiven
in accordance with Section 3.20 and, in the good faith and reasonable judgment
of the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest.
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.
(ii) 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 Mortgage
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.
(iii) Within 60 days after the Closing Date as to each 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 a Whole 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 Intercreditor 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
Fashion Show Mall 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 related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, 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 into 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
Fashion Show Mall 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 and for all Loans
(other than the Fashion Show Mall Mortgage Loan), 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 Whole
Loan is involved, on behalf of the related Companion Loan Noteholders, to
enforce any obligations of the related Mortgagor under such Loan.
The parties hereto acknowledge that, pursuant to the Fashion Show
Mall Pooling Agreement, the Fashion Show Mall Master Servicer is obligated to
make advances with respect to the Fashion Show Mall Mortgage Loan. The Fashion
Show Mall Master Servicer shall be entitled to reimbursement for Fashion Show
Mall Nonrecoverable P&I Advances and Fashion Show Mall Nonrecoverable Servicing
Advances (with, in each case, any accrued and unpaid interest thereon provided
for under the Fashion Show Mall Pooling Agreement) in the manner set forth in
the Fashion Show Mall Pooling Agreement and the Fashion Show Mall 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 Fashion Show Mall
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 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 (other than the
Fashion Show Mall 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 CP Controlling Holder (if the CP Component Mortgage Loan is
involved), the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), and the Directing Certificateholder 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, the CP Controlling Holder (if the CP
Component Mortgage Loan is involved), the related Companion Loan Noteholder(s)
(if a Whole Loan is involved), and the Directing Certificateholder 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 (in the form attached hereto as Exhibit R) to the Fashion Show
Mall Master Servicer stating that, as of the Closing Date, the Trustee is the
holder of the Fashion Show Mall Mortgage Loan and directing the Fashion Show
Mall 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 Fashion Show Mall Mortgage Loan under the Fashion Show Mall
Intercreditor Agreement and the Fashion Show Mall Pooling Agreement. The Master
Servicer shall, on the day of receipt thereof, deposit into the Certificate
Account all amounts received with respect to the Fashion Show Mall Mortgage
Loan, the Fashion Show Mall 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 Interest Distribution Account, Excess Liquidation
Proceeds Account and Whole Loan 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 Fashion Show Mall Mortgage Loan, to the
extent received pursuant to the Fashion Show Mall 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
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 and Excess 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;
(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;
(xi) the Interest Deposit Amount received from the Depositor
pursuant to Section 2.01(b); and
(xii) any Loss of Value Payments, as set forth in Section 3.05(g);
provided that any amounts described above (other than clause (v) above) that
relate to a Whole Loan 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 Intercreditor
Agreement as a Specially Serviced Loan pursuant to Section 3.18) shall be
deposited into the related Whole Loan 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 (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 Whole Loan) 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 CP Component Mortgage Loan REMIC Senior
Regular Interest and 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) 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
(other than Excess Interest, if any) shall, on each Distribution Date, be deemed
to be deposited into the REMIC I Distribution Account in respect of such
Mortgage Loans. All such amounts deposited in respect of such Excess Interest
shall be deemed to be deposited into the Excess Interest Distribution Account.
All such amounts deposited in respect of the CP Component Mortgage
Loan (other than Excess Interest, if any) 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 CP Component Mortgage Loan REMIC Senior Regular Interest pursuant to
Sections 4.01(k)(i), (ii) and (iii), distributed to the Class CP Certificates in
respect of the CP Component Mortgage Loan Subordinate Component pursuant to
Sections 4.01(k)(iv) to (vi) and distributed to the Class R-I Certificates in
respect of the Component Mortgage Loan REMIC Residual Interest pursuant to
Section 4.01(k)(vii). All such amounts deposited in respect of such Excess
Interest shall be deemed to be deposited into the Excess Interest Distribution
Account.
(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 CP Certificates and the Class R-I Certificateholders in
respect of the Component Mortgage Loan REMIC Residual Interest). 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) 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 REMIC II
Certificateholders. 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) 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 CP
Component Mortgage Loan REMIC Senior Regular Interest and 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 CP 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.
(v) The Trustee shall establish and maintain one or more accounts or
sub-accounts (collectively, the "Excess Interest Distribution Account"),
in the name of the Trustee, in trust for the benefit of the Class V
Certificateholders. Each account that constitutes the Excess Interest
Distribution 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 Interest
Distribution Account all Excess Interest received during the Collection
Period ending on the Business Day prior to such Master Servicer Remittance
Date.
(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, the Excess Interest 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, the Excess
Interest Distribution Account and the Excess Liquidation Proceeds Account prior
to any change thereof. Funds in the Excess Interest Distribution Account, if
established, and the Excess Liquidation Proceeds Account, if established, shall
remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Whole Loan 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 Whole Loan) 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
Whole Loan on or before the Cut-off Date, which payments shall be held as
provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Whole Loan;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Whole Loan;
(iii) all Prepayment Premiums received in respect of such Whole
Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Whole Loan;
(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 Whole Loan Custodial
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
with respect to such Whole Loan 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 Whole Loan
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 Whole Loan 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 Whole Loan 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 Whole Loan Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Whole Loan 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 Whole 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 applicable Whole Loan
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 Whole Loan) shall
be deposited by the Special Servicer into the related REO Account and remitted
to the Master Servicer for deposit into the related Whole Loan 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 Whole Loan Custodial 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 Trustee, the Special Servicer, the
Depositor, the CP Controlling Holder (if the CP Component Mortgage Loan is
involved), and the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), of the location of each Whole Loan Custodial Account as of the
Closing Date and of the new location of a Whole Loan 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.
(g) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(j), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Whole Loan 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 1:00 p.m. (New York time)
for deposit into the Distribution Account and the Excess Interest
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, the Trustee or the Fiscal
Agent, as applicable, for xxxxxxxxxxxx X&X Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's and the
Fiscal Agent'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 Whole Loan to the extent such payment was received
out of collections from the related Whole Loan 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 Whole Loan to the extent such
payment was received out of collections from the related Whole Loan
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 Whole Loan to the extent
such payment was received out of collections from the related Whole Loan
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 the Fashion Show Mall Mortgage Loan)
and to pay to the Fashion Show Mall 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 Fashion Show Mall 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) and to pay to the Fashion Show
Mall 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 workout fees and liquidation fees in respect of the Fashion Show
Mall Mortgage Loan;
(vi) to reimburse itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Trustee's, the Fiscal Agent's or the Special Servicer'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 Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was received out of collections from the related Whole Loan
Custodial Account) as to which such Servicing Advance was made;
(vii) (A) to reimburse the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent, as applicable, out of general collections
on the Mortgage Loans and any REO Properties (exclusive of the Fashion
Show Mall Mortgage Loan), for any unreimbursed Advances made thereby that
have been determined to be Nonrecoverable Advances (provided, that amounts
may be withdrawn over time as hereinafter provided) or, subject to the
limitations contained in the following paragraphs of the Section 3.05(a),
for any Workout-Delayed Reimbursement Amounts; and (B) to reimburse the
Fashion Show Mall Master Servicer, the Fashion Show Mall Special Servicer,
the Fashion Show Mall Trustee, the Trustee or the Fiscal Agent, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, the Trust Fund's pro rata share of any Fashion Show Mall
Nonrecoverable Servicing Advance or P&I Advance;
(viii) to pay the Trustee, the Fiscal Agent, 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, the Trustee and the Fiscal Agent, 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, the Trustee or the Fiscal
Agent, 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 Whole Loan or any REO Property securing a Whole Loan to the
extent such payment was received out of collections from the related Whole
Loan 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 Fashion Show Mall Master Servicer, the
Fashion Show Mall Special Servicer and the Fashion Show Mall Trustee, as
applicable, for the Trust Fund's pro rata share of any Fashion Show Mall
Nonrecoverable Servicing Advance, to pay to the Fashion Show Mall Master
Servicer, the Fashion Show Mall Special Servicer and the Fashion Show Mall
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 such Fashion Show Mall Nonrecoverable Servicing Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan) 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 Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was received out of collections from the
related Whole Loan 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 Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was received out
of collections from the related Whole Loan 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 Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was received out
of collections from the related Whole Loan 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 Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was received out of collections from the related Whole Loan
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, the Fiscal Agent, 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
Whole Loan or any REO Property securing a Whole Loan to the extent such
payment was received out of collections from the related Whole Loan
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 Whole Loan or any REO Property securing a Whole Loan), 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, the Fiscal Agent 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 Whole Loan to
the extent such payment was received out of collections from the related
Whole Loan 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 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 Whole Loan), 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 Whole Loan) to the Excess Liquidation Proceeds Account in accordance
with Section 3.04(c)(iv);
(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 Fiscal Agent; second, to the
Trustee; and third, 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 CP Component Mortgage Loan shall be
allocated to the Component Mortgage Loan REMIC (in respect of the CP Component
Mortgage Loan); 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 (xix) above sufficient to determine the
amounts attributable to the Component Mortgage Loan REMIC (with respect to the
CP 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 recalculate 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, the Trustee
or the Fiscal Agent, 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, or the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent,
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, the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent (as
applicable) and the Directing Certificateholder (with each such applicable party
having the right to agree or disagree 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,
the Trustee or the Fiscal Agent, 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, the Trustee or the Fiscal Agent, 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
or Fiscal Agent, if applicable) determines in its sole discretion that waiting
three weeks after such a notice could jeopardize the Master Servicer's or the
Special Servicer's (or Trustee's or Fiscal Agent'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
or Fiscal Agent, 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 or Fiscal Agent, 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 or Fiscal Agent, 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, the Trustee or the
Fiscal Agent, 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.
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 (net of any collections of principal applied to
reimbursement of Nonrecoverable Advances or interest thereon); 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 Fashion Show Mall 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, the Trustee or the Fiscal Agent,
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, the Trustee or the Fiscal Agent, as
applicable, to choose voluntarily to seek reimbursement of Workout-Delayed
Reimbursement Amounts solely from collections of principal. The Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, 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, the Trustee or the
Fiscal Agent, 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.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the related Whole Loan Custodial Account shall be without duplication.
(b) The Trustee may, from time to time, make withdrawals from the
Component Mortgage Loan REMIC Distribution Account and the 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 the CP Component Mortgage Loan REMIC Senior
Regular Interest and to make distributions to the Class CP Certificates
and the Class R-I Certificates pursuant to Sections 4.01(k) or 9.01, 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); and
(vii) to transfer from the Component Mortgage Loan REMIC
Distribution Account (in respect of the CP 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.
(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 V
Certificates, the Class R-I Certificates and the Class CP 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 Whole Loan 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 Whole Loan 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 Sections 3 and 4 of the Mission City Corporate
Center Intercreditor Agreement and Sections 3 and 4 of the Regents Square
I & II Intercreditor Agreement, such remittances to the Trustee to be made
into the Distribution Account;
(ii) to reimburse the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, for xxxxxxxxxxxx X&X Advances made with respect to
such Whole Loan or, in the case of the Trustee, with respect to the
related Mortgage Loan (in each case, with its own funds), the Master
Servicer's, the Trustee's and the Fiscal Agent'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 Whole Loan 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 Whole Loan and related REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Whole Loan or REO Loan being payable from, and limited to,
amounts received on or in respect of such Whole 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
such Whole Loan and related REO Properties, earned and unpaid Special
Servicing Fees in respect of such Whole Loan 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, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances with
respect to such Whole Loan or related REO Property made thereby (in each
case, with its own funds), the Master Servicer's, the Special Servicer's,
the Trustee's and the Fiscal Agent'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 Whole Loan 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 Whole Loan 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 Whole Loan, 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,
the Trustee or the Fiscal Agent, 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 such Whole Loan Custodial Account is
not sufficient to make such payment pursuant to clause (viii) above, to
pay the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, out of general collections on such Whole Loan
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 Whole Loan and that, if paid from a
source other than Default Charges collected on such Whole Loan, would
constitute an Additional Trust Fund Expense, such payment to be made out
of Default Charges collected on such Whole Loan, 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 with
respect to such Whole Loan from funds collected on such Whole Loan that
are on deposit in such Whole Loan Custodial Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to such Whole Loan 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
Whole Loan or REO Property, as the case may be, and then, out of general
collections on such Whole Loan or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Whole Loan and REO Property, certain servicing
expenses with respect to such Whole Loan that would, if advanced,
constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Whole Loan 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 Whole Loan 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 Whole Loan;
(xvi) [Reserved];
(xvii) to pay, out of general collections on such Whole Loan 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 Whole Loan;
(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 Whole Loan, 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 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 Whole Loan, 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, to the extent payable in respect of such Mortgage Loan;
(xx) to transfer Excess Liquidation Proceeds related to the Mortgage
Loan included in such Whole Loan to the Excess Liquidation Proceeds
Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Whole Loan
Custodial Account in error; and
(xxii) to clear and terminate such Whole Loan Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Whole Loan Custodial Account at any
particular time (after withdrawing any portion of such amounts deposited into
such Whole Loan 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
Whole Loan 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 Whole Loan Custodial
Account, then (following any withdrawals made from such Whole Loan 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 Whole Loan or REO Property out of such Whole Loan
Custodial Account pursuant to any of clauses (ii), (vi) and (vii) above, and any
payments of interest thereon out of such Whole Loan 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 Fiscal Agent; second, to the Trustee; and third, pro rata, to the Master
Servicer and Special Servicer.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under (i) the Mission City
Corporate Center Intercreditor Agreement to remit funds thereunder then due and
owing to the Mission City Corporate Center B Noteholder in the time frames set
forth therein, and (ii) the Regents Square I & II Intercreditor Agreement to
remit funds thereunder then due and owing to the Regents Square I & II B
Noteholder in the time frames set forth therein.
The Master Servicer and the Special Servicer, as applicable, shall
notify the Trustee in writing of any transfer of a Companion Loan, specifically
identifying the name, address and contact information of the transferee if the
Master Servicer and the Special Servicer, as applicable, has actual knowledge of
such transferee's name, address and contact information.
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.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, in accordance with Section 3.05(a), for any
Nonrecoverable Advance made by such party with respect to such Loan or any
related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse the
Trust for the prior payment of, any expense relating to such Loan or any
related REO Property that constitutes or, if not paid out of such Loss of
Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Loan or any successor REO Loan with respect thereto;
(iv) following the occurrence of a liquidation event or other
disposition with respect to such Mortgage Loan or any related REO
Property, to cover the items contemplated by the immediately preceding
clauses (i) through (iii) in respect of any other Loan or REO Loan; and
(v) on the final Distribution Date after all distributions have been
made as set forth in clauses (i) through (iv) above, to the Mortgage Loan
Seller to offset any Realized Losses (net of any amount contributed by
such Mortgage Loan Seller that was used pursuant to clauses (i) through
(iv)).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO Loan
with respect thereto for which such Loss of Value Payments were received; and
any Loss of Value Payments transferred to the Certificate Account pursuant to
clause (iv) of the prior paragraph shall, except for purposes of Section
3.11(c), be deemed to constitute Liquidation Proceeds received by the Trust in
respect of the Loan or REO Loan for which such Loss of Value Payments are being
transferred to the Certificate Account to cover an item contemplated by clauses
(i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular Interest
Certificates in accordance with Section 9.01, all interest then payable thereto,
together with the aggregate Certificate Balance of, and all loss reimbursement
amounts for such final Distribution Date in respect of, the respective Classes
of the REMIC II Regular Interest Certificates, and otherwise shall be
distributable to the Holders of the Residual Certificates on the final
Distribution Date.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Component Mortgage Loan REMIC Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess Liquidation Proceeds
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 Whole Loan 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, the Excess Interest 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
Whole Loan, the related Companion Loan 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 Whole Loan 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 Whole Loan, 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, the REMIC II Distribution Account and the Excess Interest 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 Whole Loan 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 Component Mortgage Loan REMIC Distribution
Account, the Excess Interest Distribution Account, the Excess Liquidation
Proceeds 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 Whole Loan
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 Interest Reserve Account, the Component Mortgage Loan
REMIC Distribution Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds 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 Whole Loan 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 Interest Reserve Account, the
Component Mortgage Loan REMIC Distribution Account, the Excess Interest
Distribution Account, the Excess Liquidation Proceeds 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 Interest Reserve Account, the Component Mortgage Loan REMIC
Distribution Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account, the REMIC I Distribution Account and the REMIC II
Distribution Account; and to the extent that it 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 Loan (other than the Fashion Show Mall
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 and, prior to the date such existing insurance expires or is required
to be renewed, the Master Servicer may, to the extent consistent with the
Servicing Standard, take 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 Xxxxx'x and "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 Whole Loan the related Companion Loan
Noteholder(s)) as the insured, with loss payable to the Special Servicer on
behalf of the Trustee (and in the case of a Whole Loan the related Companion
Loan Noteholder(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 Whole Loan is involved, the
related Whole Loan 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 Whole Loan 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 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 Master 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 Master 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 unless the Stated Principal Balance
of the Loan is greater than $20,000,000. If the Stated Principal Balance of the
Loan is greater than $20,000,000, then the Master Servicer must determine that
the circumstances in both clauses (1) and (2) of the immediately preceding
sentence apply prior to waiving the Mortgagor's requirement to procure insurance
with respect to any Covered Risks. 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 of such failure of the Special Servicer to
respond to such request. If the Directing Certificateholder 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; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. 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. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Loan, if a Loan
is secured by multiple Mortgaged Properties, then the amount subject to the
$20,000,000 threshold shall be the portion of the Stated Principal Balance of
the related Loan pro rated based on an individual Mortgaged Property's appraised
value as a percentage of the total appraised value of all of the related
Mortgaged Properties.
(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 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 Xxxxx'x and "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(a), 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 that 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 and the Certificateholders and, in the case of a Whole Loan,
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
Xxxxx'x and "A" from S&P, a fidelity bond in such form and amount as would
permit it to be a qualified Xxxxxx Xxx seller-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 Xxxxx'x and "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 Xxxxxx Xxx
seller-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 Xxxxx'x and "A" from 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 Fashion Show Mall 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 (other than the Fashion Show
Mall Mortgage 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 clauses (a)(i)(3)
above have been satisfied.
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), 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 (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) 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 all information reasonably requested
by the Special Servicer and the Special Servicer shall not have responded
in writing, via fax or e mail within 15 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 (a) any Non-Partitioned Loan and/or a Post
CAP Loan that is a Performing 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 CP Component Mortgage Loan or any A/B
Whole Loan for which a related Control Appraisal Period 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 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
Special Servicer, which consent shall not be given without the Special
Servicer first obtaining the consent of the related Controlling Holder,
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 related Controlling Holder in the case of the
CP Component Mortgage Loan. Consent by a Controlling Holder shall be
deemed given if the Master Servicer or Special Servicer, as applicable,
shall have provided such Controlling Holder written notice of the matter
together with all of the information set forth in the last sentence of the
first paragraph of clause (ii) above and such Controlling Holder shall not
have responded in writing, via fax or email within ten Business Days of
such request.
(iv) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan with an outstanding principal balance of
greater than $5,000,000:
(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.
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding
principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage 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 Mortgage 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.
(vii) 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 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.
Section 3.09 Realization Upon Defaulted 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
Fashion Show Mall 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; provided that neither the Master
Servicer nor the Special Servicer shall, with respect to any ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Excess Interest (other than the making of requests for its
collection) unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Loan is, in the good faith and
reasonable judgment of the Special Servicer, and without regard to such Excess
Interest, also necessary, appropriate and consistent with the Servicing
Standard, or (ii) all other amounts due under such Loan have been paid, the
payment of such Excess Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. 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 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 Whole Loan, 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 (and in the case of a Mortgaged Property securing a
Whole Loan, the related Companion Loan Noteholders) to 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 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 Whole Loan, 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 Whole Loan, 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 (taking into account the subordination of the CP
Subordinate Component), or if a Whole Loan is affected, to the
Certificateholders and the related Companion Loan Noteholders (as a
collective whole taking into account the subordination of the CP
Subordinate Component, the Mission City Corporate Center B Note and the
Regents Square I & II B Note, as applicable), 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 CP Controlling Holder (if the CP
Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole 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 that, 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 Whole Loan is involved, out of the related Whole Loan 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 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 Whole Loan 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 CP Controlling Holder (if the CP Component Mortgage Loan is
involved), the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), and the Directing Certificateholder 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 2006, 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
Fashion Show Mall Mortgage Loan) and REO Properties (other than REO Properties
related to the Fashion Show Mall 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 Fashion Show Mall 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 Fashion Show Mall
Mortgage Loan) or REO Property (other than any REO Property related to the
Fashion Show Mall Mortgage Loan), it shall promptly notify the Trustee, the
Master Servicer, the Directing Certificateholder, the CP Controlling Holder (if
the CP Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole 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 CP Controlling Holder (if the CP Component Mortgage Loan is
involved), and the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), and request delivery of the related Mortgage File by delivering
thereto a Request for Release in the form of Exhibit D that 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 that 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 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 Whole
Loan is involved, the related Whole Loan 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 that are required
to be deposited into the Certificate Account pursuant to Section 3.04(a) or, if
a Whole Loan is involved, into the related Whole Loan 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, or if a Whole Loan is involved, against the related Companion Loan
Noteholders, the Master Servicer or the Special Servicer; 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 Whole Loan is involved, such documents and pleadings shall also be
delivered by the Special Servicer to the related Companion Loan Noteholder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if
applicable, the Companion Loan Noteholders, to 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 (i) the
Master Servicer shall not be liable for such enforcement by the Special Servicer
and (ii) the Special Servicer shall not be liable for such enforcement by the
Master Servicer. If from time to time, pursuant to the terms of the Fashion Show
Mall Intercreditor Agreement and the Fashion Show Mall Pooling Agreement, and as
appropriate for enforcing the terms of the Fashion Show Mall Mortgage Loan, the
Fashion Show Mall Master Servicer requests delivery to it of the original
Mortgage Note for the Fashion Show Mall Mortgage Loan, then the Trustee shall
release or cause the release of such original Mortgage Note to the Fashion Show
Mall Master Servicer or its designee.
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 Loan (including each Specially Serviced Loan) and each related REO Loan. As
to each such Loan and REO Loan, for each calendar month (commencing with June
2005) or any applicable portion thereof, the Master Servicing Fee shall accrue
at the related Master Servicing Fee Rate on the same principal amount, and
without giving effect to any Excess Interest that may accrue on any ARD Loan
after its Anticipated Repayment Date, as interest accrues from time to time
during such calendar month (or portion thereof) on such 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 Loan or REO Loan, as the case may be.
The Master Servicing Fee with respect to any Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Master Servicing Fees
earned with respect to any such 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 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. 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.
In the case of the CP Component Mortgage Loan, the Master Servicing
Fee with respect to the CP Component Mortgage Loan Senior Component, the CP
Component Mortgage Loan Subordinate Component, and additional servicing
compensation with respect to the CP Component Mortgage Loan shall be an expense
of the Component Mortgage Loan REMIC.
(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 Noteholder under any Intercreditor 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 Fashion Show Mall 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 Fashion Show
Mall Mortgage Loan);
(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 Fashion Show Mall Mortgage Loan) for
which Special Servicer approval is required;
(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 Fashion Show Mall Mortgage Loan) and, in
the case of checks returned for insufficient funds, with respect to a
Specially Serviced Loan (other than the Fashion Show Mall Mortgage Loan);
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans (other than the Fashion Show Mall 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 the Loans.
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 Fashion Show Mall
Mortgage Loan) and each REO Loan (other than any REO Loan related to the Fashion
Show Mall Mortgage Loan) for which it is responsible. As to each Specially
Serviced Loan and REO 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 Whole Loan is involved, first out of funds on deposit in
the related Whole Loan 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
Corrected Loan (other than the Fashion Show Mall 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 Excess 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 (other than the Fashion Show Mall Mortgage Loan) or
REO Loan (other than any REO Loan related to the Fashion Show Mall Mortgage
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. 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 or the CP Controlling Holder (if the related Defaulted
Mortgage Loan is the CP Component Mortgage Loan) pursuant to any applicable
purchase right set forth in Section 3.18(c) or (l) 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 is (i) 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 Mortgage Loan or (ii) by the CP Controlling Holder (if
the related Defaulted Mortgage Loan is the CP 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
Mortgage Loan, (b) the purchase of any Mortgage Loan by the holder of a
subordinate note or a Mezzanine Loan pursuant to a purchase option contained in
the related intercreditor agreement unless 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 Mortgage Loan, (c) the
purchase option of the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 9.01, or (d) the
repurchase by the Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the Mortgage Loan Purchase and Sale
Agreement and Section 2.03 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 the Mortgage Loan Seller was first notified of its obligation to so
repurchase. As to each such Specially Serviced Loan or REO Loan, the Liquidation
Fee shall be payable out of, and shall be calculated by application of the
Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges, Excess Interest or a Prepayment Premium). The
Liquidation Fee with respect to any such Specially Serviced Loan will not be
payable if such Loan becomes a Corrected Loan.
In the case of the CP Component Mortgage Loan, a Liquidation Fee
and/or Workout Fee with respect to the CP Component Mortgage Loan Senior
Component and the CP Component Mortgage Loan Subordinate Component shall be an
expense of the Component Mortgage Loan REMIC.
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 Noteholder under any Intercreditor 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 or an REO 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 or an REO 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 Fashion Show Mall
Mortgage Loan);
(iv) 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); and
(v) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on the Loans.
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 Whole Loan is involved, in the related Whole Loan
Custodial Account.
In the case of the CP Component Mortgage Loan, amounts described in
Sections 3.11(d)(i)-(v) with respect to the CP Component Mortgage Loan Senior
Component and the CP Component Mortgage Loan Subordinate Component 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 Whole Loan 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 (the Special Servicer (if it is not the non-defaulting party) may also
give notice to the Master Servicer if it has actual knowledge of such failure).
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))
the Trustee shall make such Advance. To the extent the Trustee fails to make
such Servicing Advance, the Fiscal Agent will make such Advance. The making of
such Advance by the Fiscal Agent will cure the Trustee's failure to make such
Servicing 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, the Trustee and the
Fiscal Agent 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 Whole Loan or related REO Property is involved, on
deposit in the related Whole Loan Custodial Account. The Master Servicer shall
reimburse itself, the Special Servicer, the Trustee or the Fiscal Agent, 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 Whole Loan is involved, are deposited into the related Whole
Loan 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, the Trustee or the Fiscal Agent
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, the Trustee and the Fiscal Agent notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer, the Trustee and the Fiscal Agent. 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, the Trustee (unless
it is the Person making such determination) and, if applicable, the Fiscal Agent
(unless it is the Person making such determination), and the Trustee shall
provide a copy thereof to the Directing Certificateholder, the CP Controlling
Holder (if the CP Component Mortgage Loan is involved and the Trustee has
knowledge of the identity of the CP Controlling Holder), the related Companion
Loan Noteholder(s) (if a Whole Loan is involved and the Trustee has knowledge of
such Noteholder(s)), 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 and
the Fiscal Agent 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 Whole Loan is involved, the related Whole
Loan 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 (taking into account
the subordination of the CP Subordinate Component), or if a Whole Loan is
affected, the interests of the Certificateholders and the related Companion Loan
Noteholders (as a collective whole taking into account the subordination of the
CP Subordinate Component, the Mission City Corporate Center B Note and the
Regents Square I & II B Note, as applicable), 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 CP Controlling
Holder (if the CP Component Mortgage Loan is involved and the Trustee has
knowledge of the identity of the CP Controlling Holder), and the related
Companion Loan Noteholder(s) (if a Whole Loan is involved and the Trustee has
knowledge of such Noteholder(s)), 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 (other than the Fashion
Show Mall Mortgage Loan) becomes a Specially Serviced 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 (other than the Fashion Show Mall Mortgage 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 2006, the Master
Servicer shall at its expense perform or cause to be performed an inspection of
each Mortgaged Property (other than the Fashion Show Mall Mortgaged Property) at
least once per calendar year (or, in the case of each 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. The costs of each such inspection incurred by the Special Servicer
shall be reimbursable first from Default Charges and then, to the extent such
Default Charges are insufficient, 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 Seller, the Directing
Certificateholder, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved and the Trustee has knowledge of the identity of the CP Controlling
Holder), the related Companion Loan Noteholder(s) (if a Whole Loan is involved
and the Trustee has knowledge of such Noteholder(s)), 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 March
2006, the Special Servicer, in the case of any Specially Serviced Loan (other
than the Fashion Show Mall Mortgage Loan), and the Master Servicer, in the case
of each Performing 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 (other than any REO Property related to the
Fashion Show Mall Mortgage Loan) 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 Fashion Show
Mall 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 Fashion Show Mall Mortgaged Property) or REO Property (other than any
REO Property related to the Fashion Show Mall Mortgage Loan), 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 ten 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 Fashion Show Mall 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, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved and the Trustee has knowledge of the identity of the CP Controlling
Holder), the related Companion Loan Noteholder(s) (if a Whole Loan is involved
and the Trustee has knowledge of such Noteholder(s)), 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 CP Controlling Holder upon its request (if the CP
Component Mortgage Loan is involved), any Companion Loan Noteholder upon its
request (if the related Whole 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 CP Controlling Holder (if the CP Component
Mortgage Loan is involved), the related Companion Loan Noteholder(s) (if a Whole
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 CMSA 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 CP Controlling Holder (if the CP Component Mortgage Loan is
involved), and the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), in a computer-readable medium downloadable by the Trustee, the
Special Servicer, the Directing Certificateholder, the CP Controlling Holder (if
the CP Component Mortgage Loan is involved), any Companion Loan Noteholder(s)
(if the related Whole 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 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 shall e-mail such reports or files to the Directing
Certificateholder, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and the related Companion Loan Noteholder(s) (if a Whole 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).
(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 Loan document prohibiting disclosure of information with
respect to the 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 June
2005 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 the 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, the CP Controlling Holder (if the CP Component
Mortgage Loan is involved), the related Companion Loan Noteholder(s) (if a Whole
Loan is involved), and each other on or before March 20 of each year, beginning
in 2006, 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 2006 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 2006, 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 CP Controlling Holder (if the CP Component
Mortgage Loan is involved), and the related Companion Loan Noteholder(s) (if a
Whole Loan is involved), 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 2006 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 CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and any Companion Loan Noteholder(s) (if the related Whole 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 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 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 CP
Controlling Holder (if the CP Component Mortgage Loan is involved), and any
Companion Loan Noteholder(s) (if the related Whole 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. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, the Master Servicer and the Special Servicer may each (i) 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); (ii) affix to any information provided by it a reasonable statement
regarding securities law restrictions on such information and/or condition
access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related Loan documents or
would constitute a waiver of the attorney client privilege. Notwithstanding any
provision of this Agreement to the contrary, the failure of the Master Servicer
or the Special Servicer to disclose any information otherwise required to be
disclosed by it pursuant to this Agreement shall not constitute a breach of this
Agreement to the extent that the Master Servicer or the Special Servicer, as the
case may be, determines, in its reasonable good faith judgment consistent with
the applicable Servicing Standard, that such disclosure would violate applicable
law or any provision of a Mortgage Loan document or Companion Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or
Companion Loans or the Mortgaged Properties, constitute a waiver of the attorney
client privilege on behalf of the Trust or the Trust Fund or otherwise
materially harm the Trust or the Trust Fund. 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 Fashion Show Mall 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 Whole Loan, on
behalf of the related Companion Loan Noteholders), shall sell any REO Property
(other than any REO Property related to the Fashion Show Mall 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 Fashion Show Mall Mortgage Loan) separate and apart from
its own funds and general assets. If an REO Acquisition shall occur, except as
provided in the immediately succeeding 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 Whole
Loan, the Special Servicer shall establish an REO Account solely with respect to
such property (a "Whole Loan REO Account"), which may be a sub-account of the
Pool 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, into 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 an
REO Account to pay itself, as Additional Special Servicing Compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in such 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 Whole Loan is involved, the related Companion
Loan Noteholders, 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 Fashion Show Mall
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 Whole Loan Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Whole Loan 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 Whole Loan REO Account correspond to
the Certificate Account and the related Whole Loan 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 Fashion Show Mall 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 Whole Loan, 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 Whole Loan, 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 (taking into account the
subordination of the CP Subordinate Component), or if a Whole Loan is affected,
the interests of the Certificateholders and the related Companion Loan
Noteholders (as a collective whole taking into account the subordination of the
CP Subordinate Component, the Mission City Corporate Center B Note and the
Regents Square I & II B Note, as applicable), 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 (other than any REO Property
related to the Fashion Show Mall Mortgage Loan), 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 Fashion Show Mall 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 Whole Loan 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 Section 3.17(a),
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 Fashion Show Mall 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 (except, in the case
of the Fashion Show Mall Mortgage Loan, Midland Loan Services, Inc., for so long
as it is the Special Servicer under this Agreement) or the Trustee may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or a related REO
Property (other than any REO Property related to the Fashion Show Mall 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, an Intercreditor Agreement, or, in the case of a Mortgage Loan
with a related Mezzanine Loan, pursuant to the terms of the related Mezzanine
Intercreditor Agreement, or, in the case of the Fashion Show Mall Mortgage Loan,
in the Fashion Show Mall Intercreditor Agreement or the Fashion Show Mall
Pooling Agreement.
For the avoidance of doubt, for so long as Midland Loan Services,
Inc., is the Special Servicer under this Agreement, Midland Loan Services, Inc.
agrees that it shall have no right to purchase the Fashion Show Mall Mortgage
Loan under this Section 3.18.
(b) After the Master Servicer has pursuant to Section 3.21(a)
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, the Majority Certificateholder of the Controlling Class, the CP
Controlling Holder (and the CP Controlling Class Holder if such parties are not
the same) if the CP Component Mortgage Loan is involved, and each related B
Noteholder, if a Mortgage Loan included in any A/B Whole Loan is involved,
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 CP Controlling Holder (and the
CP Controlling Class Holder if such parties are not the same), if the CP
Component Mortgage Loan is involved, and each related B Noteholder, if a
Mortgage Loan included in any A/B Whole 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 Defaulted 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 option (the "Purchase Option") to purchase such Defaulted Mortgage
Loan (subject to the rights of the CP Controlling Holder (and the CP Controlling
Class Holder if such parties are not the same) if the CP Component Mortgage Loan
is involved, each related B Noteholder(s), if the Mortgage Loan included in any
A/B Whole Loan is involved, and subject to the rights of the Fashion Show Mall
Purchase Option Holder (if the Fashion Show Mall Mortgage Loan is involved) set
forth in Section 3.18(l)) 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, the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent 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 related Controlling Holder or the Fashion Show Mall
Purchase Option Holder (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 CP
Controlling Holder (with respect to the CP Component Mortgage Loan), the Fashion
Show Mall Purchase Option Holder (with respect to the Fashion Show Mall Mortgage
Loan), any B Noteholder (with respect to the related A/B Whole Loan) or any
Mezzanine Loan Holder (with respect to the related Mezzanine Loan), shall be
required to pay a Liquidation Fee with respect to any applicable purchase right
under this Agreement or in the applicable Intercreditor Agreement or with
respect to a purchase of a related Defaulted Mortgage Loan at its fair value as
determined in this Section 3.18 if such purchase occurs or purchase right is
exercised not later than 90 days from the date that the Special Servicer has
initially determined the fair value for the related Defaulted Mortgage Loan.
Any Option Holder may 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 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 that 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 Fashion Show Mall 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 REO Property (other than any REO Property related to the Fashion Show
Mall Mortgage Loan), 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 and the Directing Certificateholder, the CP Controlling Holder
(and the CP Controlling Class Holder if such parties are not the same) if the CP
Component Mortgage Loan is involved, and each related B Noteholder(s), if a
Mortgage Loan included in any A/B Whole 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, including the collection of all amounts payable in connection
therewith. A sale of any such 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, the
Trustee or the Fiscal Agent 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 Defaulted 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, 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 Whole Loan 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, the Fiscal Agent 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, the
Trustee or the Fiscal Agent 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 CP 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 CP Controlling Holder (and the
CP Controlling Class Holder if such parties are not the same) and the Trustee,
following its receipt of such notice, shall promptly notify the related
Controlling Holder. Upon receipt of such notice, the CP Controlling Holder, if
the CP Controlling Holder is the CP Controlling Class Holder, will have the
first option, but not the obligation, to purchase the CP Component Mortgage Loan
from the Trust Fund at a price equal to the Purchase Price thereof. If the CP
Controlling Class Holder in its capacity as the CP Controlling Holder fails to
exercise its related option within 30 days after receipt of such notice, then
the CP Component Mortgage Loan may be sold in accordance with Sections 3.18(b),
(c) and (d). For the avoidance of doubt, the CP Controlling Class Holder in its
capacity as the CP Controlling Holder may not purchase the CP Component Mortgage
Loan for less than the Option Price set forth in Section 3.18(c)(A).
(m) Notwithstanding anything to the contrary herein, (i) each
Mezzanine Lender may be entitled to purchase the related Mortgage Loan in
accordance with the terms and conditions set forth in the related Mezzanine
Intercreditor Agreement, even after it has been purchased out of the Trust Fund
pursuant to this Section 3.18, (ii) the Mission City Corporate Center B
Noteholder may be entitled to purchase the Mission City Corporate Center
Mortgage Loan in accordance with the terms and conditions set forth in Section
11 of the Mission City Corporate Center Intercreditor Agreement, and (iii) the
Regents Square I & II B Noteholder may be entitled to purchase the Regents
Square I & II Mortgage Loan in accordance with the terms and conditions set
forth in Section 11 of the Regents Square I & II Intercreditor Agreement, even
after it has been purchased out of the Trust Fund pursuant to this Section 3.18.
Any purchase of a Specially Serviced Loan that is purchased pursuant to this
Section 3.18 will remain subject to the purchase rights of, in each case if
applicable, (1) the related Mezzanine Lender as set forth in the related
Mezzanine Intercreditor Agreement, (2) the Mission City Corporate Center B
Noteholder as set forth in the Mission City Corporate Center Intercreditor
Agreement, and (3) the Regents Square I & II B Noteholder as set forth in the
Regents Square I & II Intercreditor Agreement.
Notwithstanding anything to the contrary herein, the Fashion Show
Mall Purchase Option Holder shall be entitled to purchase the Fashion Show Mall
Mortgage Loan in accordance with the terms and conditions set forth in Section 5
of the Fashion Show Mall Intercreditor Agreement, even after it has been
purchased out of the Trust Fund pursuant to this Section 3.18. The Fashion Show
Mall Master Servicer or the Fashion Show Mall Special Servicer, as applicable,
shall determine the price to be paid in accordance with the terms of the Fashion
Show Mall Intercreditor Agreement in connection with any such purchase and shall
provide such notices to the Fashion Show Mall Pari Passu Noteholders as are
required by the Fashion Show Mall Intercreditor Agreement in connection with
such holders' purchase rights. Any purchase of the Fashion Show Mall Mortgage
Loan that is purchased pursuant to this Section 3.18 will remain subject to the
purchase rights of the Fashion Show Mall Purchase Option Holder as set forth in
the Fashion Show Mall Intercreditor Agreement.
(n) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the CP Component Mortgage Loan will the related Mortgagor
(or any of its affiliates) be permitted to purchase the CP Component Mortgage
Loan should such Mortgage Loan become a Defaulted Mortgage Loan under this
Agreement.
(o) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the Fashion Show Mall Mortgage Loan, will the related
Mortgagor (or any of its affiliates) be permitted to purchase the Fashion Show
Mall Mortgage Loan should such Mortgage 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 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 Mortgage Loan (other than the Fashion Show Mall Mortgage
Loan) or Whole Loan (each such Mortgage Loan or Whole Loan and any related REO
Loan, until it ceases to be such in accordance with the following paragraph, 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 CP Controlling Holder (if the CP
Component Mortgage Loan is involved), the related Companion Loan Noteholder(s)
(if a Whole Loan is involved), and 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 Loan or REO 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. 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 CP Controlling Holder (if the CP Component
Mortgage Loan is involved), and the related Companion Loan Noteholder(s) (if a
Whole Loan is involved), the then applicable Appraisal Reduction Amount, if any,
with respect to the subject Required Appraisal Loan.
The Directing Certificateholder, the CP Controlling Holder (if the
CP Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole 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 CP Controlling Holder (if the CP Component Mortgage Loan
is involved), the related Companion Loan Noteholder(s) (if a Whole 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 CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and the related Companion Loan Noteholder(s) (if a Whole 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 CP Controlling Holder (if the CP
Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole 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 CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and the related Companion Loan Noteholder(s) (if a Whole 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
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate), 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 that 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 that 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 1:30 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 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
(other than the Fashion Show Mall Mortgage Loan) 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 Loan and REO Loan for which such Master Servicing Fees are being paid
in such Collection Period, calculated at 0.01% per annum, 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 Whole Loan, 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 Loan
documents regarding principal prepayments (other than (v) on a Specially
Serviced Loan, (w) a payment of insurance proceeds or condemnation proceeds, (x)
a payment subsequent to a default under the related 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 Loan pursuant to Section
3.20(a), neither the Master Servicer nor the Special Servicer shall consent to
any Mortgagor's prepaying its 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 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 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 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) Except as required under the Loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Loans (other than
the Fashion Show Mall Mortgage Loan)) and the Special Servicer (as to Specially
Serviced Loans (other than the Fashion Show Mall 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 and Excess 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 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 and
3.20(f), 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 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
(subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) 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, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, any
Controlling Holder, any mezzanine lender, or the Rating Agencies, 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) Subject to the restrictions on extensions in Section
3.20(a)(iv), the Master Servicer may (with the consent of the Directing
Certificateholder) extend the maturity date of any Mortgage Loan
(including any A/B Whole Loan, if applicable) for up to six months (but
not more than two such extensions by the Master Servicer shall occur);
(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 the
Certificateholders (taking into account the subordination of the CP
Subordinate Component), or if a Whole Loan is affected, to the
Certificateholders and the related Companion Loan Noteholders (as a
collective whole taking into account the subordination of the CP
Subordinate Component, the Mission City Corporate Center B Note and the
Regents Square I & II B Note, as applicable) 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 Loan to a date
beyond the earliest of (A) five years prior to the 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, ten 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 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 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 Loan
unless all related fees and expenses are paid by the related Mortgagor;
(vii) 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 (vii) 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); and provided, further, that,
notwithstanding clauses (i) through (vii) 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 (vii) 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 Whole
Loan, 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 (taking into account the
subordination of the CP Subordinate Component), or if a Whole Loan is affected,
to the Certificateholders and the related Companion Loan Noteholders (as a
collective whole taking into account the subordination of the CP Subordinate
Component, the Mission City Corporate Center B Note and the Regents Square I &
II B Note, as applicable) 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 CP
Controlling Holder (if the CP Component Mortgage Loan is involved), and the
related Companion Loan Noteholder(s) (if a Whole 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 Loan,
notwithstanding that the terms of such Loan so permit or that such interest may
actually be capitalized.
(d) The Master Servicer (as to Performing Loans (other than the
Fashion Show Mall Mortgage Loan)) and the Special Servicer (as to Specially
Serviced Loans (other than the Fashion Show Mall 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 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 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 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 CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and the related Companion Loan Noteholder(s) (if a Whole 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) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted to waive all or any accrued Excess
Interest if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Loan in full together with all payments
required by the Loan in connection with such prepayment except for all or a
portion of accrued Excess Interest; provided, that the Master Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders on a net present value
basis than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such payment is tendered. The Master Servicer shall
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria. Notwithstanding anything
contained in this Agreement to the foregoing, the Master Servicer shall be
required to seek the consent of the Directing Certificateholder and provide to
the Directing Certificateholder any information that the Directing
Certificateholder may reasonably request in order to grant or deny its consent,
provided that such information is in the possession of the Master Servicer,
prior to waiving any Excess Interest. The Directing Certificateholder's consent
to a waiver shall be deemed granted if the Directing Certificateholder fails to
respond to such request within ten Business Days of its receipt of such request.
Except as permitted in Section 3.20(a), the Special Servicer shall have no right
to waive the payment of Excess Interest.
(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 (unless otherwise set forth in the
related Intercreditor Agreement with respect to a Whole Loan) to approve the
following modifications, waivers or amendments of the Loans (other than the
Fashion Show Mall 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
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 or Adverse Grantor Trust 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 Fashion Show Mall Mortgage Loan) in accordance with
Section 3.20(a), the Special Servicer, in the case of a Specially Serviced Loan,
and the Master Servicer, in the case of a Performing Loan, shall each cause the
related Mortgagor to agree, if it has not already done so pursuant to the
existing Loan documents, to thereafter deliver to the Special Servicer, the
Trustee, the Directing Certificateholder, the CP Controlling Holder (if the CP
Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole 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 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.
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 Fashion Show Mall Mortgage Loan), the
Master Servicer shall immediately give notice thereof to the Directing
Certificateholder, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved), and the related Companion Loan Noteholder(s) (if a Whole 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 Holder of a Non-Registered Certificate
(except a Class V, Class R-I or Class R-II Certificate) 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 CP Controlling
Holder (if the CP Component Mortgage Loan is involved), and the related
Companion Loan Noteholder(s) (if a Whole 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 a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Mortgage 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
Mortgage Loans constituting part of the same Cross-Collateralized Group;
provided that no Cross-Collateralized Mortgage Loan may become a Corrected Loan
at any time that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage 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 CP Controlling Holder (if the CP
Component Mortgage Loan is involved), the related Companion Loan Noteholder(s)
(if a Whole Loan is involved), and the Directing Certificateholder a report (the
"Asset Status Report") with respect to such 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 CP Controlling Holder (if the CP Component
Mortgage Loan is involved), or the related Companion Loan Noteholder(s) (if a
Whole Loan is involved), 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 Loan documents; provided, further that if the
Special Servicer determines that the failure to take any action set forth in
such Asset Status Report would violate the Servicing Standard, the Special
Servicer may implement the recommended action outlined in such Asset Status
Report without waiting for the Directing Certificateholder's, the CP Controlling
Holder's (if the CP Component Mortgage Loan is involved), or the related
Companion Loan Noteholders' (if a Whole Loan is involved) response. If the
Directing Certificateholder, the CP Controlling Holder (if the CP Component
Mortgage Loan is involved), or the related Companion Loan Noteholder(s) (if a
Whole Loan is involved) disapproves such Asset Status Report, the Special
Servicer will revise such Asset Status Report and deliver to the Directing
Certificateholder, the CP Controlling Holder (if the CP Component Mortgage Loan
is involved), the related Companion Loan Noteholder(s) (if a Whole Loan is
involved), 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 related Controlling Holder or the related
Companion Loan Noteholder(s), as applicable, of an affirmative approval in
writing of such revised Asset Status Report, (y) the failure of Directing
Certificateholder, the related Controlling Holder or the related Companion Loan
Noteholder(s), as applicable, 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 Loan documents or fail to take any action, if
the failure to take such action would violate the Servicing Standard). 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. 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 CP Controlling Holder (if the
CP Component Mortgage Loan is involved), and the related Companion Loan
Noteholder(s) (if a Whole Loan is involved), with not less than ten Business
Days' prior notice (except as provided in Section 3.08(a)) of any Special Action
(as described below) that the Special Servicer or the Master Servicer, as
applicable, proposes to take 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
Section 3.21(f), 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 (other than the Fashion Show Mall Mortgage Loan))
and the related Controlling Holder (with respect to the CP Component Mortgage
Loan or any A/B Whole Loan so long as a related 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 or consent to the taking
of any Special Action if the Directing Certificateholder (with respect to the
Non-Partitioned Loans and the Post CAP Loans) or the related Controlling Holder
(with respect to the CP Component Mortgage Loan or any A/B Whole Loan so long as
a related Control Appraisal Period does not exist), as applicable, 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 or the related 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 or the related 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 the Mezzanine
Intercreditor Agreement (with respect to any Mortgage Loan with a related
Mezzanine Loan), (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(f), the Loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (z) if (a)
the Directing Certificateholder or the related Controlling Holder, as
applicable, (b) the Special Servicer or Master Servicer, as applicable, together
cannot agree upon a course of action with respect to any Special Action, then
the Special Servicer or Master Servicer, as applicable, shall implement its
proposed course of action and (c) if the Master Servicer or the Special Servicer
determines that immediate action is necessary in accordance with the Servicing
Standard, it may take such action prior to the expiration of the ten Business
Day period. Subject to the foregoing, in connection with the implementation of
any Special Action or the extension of the maturity date of a 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;
(iii) any proposed or actual sale of a Defaulted Loan or REO
Property (other than in connection with the termination of the Trust Fund
or pursuant to Section 3.18);
(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 (other than as expressly
required, with no lender discretion and/or is automatic, under the related
Loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the related
Loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space) (other than as expressly required, with no lender
discretion and/or is automatic, under the related Loan documents); or
(xii) any change in property manager or franchise (other than as
expressly required, with no lender discretion and/or is automatic, under
the related Loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, (i) no objection, failure to approve or direction of the Directing
Certificateholder or any Controlling Holder, 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 and 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, the Fiscal
Agent 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"), and (ii) in no event shall the Master Servicer or the Special
Servicer take any action or refrain from taking any action if the taking of such
action or the refraining from taking of such action would violate the Servicing
Standard or the REMIC Provisions. The Master Servicer or Special Servicer, as
applicable, shall disregard any such direction, failure to approve or objection.
The Directing Certificateholder and the Controlling Holders shall
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 or any Controlling Holder, 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 or any Controlling Holder, 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 or any
Controlling Holder, as applicable, may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates, that
the Directing Certificateholder or any Controlling Holder, as applicable, may
act solely in the interests of the Holders of the Controlling Class, that none
of the Directing Certificateholder or any Controlling Holder, as applicable, has
any duties to the Holders of any Class of Certificates other than the
Controlling Class, that none of the Directing Certificateholder or any
Controlling Holder, 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 or any Controlling Holder, as applicable, that none of the
Directing Certificateholder or any Controlling Holder, as applicable, shall have
any liability whatsoever for having so acted, and no Certificateholder may take
any action whatsoever against the Directing Certificateholder or any Controlling
Holder, as applicable, or any director, officer, employee, agent or principal
thereof for having so acted.
(g) With respect to each of the CP Component Mortgage Loan, the
Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage
Loan, notwithstanding anything to the contrary contained herein (but subject to
Section 3.21(f)), unless a related Control Appraisal Period is continuing, (i)
the Special Servicer shall be required to consult with the related Controlling
Holder upon the occurrence of any event of default under such Mortgage Loan, to
consider alternative actions recommended by the related Controlling Holder and
to consult with the related Controlling Holder with respect to determinations
made pursuant to Section 3.09 or Section 3.18 and (ii) at any time (whether or
not any event of default under such Mortgage Loan has occurred) the Master
Servicer and the Special Servicer shall be required to consult with the related
Controlling Holder to the extent that the related Mortgage Loan documents grant
the lender the right to approve budgets for the related Mortgaged Property,
prior to approving any such budget.
(h) In connection with any proposed Special Action, the Special
Servicer shall prepare a summary of such proposed Special Action and an analysis
of whether or not such Special Action is reasonably likely to produce a greater
recovery on a present value basis than not taking such action or making such
determination and shall provide to the related Controlling Holder such summary
and such information as is in its possession or control and is reasonably
requested by the related Controlling Holder as may be necessary in the
reasonable judgment of the related Controlling Holder in order to make a
determination with respect to such Special Action.
The Master Servicer shall provide to the related Controlling Holder
by hard copy or by electronic means concurrently with the delivery thereof to
the related Borrower, copies of any notice of an event of default under the
related Mortgage Loan documents and any other notices sent to such Borrower or
with respect to foreclosure or other exercise of remedies or enforcement,
modification or waiver with respect to the related Mortgage Loan or the related
Mortgaged Property.
The Master Servicer and the Special Servicer shall also provide to
the related Controlling Holder by hard copy, electronic means or by other means
agreed to by the related Controlling Holder and the Master Servicer or the
Special Servicer (A) within 30 days of receipt thereof, copies of any financial
statements, certificates, correspondence, notices, bills or reports with respect
to the related Borrower or Mortgaged Property that were delivered pursuant to,
or to which the mortgagee or lender would be entitled to under, the terms of the
related Mortgage Loan documents, (B) within 30 days following the receipt
thereof by the Master Servicer or the Special Servicer monthly operating
statements and rent rolls for the related Mortgaged Property and (C) within 30
days following the receipt thereof by the Master Servicer or the Special
Servicer annual operating statements and rent rolls for the related Mortgaged
Property.
The expense of providing information and summaries pursuant to this
Section 3.21(h) shall be an expense of the related Controlling Holder and shall
not be an expense of the Trust Fund.
(i) Before obtaining title for the Trust Fund to a Mortgaged
Property securing the Canadian Loan as a result or in lieu of foreclosure or
otherwise, the Special Servicer shall obtain an Opinion of Counsel, the cost of
which shall be an expense of the Trust Fund, to the effect that the inclusion of
the related Mortgaged Property in REMIC II would not cause the REMIC II to be
disqualified as a REMIC; provided that if the Special Servicer is unable to
obtain such Opinion of Counsel, it shall not proceed to obtain title for the
Trust Fund to such Mortgaged Property if, in accordance with Section 3.21(e),
the Directing Certificateholder has objected to such action after receiving
notice thereof. Subject to obtaining an Opinion of Counsel, title to such
Mortgaged Property may be held on behalf of the Trust Fund in a pass-through
entitiy such as a trust or a single member limited liability company.
(j) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer (acting on its own or through a subservicer) shall not service
the Canadian Loan on behalf of the Trust Fund (other than collecting periodic
rent rolls, collecting Mortgagor financial statements, making and forwarding
reports, inspecting property and any other similar servicing activities) from an
office located in Canada, unless (i) the Special Servicer has obtained an
Opinion of Counsel at the expense of the Trust Fund to the effect that such
action will not (A) cause the Trust Fund or the Trustee to be or to be deemed to
be resident in Canada for the purposes of the Canadian Income Tax Act and
therefore cause the Trust Fund or the Trustee to be subject to tax under the
Canadian Income Tax Act (other than with respect to withholding taxes, if any,
under Part XIII of the Canadian Income Tax Act on payments made pursuant to the
Canadian Loan); (B) cause the Trust Fund or the Trustee to be subject to the
Canadian federal or provincial sales, harmonized sales, goods and services or
value added taxes; or (C) cause the Trust Fund or the Trustee to be subject to
compliance with the Canadian Bank Act or (ii) Canadian law requires certain
servicing activities to be conducted from offices located in Canada.
Notwithstanding anything to the contrary in this Agreement, in
connection with any foreclosure proceedings relating to the Canadian Loan, the
Special Servicer shall not enter into possession of any of the Canadian
properties or in any manner carry on the business of the related Mortgagor on
behalf of the Trust Fund other than by way of a receiver appointed by the
applicable Canadian court; unless, in any such case, the Special Servicer has
obtained an Opinion of Counsel at the expense of the Trust Fund to the effect
that such action will not (i) cause the Trust Fund or the Trustee to be or to be
deemed to be a resident for the purposes of the Canadian Income Tax Act and
therefore cause the Trust Fund or the Trustee to be subject to tax under the
Canadian Income Tax Act (other than with respect to the withholding taxes, if
any, under Part XIII of the Canadian Income Tax Act on payments made pursuant to
the Canadian Loan); (ii) cause the Trust Fund or the Trustee to be subject to
Canadian federal or provincial sales or value added taxes; or (iii) cause the
Trust Fund or the Trustee to be subject to compliance with the Canadian Bank
Act.
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, other
than with respect to the Canadian Loan which does not require consent) 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 Whole
Loan 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 unless such Loan is then sub-serviced by Midland Loan
Services, Inc. or its permitted successors and assigns pursuant to such
Sub-Servicing Agreement (but only until such time as such Loan becomes a
Corrected 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) 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 or the Certificateholders or in the case of
a Whole Loan, the related Companion Loan Noteholder, 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, in the case of a Whole Loan, the related
Companion Loan Noteholders, 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 Xxxxxxx Mac or Xxxxxx 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 Whole Loan, the related
Companion Loan Noteholders) 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, the Trustee,
the CP Controlling Holder (if the CP Component Mortgage Loan is involved), and
the related Companion Loan Noteholder(s) (if a Whole Loan is involved), and then
the Trustee shall provide a copy of such notice to the Directing
Certificateholder, and, in accordance with Section 8.12(b), shall, upon request,
provide a copy of such notice to each Holder of a Non-Registered Certificate
(except a Class V, Class R-I or Class R-II Certificate) 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. 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 Fashion Show Mall Mortgage Loan) for
which it is responsible.
(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.
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the related Controlling Holder.
(a) 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 and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency. 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.
(b) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then CP Controlling Class (solely with respect to the
CP Component Mortgage Loan) or the related Controlling Holder (solely with
respect to the Mission City Corporate Center Mortgage Loan or the Regents Square
I & II Mortgage Loan, as applicable) shall be entitled to terminate the rights
and obligations of the Special Servicer under this Agreement with respect the
related Mortgage Loan, with or without cause, upon ten Business Days notice to
the Special Servicer, the Master Servicer and the Trustee, and to appoint a
successor Special Servicer; provided, however, that as evidenced in writing by
each of the Rating Agencies, the proposed successor of the Special Servicer will
not, in and of itself, result in a downgrading, withdrawal or qualification of
the then-current ratings provided by the Rating Agencies in respect to any Class
of Certificates then outstanding. Except as provided in this Section 3.23(b),
there shall not be more than one Special Servicer appointed under this
Agreement. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 3.23(b). The Holder or
Holders of more than 50% of the aggregate Certificate Balance of the then CP
Controlling Class (with respect to the CP Component Mortgage Loan) or the
related Controlling Holder (with respect to the Mission City Corporate Center
Mortgage Loan and Regents Square I & II Mortgage Loan), as applicable, shall
cause the Special Servicer to be reimbursed for the payment of any outstanding
reasonable out-of-pocket costs and expenses pursuant to the terms hereof, which
costs and expenses shall not be an expense of the Trust Fund.
The terminated Special Servicer (i) 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 termination, 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. 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 and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency.
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, a Controlling Class Certificateholder, the Sub-Servicer
(with respect to any Loans it is sub-servicing), a Borrower (with respect to the
related Loan), any Certificateholder, any Companion Loan Noteholder and the
Rating Agencies, any information that 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 that have
been informed of the confidential nature of the information provided to them;
(iii) the Mortgage Loan Seller with respect to information relating to the Loans
transferred into the Trust by the Mortgage Loan Seller; (iv) a potential
purchaser of servicing rights hereunder that 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; or (ix) to the
extent the Depositor consents in writing to such disclosure. 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 Loans and the 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 may 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, Xxxxx'x and S&P
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 Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage 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 Mortgage 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 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related 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, any
Controlling Holder or the Fashion Show Mall Purchase Option 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
or any 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 Fiscal Agent, 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 Fiscal Agent, 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 any 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;
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, 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 Intercreditor
Agreement and/or this Agreement:
First, to pay to the Fiscal Agent, 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 Whole Loan 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 Whole Loans.
(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 Whole 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) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in a Whole Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor 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 the holder
of the related Note (as a result of such purchase or repurchase), under the
related 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 such purchaser or a custodian appointed thereby for the
benefit of such purchaser, and the other Lenders, as their interests appear
under the related 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 Whole Loans.
Section 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor.
(a) The Majority Certificateholder of the CP Controlling Class (the
"CP Controlling Class Holder") shall be permitted to appoint an "Operating
Advisor" with respect to the CP Component Mortgage Loan. An Operating Advisor
may be the related Controlling Holder or any holder of the controlling interest
in the CP 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 CP Component Mortgage Loan and requires the CP Controlling Class
Holder's consent in its capacity as a Controlling Holder. 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
CP Component Mortgage Loan. No such Operating Advisor shall owe any fiduciary
duty or other duty to any other Person (other than the CP Controlling Class
Holder). The Trustee shall not be required to recognize any Person as
constituting the CP 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 CP 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). If any party hereto requests the Trustee to access records at the
Depository to confirm that a Person constitutes the CP Controlling Class Holder,
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). 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, the CP 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. 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 Advisor with respect to the CP Component
Mortgage 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.
(b) The related Operating Advisor will be permitted to exercise all
of the rights of the CP 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 CP Component 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 CP Controlling Class Holder in its capacity as the CP Controlling
Holder will mean the CP Controlling Holder acting through its related Operating
Advisor if one has so been appointed.
Section 3.30 Matters Relating to Certain Mortgage Loans.
(a) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as Loan No. 58623, the Master Servicer is authorized to approve a
modification to the lease on the related Mortgaged Property in accordance with
the description set forth in Annex A.
(b) Insofar as the Master Servicer has discretion under the related
Mortgage Loan documents and subject to the Servicing Standard, then:
(i) Prior to the Master Servicer consenting on behalf of the Trust
to any assumption of the Mortgage Loan identified on the Mortgage Loan
Schedule as Loan No. 58921, the Master Servicer shall have received prior
written confirmation from each Rating Agency that such assumption would
not result in the withdrawal, downgrade or qualification (if applicable)
of the rating of any Class of Certificates;
(ii) Prior to the Master Servicer consenting on behalf of the Trust
to any equity transfers in respect of the Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. 58921, the Master Servicer shall have
received prior written confirmation from each Rating Agency that such
equity transfer would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificates;
(iii) Prior to the Master Servicer consenting on behalf of the Trust
to any amendment to the organizational documents of the Borrower in the
Mortgage Loan identified on the Mortgage Loan Schedule as Loan No. 58623,
the Master Servicer shall have received prior written confirmation from
each Rating Agency that such amendment would not result in the withdrawal,
downgrade or qualification (if applicable) of the rating of any Class of
Certificates; and
(iv) Prior to the Master Servicer consenting on behalf of the Trust
to any "Permitted Transfers" (as such term is defined in and relates to
the Mortgage Loan identified on the Mortgage Loan Schedule as Loan No.
58908), the Master Servicer shall have received prior written confirmation
from each Rating Agency that such "Permitted Transfer" would not result in
the withdrawal, downgrade or qualification (if applicable) of the rating
of any Class of Certificates.
Section 3.31 Matters Regarding the Fashion Show Mall Whole Loan.
(a) In the event that any of the Fashion Show Mall Trustee, the
Fashion Show Mall Master Servicer or the Fashion Show Mall Special Servicer
shall be replaced in accordance with the terms of the Fashion Show Mall Pooling
Agreement, the Master Servicer and the Special Servicer shall acknowledge any
such successor as the successor to the Fashion Show Mall Trustee, the Fashion
Show Mall Master Servicer or the Fashion Show Mall Special Servicer, as the case
may be, and shall notify the Trustee regarding such replacement.
(b) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt from the Fashion Show Mall Master
Servicer, the Fashion Show Mall Special Servicer or the Fashion Show Mall
Trustee, any servicing reports concerning the Fashion Show Mall Mortgage Loan.
(c) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Fashion Show Mall Mortgage Loan is purchased or repurchased from the Trust Fund,
the purchaser thereof shall be bound by the terms of the Fashion Show Mall
Intercreditor Agreement and shall assume the rights and obligations of the "A-2
Co-Lender" under the Fashion Show Mall Intercreditor Agreement. All portions of
the related Mortgage File and other documents pertaining to the Fashion Show
Mall Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as "A-2
Co-Lender" (as a result of such purchase or repurchase), under the Fashion Show
Mall 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 A-2 Co-Lender or a custodian appointed thereby for the
benefit of the "A-2 Co-Lender" and the other Lenders or "Co-Lender", as the case
may be, as their interests appear under the Fashion Show Mall 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 Fashion Show
Mall Whole Loan.
Section 3.32 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.
(a) The related Controlling Holder shall not owe any fiduciary duty
to the Trustee, the Master Servicer, the Special Servicer or any
Certificateholder (other than in the case of the CP Component Mortgage Loan, the
holders of the CP Controlling Class). The related Controlling Holder will not
have any liability to the Certificateholders (other than in the case of the CP
Component Mortgage Loan, the holders of the CP Controlling Class) and, in the
case of the CP Component Mortgage Loan, shall have no liability to any holder of
the CP Controlling Class for any action taken, or for refraining from the taking
of any action or the giving or withholding of any consent, pursuant to this
Agreement, or for errors in judgment; provided, however, that with respect to
the holders of the CP Controlling Class, the related Controlling Holder shall
not be protected against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in the performance of its duties
or by reason of reckless disregard of obligations or duties. By its acceptance
of a Certificate, each Certificateholder confirms its understanding that the
related Controlling Holder may take or refrain from taking actions that favor
the interests of one or more Classes of the Certificates over other Classes of
the Certificates, and that the related Controlling Holder may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates, that the CP Controlling Holder may act solely in the
interests of the Holders of the CP Controlling Class, that the related
Controlling Holder does not have any duties to the Holders of any Class of
Certificates (other than in the case of the CP Controlling Holder, the holders
of the CP Controlling Class), that the CP Controlling Holder may take actions or
refrain from taking any actions in good faith that favor the interests of the
Holders of the CP Controlling Class over the interests of the Holders of one or
more other Classes of Certificates, and that the related Controlling Holder
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the related Controlling Holder or any
director, officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary, so
long as no related Control Appraisal Event exists, the related Controlling
Holder, in lieu of the Directing Certificateholder, shall be entitled to
exercise all rights of the Directing Certificateholder under this Agreement with
respect to the CP Component Mortgage Loan, the Mission City Corporate Center
Mortgage Loan and Regents Square I & II Mortgage Loan, as applicable, and any
references to the Directing Certificateholder in this Agreement relating to
actions permitted to be taken only with the consent of the Directing
Certificateholder with respect to such Mortgage Loan shall be deemed to be
references to the related Controlling Holder; provided, however, that (i) the
Directing Certificateholder shall also have the right to receive all reports and
notices under this Agreement (which shall not be an expense of the related
Controlling Holder), (ii) the Directing Certificateholder shall also have the
right to consult with the Special Servicer regarding such Mortgage Loan, (iii)
the Directing Certificateholder (and not the related Controlling Holder) shall
be entitled to exercise the Purchase Option set forth in Section 3.18(c) with
respect to such Mortgage Loan and (iv) the related Controlling Holder shall not
be entitled to terminate the Special Servicer except as set forth in Section
3.23(b).
In addition, if a Control Appraisal Period exists with respect to CP
Component Mortgage Loan, the Mission City Corporate Center Mortgage Loan and
Regents Square I & II Mortgage Loan, then the related Controlling Holder shall
not be authorized to exercise any of its approval and consent rights and powers
provided for in Section 3.23, this Section 3.32 or elsewhere in this Agreement
with respect to such Mortgage Loan and the Directing Certificateholder shall be
entitled to exercise all such rights and powers, subject to the provisions of
the related Intercreditor Agreement; provided, however, that the related
Controlling Holder shall nevertheless retain the right to receive distributions,
notices and reports under this Agreement.
(c) Within five Business Days of receipt of written notice that a
new related Controlling Holder has been selected, the Trustee shall deliver
notice to the Master Servicer and the Special Servicer, of such related
Controlling Holder's identity.
(d) With respect to each of the CP Component Mortgage Loan, the
Mission City Corporate Center Mortgage Loan and Regents Square I & II Mortgage
Loan, notwithstanding anything to the contrary contained herein:
(i) Subject to clause (ii) below, in the event that the related
Borrower fails to make any payment on the CP Component Mortgage Loan, the
Mission City Corporate Center Mortgage Loan or the Regents Square I & II
Mortgage Loan, as applicable, by the end of the applicable grace period
(the "Grace Period") for such payment permitted under the applicable
Mortgage Loan documents (a "Monetary Default") and such Mortgage Loan is
not a Specially Serviced Loan, provided that, in the case of the Mission
City Corporate Center Mortgage Loan and Regents Square I & II Mortgage
Loan, the related B Noteholder is not the related Borrower or an Affiliate
thereof, the Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then CP Controlling Class (with respect to the
CP Component Mortgage Loan) or the related Controlling Holder (with
respect to the Mission City Corporate Center Mortgage Loan and Regents
Square I & II Mortgage Loan) shall have the right, but not the obligation,
to cure such Monetary Default (a "Cure") within five (5) Business Days
after the expiration of the Grace Period and at no other times (the
"Monetary Default Cure Period"). At the time such cure payment is made,
the Holder or Holders of more than 50% of the aggregate Certificate
Balance of the then CP Controlling Class or the related Controlling
Holder, as applicable, shall pay or reimburse the Trust Fund for all
unreimbursed Advances, unpaid Advance Interest, unpaid fees to the Master
Servicer, the Special Servicer or the Trustee, and Additional Trust
Expenses borne by the Trust Fund relating to the default on the related
Mortgage Loan. So long as a Monetary Default exists for which a cure
payment permitted hereunder is made, such Monetary Default shall not be
treated as a Servicing Transfer Event with respect to such Mortgage Loan;
provided that such limitation shall not prevent the Trustee, on behalf of
the Trust Fund, from collecting default interest or late charges from the
related Borrower or exercising any other right or remedy.
(ii) Notwithstanding anything to the contrary contained in this
Section 3.32, the right of the Holder or Holders of more than 50% of the
aggregate Certificate Balance of the then CP Controlling Class or the
related Controlling Holder, as applicable, to cure a Monetary Default or
Non-Monetary Default shall be limited to three (3) consecutive Cures and
limited to six (6) Cures (whether or not for consecutive months) for the
life of the related Mortgage Loan.
(iii) No action taken by the Holder or Holders of more than 50% of
the aggregate Certificate Balance of the then CP Controlling Class or the
related Controlling Holder, as applicable, in accordance with this
Agreement shall excuse performance by the related Borrower of its
obligations under the Mortgage Loan documents and the rights of the
Trustee, on behalf of the Trust Fund, under the related Mortgage Loan
documents shall not be waived or prejudiced by virtue of the actions of
such Holder or Holders or related Controlling Holder, as applicable, under
this Agreement.
(iv) In the event that an Event of Default (other than a Monetary
Default) occurs and is continuing under the related Mortgage Loan
documents (a "Non-Monetary Default"), provided that, in the case of the
Mission City Corporate Center Mortgage Loan and Regents Square I & II
Mortgage Loan, the related B Noteholder is not the related Borrower or an
Affiliate thereof, the Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then CP Controlling Class (with respect to the
CP Component Mortgage Loan) or the related Controlling Holder (with
respect to the Mission City Corporate Center Mortgage Loan and Regents
Square I & II Mortgage Loan) shall have the right, but not the obligation,
to cure such Non-Monetary Default within the same period of time as the
related Borrower under the related Mortgage Loan documents to cure such
Non-Monetary Default; provided, however, that if such Non-Monetary Default
is susceptible of cure but cannot reasonably be cured within such period
and if curative action was promptly commenced and is being diligently
pursued by such Holder or Holders or related Controlling Holder, as
applicable, such Holder or Holders or related Controlling Holder, as
applicable, shall be given an additional period of time as is reasonably
necessary to enable such Holder or Holders or related Controlling Holder,
as applicable, in the exercise of due diligence to cure such Non-Monetary
Default for so long as (i) such Holder or Holders or related Controlling
Holder, as applicable, diligently and expeditiously proceeds to cure such
Non-Monetary Default, (ii) such Holder or Holders or related Controlling
Holder, as applicable, makes all cure payments that it is permitted to
make in accordance with the terms and provisions of clause (i) above,
(iii) such additional period of time does not exceed thirty (30) days,
(iv) such Non-Monetary Default is not caused by a bankruptcy, insolvency
or assignment for the benefit of creditors of the related Borrower or
during such period of time that such Holder or Holders or related
Controlling Holder, as applicable, has to cure a Non-Monetary Default in
accordance with this clause (iv) (the "Non-Monetary Default Cure Period"),
a bankruptcy, insolvency or assignment for the benefit of creditors of the
related Borrower does not occur and (v) during such Non-Monetary Default
Cure Period, there is no material adverse effect on the related Borrower
or the related Mortgaged Property or the value of the related Mortgage
Loan as a result of such Non-Monetary Default or the attempted cure. Such
Holder or Holders or related Controlling Holder, as applicable, shall not
contact the related Borrower in order to effect any cures under this
clause (iv) without the prior written consent of the Trustee.
(v) Notwithstanding anything to the contrary contained herein, in no
event shall any Non-Monetary Cure Period extend beyond the date that is
five years prior to the Rated Final Distribution Date.
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 CP Component Mortgage Loan REMIC Senior Regular
Interest pursuant to 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, and then to the REMIC I Regular Interest LA-1-3,
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, and then to the REMIC I Regular Interest LA-2-3,
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; (iv) the
Class A-4 Certificates, first to the REMIC I Regular Interest LA-4-1,
second to the REMIC I Regular Interest LA-4-2, third to the REMIC I
Regular Interest LA-4-3, fourth to the REMIC I Regular Interest LA-4-4,
and then to the REMIC I Regular Interest LA-4-5, in each case, until
reduced to zero; (v) 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, fifth to the REMIC I Regular Interest LA-AB-5,
sixth to the REMIC I Regular Interest LA-AB-6, seventh to the REMIC I
Regular Interest LA-AB-7, and then to the REMIC I Regular Interest
LA-AB-8, in each case, until reduced to zero; (vi) the Class A-5
Certificates, first to the REMIC I Regular Interest LA-5-1, second to the
REMIC I Regular Interest LA-5-2, and then to the REMIC I Regular Interest
LA-5-3, in each case, until reduced to zero; (vii) the Class D
Certificates, first to the REMIC I Regular Interest LD-1, second to the
REMIC I Regular Interest LD-2 and then to the REMIC I Regular Interest
LD-3, in each case, until reduced to zero; (viii) 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; (ix) the Class F Certificates,
first to the REMIC I Regular Interest LF-1, second to the REMIC I Regular
Interest LF-2 and then to the REMIC I Regular Interest LF-3, in each case,
until reduced to zero; (x) 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; (xi) 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, 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-4, Class A-AB, Class A-5, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificate Pass-Through
Rates were equal to the Weighted Average Adjusted Net Mortgage Rate and as
though the Class XC and Class XP Notional Amounts 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
Corresponding Certificates (and pro rata among such REMIC I Regular
Interests corresponding to a related Class of Corresponding 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 (xlvi) below, satisfying in full, to
the extent required and possible, each priority before making any distribution
with respect to any succeeding priority.
(i) to distributions of interest to the Holders of the Class A-1,
Class A-2, Class A-3, the Class A-4, Class A-AB, Class A-5 Certificates,
Class XC Certificates and Class XP Certificates, 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,
Class A-2, Class A-3, Class A-4, Class A-AB and Class A-5 Certificates in
reduction of the Class Principal Balances thereof (1) first, to the
Holders of the Class A-AB Certificates, in an amount up to the Principal
Distribution Amount 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 Principal Distribution Amount
remaining after payments to the Holders of the Class A-AB Certificates (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 Principal
Distribution Amount remaining after payments to the Holders of the 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 Principal Distribution Amount remaining after
payments to the Holders of the 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-4 Certificates, in an amount up to the Principal
Distribution Amount remaining after payments to the Holders of the 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-4 Certificates has
been reduced to zero; (6) sixth, to the Holders of the Class A-AB
Certificates, in an amount up to the Principal Distribution Amount
remaining after payments to the Holders of the Class A-AB (up to the Class
A-AB Planned Principal Amount), Class A-1, Class A-2, Class A-3 and Class
A-4 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 (7) seventh, to the Holders of the Class A-5
Certificates, in an amount up to the Principal Distribution Amount
remaining after payments to the Holders of the Class A-1, Class A-2, Class
A-3, Class A-4 and Class A-AB Certificates have been made on such
Distribution Date, until the Class Principal Balance of the Class A-5
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-4
Certificates, the Class A-AB Certificates and the Class A-5 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-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;
(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-4
Certificates, the Class A-AB Certificates and the Class A-5 Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class A-M Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-M 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-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 A-M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates and Class A-M 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;
(ix) 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;
(x) 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;
(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-4
Certificates, the Class A-AB Certificates, the Class A-5 Certificates,
Class A-M 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;
(xii) 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;
(xiii) 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;
(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-4
Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M Certificates, the Class A-J Certificates and the 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;
(xv) 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;
(xvi) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xviii) 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;
(xix) 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;
(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-4
Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M 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;
(xxi) 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;
(xxii) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxiv) 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;
(xxv) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxvii) 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;
(xxviii) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxx) 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;
(xxxi) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxxiii) 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;
(xxxiv) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxxvi) 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;
(xxxvii) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xxxix) 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;
(xl) 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;
(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-4
Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M 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;
(xlii) 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;
(xliii) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xlv) 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;
(xlvi) 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;
(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-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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;
(xlviii) 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;
(xlix) 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;
(l) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates, the Class A-4
Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M 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;
(li) 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
(lii) 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 (li) 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-4 Certificates, the
Class A-AB Certificates and the Class A-5 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), (xlvii), and (l) 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-4 Certificates, the Class
A-AB Certificates and the Class A-5 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
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), (xlvii), and (l)
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 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-4 Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M 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
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-4 Certificates, the Class A-AB Certificates, the Class A-5 Certificates, the
Class A-M 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, the Class O Certificates and
the 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 such Mortgage Loans
collected on such principal prepayments during the related Collection Period.
Any Prepayment Premiums collected on such Mortgage Loans during the related
Collection Period remaining after such distributions will be distributed to (i)
the Holders of the Class XC and Class XP Certificates, 90% and 10%,
respectively, until and including the Distribution Date in June 2012 and (ii)
following such Distribution Date, entirely 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 and (b) whose denominator is the amount, if
any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
Discount Rate. 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. The "Discount Rate" with respect to any
applicable Prepayment Premium calculation, is the yield on the United
Stated Treasury issue with a maturity date closest to the Maturity Date
for the Mortgage Loan being prepaid (if applicable, converted to a monthly
compounded nominal yield), or an interpolation thereof, in any case as
specified and used in accordance with the related Loan documents in
calculating the Prepayment Premium with respect to the related prepayment.
(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, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4 Certificates, the Class A-AB Certificates, the Class A-5
Certificates, the Class A-M 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, (i)
90% and 10% of all Prepayment Premiums and yield maintenance charges with
respect to the Mortgage Loans shall be distributed to the Holders of the
Class XC and Class XP Certificates, respectively, until and including the
Distribution Date in June 2012; and (ii) following such Distribution Date,
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 CP Component Mortgage Loan and allocable to the CP
Component Mortgage Loan Senior Component 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 CP Component Mortgage Loan REMIC Senior
Regular Interest (whether or not the CP Component Mortgage Loan REMIC
Senior Regular Interest has received all distributions of interest and
principal to which it is entitled). 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 that 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) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
withdrawn by the Trustee from the Excess Interest Distribution Account and
distributed by the Trustee to the Holders of the Class V Certificates.
(j) On the final Master Servicer Remittance Date, the Master
Servicer shall withdraw from the Certificate Account and deliver to the REMIC
Administrator who shall distribute to the Holders of the Residual Certificates,
any Loss of Value Payments transferred from the Loss of Value Reserve Fund to
the Certificate Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(a), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
(k) On each Distribution Date, the Trustee, in respect of the CP
Component Mortgage Loan Senior Regular Interest, the Class CP 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 CP 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 CP Component Mortgage Loan Available
Distribution Amount that remain after all prior distributions under this Section
4.01(k):
(i) with respect to the CP Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the CP Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to all
Distributable CP Component Mortgage Loan Certificate Interest in respect
of the CP 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 CP Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the CP Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to the CP
Component Mortgage Loan Component Principal Entitlement for the CP
Component Mortgage Loan Senior Component for such Distribution Date (the
"CP Component Mortgage Loan Senior Component Principal Distribution
Amount");
(iii) with respect to the CP Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the CP Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, to reimburse the CP Component Mortgage
Loan Senior Component for all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated with respect to the CP Component
Mortgage Loan to the CP Component Mortgage Loan Senior Component and for
which no reimbursement has previously been paid;
(iv) to pay interest on the CP Component Mortgage Loan Subordinate
Component, up to an amount equal to all Distributable CP Component
Mortgage Loan Certificate Interest in respect of the CP 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 CP Component Mortgage Loan Subordinate
Component, up to an amount equal to the CP Component Mortgage Loan
Component Principal Entitlement for the CP Component Mortgage Loan
Subordinate Component for such Distribution Date;
(vi) to reimburse the CP Component Mortgage Loan Subordinate
Component for all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated with respect to the CP Component Mortgage Loan
to the CP Component Mortgage Loan Subordinate Component and for which no
reimbursement has previously been paid;
(vii) with respect to the CP 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 distributions made on the CP Component
Mortgage Loan on such Distribution Date, over (B) the sum of (1) the
distributions deemed made in respect of the CP 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),
and (2) the distributions made in respect of the Class CP Certificates on
such Distribution Date pursuant to clauses (iv) through (vi) 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") and based upon the
information provided by the Master Servicer in accordance with Commercial
Mortgage Securities Association guidelines, 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 and the
Class CP 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 CP Certificates allocable to the
Distributable CP Component Mortgage Loan Certificate Interest, and the
amount of the distribution, if any, on such Distribution Date to the
Holders of the Class CP Certificates allocable to Prepayment Premiums;
(iv) the Available Distribution Amount and the CP 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
other 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 in respect of the immediately preceding Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
(less the CP Component Mortgage Loan Subordinate Balance) 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 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 and the Distributable CP Component Mortgage Loan Certificate
Interest in respect of each Class of REMIC II Regular Certificates and the
Class CP Certificates, as applicable, for such Distribution Date;
(xiii) the aggregate amount of Distributable Certificate Interest
and the Distributable CP Component Mortgage Loan Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates and the
Class CP Certificates, as applicable, on such Distribution Date,
including, without limitation, any Distributable Certificate Interest
remaining unpaid from prior Distribution Dates;
(xiv) any unpaid Distributable Certificate Interest and
Distributable CP Component Mortgage Loan Certificate Interest in respect
of Class of REMIC II Regular Certificates and the Class CP 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 and the Class CP Certificates, as applicable, for such
Distribution Date;
(xvi) the Principal Distribution Amount with respect to the Mortgage
Pool for such Distribution Date, separately identifying the amounts
distributable to each Class of REMIC II Regular Certificates and the Class
CP 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 each Class of REMIC II Regular Certificates and the Class
CP 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 and the Class CP 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;
(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 CP
Certificates;
(xxvii) the amounts held in the Excess Liquidation Proceeds Account;
(xxviii) the CMSA Reconciliation of Funds Report; and
(xxix) the CP Component Mortgage Loan Subordinate Balance.
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), (ii)
and (iii) 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 or Class CP
Certificate a statement containing the information as to the applicable Class
set forth in clauses (i), (ii) and (iii) 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 IRS 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 (000) 000-0000. 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, which
is hereby given, the Trustee shall make available to Bloomberg, L.P., Xxxxx,
LLC, Intex Solutions, Inc. 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 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 Loan
document prohibiting disclosure of information with respect to the 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 Loan document prohibiting disclosure of information with respect
to the 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 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 Fashion Show Mall
Mortgage Loan, as to which P&I Advances will be made by the Fashion Show Master
Servicer pursuant to the Fashion Show Mall Pooling Agreement or by the Trustee
pursuant to this Section 4.03(a)) other than a Mortgage Loan included in a Whole
Loan, 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 Whole Loan (or, with
respect to any A/B Whole Loan, only the related Mortgage Loan), on each Master
Servicer Remittance Date, the Master Servicer shall either (i) deposit into the
related Whole Loan 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 Whole Loan, (ii) apply amounts held in the related
Whole Loan 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 Whole Loan 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
Loan Noteholder under any Intercreditor Agreement) to make such P&I Advances.
Any amounts held in the Certificate Account or if a Whole Loan is involved, the
related Whole Loan 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 Whole Loan is
involved, the related Whole Loan 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). If, as of 3:00 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 (other than a P&I Advance with
respect to a Companion Loan) 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. (000) 000-0000 (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
or the Fiscal Agent determines that such Advance would be a Nonrecoverable P&I
Advance if made, the Trustee or the Fiscal Agent 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. None of the Master
Servicer, the Trustee or the Fiscal Agent shall be required to make a P&I
Advance on any Companion Loan or on the CP Component Mortgage Loan Subordinate
Component.
The parties hereto agree and acknowledge that the Master Servicer
shall not be required to make P&I Advances with respect to the Fashion Show Mall
Mortgage Loan. The Fashion Show Mall Master Servicer will be required to make
P&I Advances with respect to the Fashion Show Mall Mortgage Loan under the
Fashion Show Mall Pooling Agreement, or if the Fashion Show Mall Master Servicer
fails to make a required P&I Advance with respect to the Fashion Show Mall
Mortgage Loan pursuant to the Fashion Show Mall Intercreditor Agreement and the
Fashion Show Mall Pooling Agreement, the Fashion Show Mall Trustee shall make
such P&I Advance pursuant to the Fashion Show Mall Pooling Agreement by noon,
New York City time, on the related Distribution Date unless the Master Servicer
or the Fashion Show Mall Master Servicer pursuant to the Fashion Show Mall
Intercreditor Agreement and the Fashion Show Mall Pooling Agreement shall have
cured such failure (and provided written notice of such cure to 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 P&I Advances with respect to the Fashion Show Mall Mortgage
Loan under the following circumstances: If the Fashion Show Mall Master Servicer
and/or the Fashion Show Mall Trustee is required to make a P&I Advance with
respect to the Fashion Show Mall Mortgage Loan under the Fashion Show Mall
Pooling Agreement but neither does so by noon, New York City time, on the
related Distribution Date, then the Trustee shall give notice to the Fashion
Show Mall Master Servicer, the Fashion Show Mall Special Servicer and/or the
Fashion Show Mall Trustee, as the case may be, of such failure. If, as of 1:00
p.m., New York City time, on the related Distribution Date, the Fashion Show
Mall Master Servicer or the Fashion Show Mall Trustee shall not have made such
P&I Advance, then unless the Trustee or the Fiscal Agent determines that such
Advance would be a Nonrecoverable P&I Advance if made, the Trustee or the Fiscal
Agent shall make, by 2:00 p.m. on such Distribution Date, such P&I Advance.
In connection with any P&I Advance not timely made by the Fashion
Show Mall Master Servicer or the Fashion Show Mall Trustee, the Trustee and the
Fiscal Agent will not be liable or held responsible for any resulting delay (or
claims by DTC resulting therefrom) in the making of any distribution to
Certificateholders. In addition, if the Trustee incurs out-of-pocket expenses,
despite reasonable efforts to avoid or mitigate such expenses, as a consequence
of the Fashion Show Mall Master Servicer or the Fashion Show Mall Trustee
failing to make such P&I Advance, the Trustee will be entitled to reimbursement
from the Trust Fund.
(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; provided, further, that the Master Servicer shall not advance
Excess Interest with respect to ARD Loans or a Prepayment Premium.
(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 Mortgage Loans included in a Whole Loan and the
Fashion Show Mall Mortgage Loan, 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 the Fashion
Show Mall Mortgage Loan, Nonrecoverable P&I Advances shall be reimbursable
pursuant to the Fashion Show Mall Pooling Agreement, the Fashion Show Mall
Intercreditor Agreement and/or this Agreement. With respect to a Mortgage Loan
included in a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable
pursuant to Section 3.05(f). The determination by the Master Servicer, the
Trustee or the Fiscal Agent that it has made 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),
to the Fiscal Agent (or, if applicable, retained thereby), the Depositor, the
Rating Agencies, the Directing Certificateholder, the Fashion Show Mall Purchase
Option Holder (if the Fashion Show Mall Mortgage Loan is involved), the CP
Controlling Holder (if the CP Component Mortgage Loan is involved), and the
related Companion Loan Noteholder(s) (if a Whole 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 and the Fiscal Agent 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 and the Fiscal Agent 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, and the Master Servicer and the Trustee and the Fiscal
Agent 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) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Whole Loan or any portion thereof, the Master
Servicer, the Trustee and the Fiscal Agent 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 Whole Loan is involved, out of general
collections on deposit in the related Whole Loan Custodial Account. As and to
the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a
Whole Loan, the Master Servicer shall reimburse itself, the Trustee or the
Fiscal Agent, 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 Whole Loan is involved are deposited into the
related Whole Loan 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 under with
respect to any Whole Loan under this Section shall be payable (unless required
to be paid to any Companion Loan Noteholder under any Intercreditor Agreement):
(i) first, 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, (ii) second, out of Default Charges collected on or
in respect of the related Companion Loans, pro rata during the 12-month period
in which such Advance is reimbursed, (iii) third, to the extent that the Default
Charges described in the immediately preceding clause (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 such Whole Loan, and (iv) solely
with respect to such Whole Loan, to the extent that Default Charges or other
collections 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 Advances has been previously reimbursed, out of general
collections on or in respect of the Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee or the Fiscal Agent 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.
(f) Interest accrued on any P&I Advance made by the Trustee with
respect to the Fashion Show Mall Mortgage Loan shall be payable in accordance
with the Fashion Show Mall Intercreditor Agreement and this Agreement.
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 Holders of the Class CP Certificates on such date pursuant to
Section 4.01(k), the Trustee shall determine with respect to the CP Component
Mortgage Loan the amount, if any, by which (i) the sum of (A) the CP Component
Mortgage Loan Senior Balance and (B) the CP Component Mortgage Loan Subordinate
Balance exceeds (ii) the Stated Principal Balance of the CP Component Mortgage
Loan that will be outstanding immediately following such Distribution Date. If
such excess does exist with respect to the CP Component Mortgage Loan, then the
CP Subordinate Mortgage Loan Subordinate Balance shall be reduced until such
excess or the CP Subordinate Mortgage Loan Subordinate Balance is reduced to
zero (whichever occurs first).
On each Distribution Date, following the distributions to be made to
the Certificateholders, other than the Holders of Class CP Certificates on such
date pursuant to Section 4.01(b) and the allocation of Realized Losses pursuant
to the preceding paragraph, 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 CP Component Mortgage Loan Subordinate Balance) that will be
outstanding immediately following such Distribution Date (provided, however,
that for purposes of this calculation, any Workout-Delayed Reimbursement Amounts
paid from principal collections on the Mortgage Pool shall for purposes of this
calculation be deemed to still be outstanding unless the related Unliquidated
Advance has been determined to be a Nonrecoverable Advance on the related
Mortgage Loan or a Final Determination has been made with respect to the related
Mortgage Loan or the related Mortgage Loan or REO Property is otherwise
liquidated or disposed). 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, Class A-J and
Class A-M 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, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-AB Certificates and the Class A-5 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 or the Class CP Certificates, as applicable, 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 CP 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 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, and then to the REMIC I Regular Interest
LA-1-3, 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, and then to the REMIC I Regular Interest LA-2-3, 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; (iv) the Class A-4 Certificates, first to the REMIC I Regular
Interest LA-4-1, second to the REMIC I Regular Interest LA-4-2, third to the
REMIC I Regular Interest LA-4-3, fourth to the REMIC I Regular Interest LA-4-4,
and then to the REMIC I Regular Interest LA-4-5, in each case, until reduced to
zero; (v) 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, fifth
to the REMIC I Regular Interest LA-AB-5, sixth to the REMIC I Regular Interest
LA-AB-6, seventh to the REMIC I Regular Interest LA-AB-7, and then to the REMIC
I Regular Interest LA-AB-8, in each case, until reduced to zero; (vi) the Class
A-5 Certificates, first to the REMIC I Regular Interest LA-5-1, second to the
REMIC I Regular Interest LA-5-2, and then to the REMIC I Regular Interest
LA-5-3, in each case, until reduced to zero; (vii) the Class D Certificates,
first to the REMIC I Regular Interest LD-1, second to the REMIC I Regular
Interest LD-2 and then to the REMIC I Regular Interest LD-3, in each case, until
reduced to zero; (viii) 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; (ix) the Class F
Certificates, first to the REMIC I Regular Interest LF-1, second to the REMIC I
Regular Interest LF-2 and then to the REMIC I Regular Interest LF-3, in each
case, until reduced to zero; (x) 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; (xi) 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, 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).
Realized Losses or Additional Trust Fund Expenses allocable to the
CP Component Mortgage Loan will, after the Uncertificated Principal Balance of
the Class CP Certificates have been reduced to zero, reduce the related
Uncertificated Principal Balance of the CP Component Mortgage Loan REMIC Senior
Regular Interest.
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 to the Class CP Certificates if such Realized
Losses were not attributable to the CP Component Mortgage Loan.
For the avoidance of doubt, if terms of the CP Component Mortgage
Loan are (subject to Section 3.20) 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 CP Component Mortgage Loan
is modified, and/or the Monthly Payment under the CP Component 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 CP Component Mortgage Loan Subordinate
Component prior to being allocated to the CP Component Mortgage Loan REMIC
Senior Regular Interest.
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 Master Servicer shall withdraw (i) from the Certificate Account, in respect
of each Mortgage Loan (other than the Fashion Show Mall Mortgage Loan) that
accrues interest on an Actual/360 Basis (other than the CP Component Mortgage
Loan), and (ii) from the Certificate Account, in respect of the CP Component
Mortgage Loan Senior Component and 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 CP Component Mortgage
Loan Senior Balance as of the Distribution 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.
Section 4.06 Excess Interest Distribution Account.
The Trustee shall establish and maintain the Excess Interest
Distribution Account in trust for the benefit of the Class V Certificateholders
whether or not such Certificates have an outstanding Class Principal Balance.
The Excess Interest Distribution Account shall be established and maintained at
all times as an Eligible Account, which the Trustee may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. The Excess Interest Distribution Account may be a sub-account of the
Distribution Account. Prior to the applicable Distribution Date, the Master
Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period. Following the distribution of Excess Interest to
Class V Certificateholders on the first Distribution Date after which there are
no longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
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-28; 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-4, Class A-AB, Class A-5, Class A-M and Class A-J 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 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 and Class
CP 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. The Class V Certificates will be issuable only in denominations
representing not less than 10% of the Percentage Interest. 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, (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. 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 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 60603) 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.
Purchasers of the Class CP Certificates in offshore transactions in reliance on
Regulation S must also be QIBs or Institutional Accredited Investors. 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 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 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, the Class V
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 the Class V
Certificates or 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 Class V Certificates or 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 Placement Agent 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 Fiscal Agent, the Underwriters, the Placement
Agent, 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 (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.
Each person owning a beneficial interest in a Certificate shall be
deemed to represent that neither such Person nor any owner of a five percent or
greater interest in such Person is an employer with employees covered by the
General Electric Pension Trust.
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 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, 2006, 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) Each investor in the Certificates will be deemed, by its
investment in such Certificates, to represent that neither (a) the investor nor
(b) any owner of a five percent or greater interest in the investor is an
employer with employees covered by the General Electric Pension Trust. Any
transfer in violation of this deemed representation will be void ab initio.
(m) 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 O
or Exhibit P, 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-4, Class A-AB,
Class A-5, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class XC, Class XP and Class CP 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, Euroclear or Clearstream.
(b) The Depositor, the Trustee, the Fiscal Agent, 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
Fiscal Agent, 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.
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.
(e) 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.
(f) 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(f).
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(f), (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) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, and (v) if delivery is to be taken in the form of a beneficial interest
in the Regulation S Global Certificate, a Regulation S 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.
(g) 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 Fiscal
Agent, 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 Fiscal Agent, 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
Non-Registered Certificates (except a Class V, Class R-I or Class R-II
Certificate) 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 Registered Certificates and the Class V, 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 MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special 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 and the REMIC Administrator
herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special 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 Loans and to perform its respective duties under
this Agreement.
(b) The Depositor, the Master Servicer, the Special 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 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 REMIC Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
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 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 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
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 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 that 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 (taking
into account the subordination of the CP Subordinate Component), or if a Whole
Loan is affected, the interests of the Certificateholders and the related
Companion Loan Noteholders (as a collective whole taking into account the
subordination of the CP Subordinate Component, the Mission City Corporate Center
B Note and the Regents Square I & II B Note, as applicable); provided, however,
that if a Whole Loan and/or a Companion Loan Noteholder is involved, such
expenses, costs and liabilities shall be payable out of the related Whole Loan
Custodial Account and shall also be payable out of the Certificate Account if
amounts on deposit in the related Whole Loan 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 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 Whole Loan 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. For the
avoidance of doubt, such expenses, costs or liabilities shall not be deemed to
relate solely to the Fashion Show Mall Pari Passu Note A-1 for the sole reason
that the related legal action was instituted by or against an Operating Advisor
(as defined in the Fashion Show Mall Pooling Agreement) or the Fashion Show Mall
Purchase Option Holder.
(b) The Fashion Show Mall Master Servicer, the Fashion Show Mall
Special Servicer, the Fashion Show Mall Depositor and the Fashion Show Mall
Trustee, and any of their respective directors, officers, employees or agents
(collectively, the "Fashion Show Mall Indemnified Parties"), shall be
indemnified by the Trust and held harmless against the Trust's pro rata share
(subject to the Fashion Show Mall 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 Fashion
Show Mall Whole Loan under the Fashion Show Mall Pooling Agreement or this
Agreement (but excluding any such losses allocable to the Fashion Show Mall Pari
Passu Note A-1), reasonably requiring the use of counsel or the incurring of
expenses other than any losses incurred by reason of any Fashion Show Mall
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 Fashion Show Mall 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 and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special 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 that 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 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 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 or the
REMIC Administrator, as the case may be, shall be evidenced by an Opinion of
Counsel to such effect, which 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 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(a) 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 Whole Loan Custodial Account any amount required
to be so deposited under this Agreement that 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 the Master Servicer
Remittance Date 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 Whole Loan Custodial Account or the applicable REO Account any amount
required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business 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 Reimbursement 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 or by any other party to this Agreement, 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 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 or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days.
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
Depositor or 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 51% 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 Loans and the proceeds thereof. 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
51% 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 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 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 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), 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 such Master Servicer shall continue
to serve as Master Servicer, if requested to do so by the Trustee, 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 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 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 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
this Section 7.01(f). 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 if the Trustee is directed to do so by the Directing
Certificateholder, the Trustee shall 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 that 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 Seller.
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or 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 neither the
Trustee nor the Fiscal Agent assumes any responsibility for their correctness.
Neither the Trustee nor the Fiscal Agent makes any 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 Loan or related document. Neither the
Trustee nor the Fiscal Agent shall 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 into 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. Neither the Trustee
nor the Fiscal Agent shall 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, the Fiscal Agent and any director, officer,
employee or agent of the Trustee or the Fiscal Agent, as applicable, or Person,
if any, who controls the Trustee or the Fiscal Agent, as applicable, 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 or the Fiscal Agent; 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 Xxxxx'x and
"AA-" by S&P , or, if a Fiscal Agent meeting the requirements of Section 8.14 is
then currently acting in such capacity, not less than "A" by Xxxxx'x and "A" 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 and all
Certificateholders and 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 or the Fiscal Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Fiscal
Agent 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 and successor fiscal agent, if
applicable, acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the Trustee and the Fiscal
Agent so removed and to the successor trustee and successor fiscal agent, if
applicable. 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. Removal or resignation of the Trustee shall be deemed to be
simultaneous resignation of the Fiscal Agent.
(c) The Holders of Certificates entitled to at least 33-1/3% of the
Voting Rights may at any time remove the Trustee and the Fiscal Agent 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 and the Fiscal Agent
are removed under this Agreement without cause, all reasonable costs and
expenses incurred by the Trustee and the Fiscal Agent (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 holder of the Fashion
Show Mall Pari Passu Note A-1 of any resignation or removal of the Trustee and
appointment of a successor trustee.
Section 8.08 Successor Trustee and Fiscal Agent.
(a) Any successor trustee and successor fiscal agent, if applicable,
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 and predecessor fiscal agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee and predecessor fiscal agent shall become
effective and such successor trustee and successor fiscal agent, if applicable,
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 or fiscal agent, as
applicable, 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 or successor fiscal agent shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee or successor fiscal agent 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 and fiscal agent to the Depositor and the
Certificateholders.
Section 8.09 Merger or Consolidation of Trustee or Fiscal Agent.
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.
Any entity into which the Fiscal Agent 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 Fiscal Agent shall be a party, or any
entity succeeding to the corporate trust business of the Fiscal Agent, shall be
the successor of the Fiscal Agent, 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 Fiscal Agent shall
continue to be eligible under the provisions of Section 8.06. The successor to
the Fiscal Agent 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 .
(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, the 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 ten 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 ten 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 of 1933.
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 2006 and (iii) the Form 8-K with the following
attachments: (a) the Distribution Date Statements, and (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 XXXXX 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 XXXXX 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 2005, 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 Accountant's 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 Xxxxxxxx-Xxxxx 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 "Xxxxxxxx-Xxxxx
Certification") (which Xxxxxxxx-Xxxxx Certifications shall be signed by the
party or parties contemplated by this Section 8.13). Such Xxxxxxxx-Xxxxx
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 Xxxxxxxx-Xxxxx Certification. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx 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
Xxxxxxxx-Xxxxx Certification), to execute any Form 10-K or any Xxxxxxxx-Xxxxx
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 Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx 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
(d) to contribute are several in the proportions described in the preceding
sentence and not joint.
(f) In the event that any Companion Loan is securitized and the
trust fund (or similar vehicle) into which such Companion Loan is placed is then
subject to the reporting requirements of the Exchange Act (including without
limitation, the requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended),
each of the Master Servicer and the Special Servicer hereby agree to provide
reasonable cooperation (including without limitation, the provision of
Xxxxxxxx-Xxxxx Certifications in the form set forth on Exhibit L) to enable such
trust fund to comply with such reporting requirements applicable to such trust
fund.
Section 8.14 Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial
Fiscal Agent hereunder the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent hereunder. The Fiscal Agent shall at
all times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA-" from 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).
(b) The Fiscal Agent undertakes to make Advances as specifically set
forth hereunder and the Fiscal Agent shall not be liable except for the making
of Advances.
(c) No provision of this Agreement shall be construed to relieve the
Fiscal Agent from liability for its own negligent failure to act, bad faith or
its own willful misfeasance; provided, however, that (i) the duties and
obligations of the Fiscal Agent shall be determined solely by the express
provisions hereunder, and the Fiscal Agent shall not be liable except for the
performance of such duties and obligations, (ii) no implied covenants or
obligations shall be read into this Agreement against the Fiscal Agent, and in
the absence of bad faith on the part of the Fiscal Agent, the Fiscal Agent may
conclusively rely, as to the truth and correctness of the statements, or
conclusions expressed therein, upon any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Fiscal Agent by the Primary Servicer, the Master Servicer, the Special Servicer
or the Depositor and that on their fact do not contradict the requirements of
this Agreement, and (iii) the provisions of clauses (ii) and (iii) of Section
8.01(c) shall apply to the Fiscal Agent.
(d) The Fiscal Agent also shall have the benefit of provisions of
clauses (a), (b), (c), (d), (e), (f) and (h) of Section 8.02.
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
Illinois, and that it shall not move any Mortgage File outside the State of
Illinois, 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, the Fiscal Agent 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 the
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 Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor or the 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 the
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. In the
event that the Master Servicer, the Special Servicer or any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
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 Whole Loan is
involved, in the related Whole Loan 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 Whole Loan is involved, the related Whole Loan
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
Investment Grade Sequential Pay 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 CP Component Mortgage Loan Subordinate
Component) remaining in the Trust Fund by giving written notice to all the
parties hereto and each Controlling Holder no later than 60 days prior to the
anticipated date of exchange. In the event that the CP Component Mortgage Loan
Subordinate Component and the Class CP 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) does not require the Sole Pooled Certificateholder to
be the Holder of all Class CP Certificates but (ii) requires that all
Certificateholders (including, notwithstanding any statement in the Prospectus
Supplement to the contrary, the Holders of the Class CP Certificates), other
than the Class V, Class R-I and Class R-II Certificateholders, 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 Class CP Certificates refuse to participate in the exchange
described above, the Sole Pooled Certificateholder will have the option to
deposit into the Certificate Account an amount equal to the outstanding
Certificate Balance of the Class CP Certificates, which will result in a
prepayment of Class CP Certificates. Further, in the event that the Sole Pooled
Certificateholder elects to exchange all of its 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, the 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, the Trustee and Fiscal Agent 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 CP 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 Class CP 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 CP Certificates 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 CP Component Mortgage
Loan REMIC Senior Regular Interest 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 of
the 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
fifteenth day and not later than the twenty-fifth 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 fifth 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 CP Component Mortgage Loan REMIC Senior
Regular Interest 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)(iv) 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 the
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 CP Component Mortgage Loan REMIC Senior Regular Interest)
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 AND GRANTOR TRUST 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-4, Class A-AB, Class A-5, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O 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 Corresponding 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 CP Component Mortgage Loan REMIC Senior Regular Interest
and the Class CP 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 I Regular Interests and the REMIC II Regular Certificates (other than
the Class XP Certificates), the Class CP Certificates and the CP Component
Mortgage Loan REMIC Senior Regular Interest is the Rated Final Distribution
Date.
(d) The REMIC Administrator shall maintain separate accounting with
respect to the Component Mortgage Loan REMIC sufficient (i) to account for
distributions on the CP Component Mortgage Loan REMIC Senior Regular Interest as
assets of REMIC I, (ii) to account for distributions on the CP Component
Mortgage Loan Subordinate Component and the Class CP 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
CP Component Mortgage Loan, 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 CP Component
Mortgage Loan in excess amounts distributable in respect of the CP Component
Mortgage Loan REMIC Senior Regular Interest and the CP Component Mortgage Loan
REMIC Subordinate Regular Interest 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 Component Mortgage Loan REMIC Distribution Account or
the REMIC I Distribution Account, as applicable.
(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 CP Component Mortgage Loan Senior
Balance and the Certificate Principal Balance of the Class CP Certificates; the
CP 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 related 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); (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.
Section 10.05 Grantor Trust Administration.
The parties intend that the portion of the Trust Fund consisting of
the Excess Interest and the Excess Interest Distribution Account shall be
treated as a "grantor trust" under the Code, and the provisions thereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Trustee shall file or cause to be filed annually with the IRS together with
IRS Form 1041 or such other form as may be applicable and shall furnish or cause
to be furnished annually to the Holders of the Class V Certificates, their
allocable share of income with respect to Excess Interest as such amounts accrue
or are received, as the case may be, after the related Anticipated Repayment
Date. Under no circumstances shall the Trustee, the Master Servicer or the
Special Servicer have the power to vary the investment of the Class V
Certificateholders in the Grantor Trust to take advantage of variations in the
market rate of interest to improve their rate of return.
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) and (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; provided further that such
amendment shall not adversely affect in any material respect the rights and
obligations of the Mortgage Loan Seller without the Mortgage Loan Seller's
written consent; provided further that such amendment shall not adversely affect
in any material respect the rights and obligations of a Companion Loan
Noteholder without such Companion Loan Noteholder'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 or the Grantor Trust to fail
to qualify as a grantor trust 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 and each
Companion Loan Noteholder and the holder of the Fashion Show Mall Pari Passu
Note A-1.
(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.
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's 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 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., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx
(00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 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, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Servicing Manager,
telecopy number: (000) 000-0000, Reference: Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series
2005-2, with copy to: Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, Midland Loan Services,
Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for
communications by United States mail), Attention: President, telecopy
number: (000) 000-0000;
(iv) in the case of the Trustee and REMIC Administrator, LaSalle
Bank National Association, 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services Group -
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-6, telecopy number: (000) 000-0000;
(v) in the case of the Fiscal Agent, ABN AMRO Bank N.V., 000 Xxxxx
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities
and Trust Services Group, Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-6, telecopy
number: (000) 000-0000;
(vi) in the case of the Rating Agencies, (A) Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
CMBS--Monitoring, facsimile number (000) 000 0000; (B) Standard & Poor's
Ratings Services, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Commercial Mortgage Group Surveillance Manager,
telecopy number (000) 000-0000;
(vii) in the case of the initial Directing Certificateholder,
Anthracite Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and
Xxxxxx Xxxxxx, telecopy number: (000) 000-0000;
(viii) in the case of the initial Fashion Show Mall Pari Passu Note
A-1 Holder, Xxxxx Fargo Bank, N.A., as Trustee for the registered holders
of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-1, at Xxxxx Fargo Bank, N.A., 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services (CMBS), Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-1, telecopy number: (410)
715-2380;
(ix) in the case of the initial Fashion Show Mall Purchase Option
Holder, Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of
Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2005-1, at Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS), Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-1, telecopy number: (000) 000-0000;
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, the
Component Mortgage Loan REMIC Distribution Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, the Excess
Interest Distribution Account or the Excess Liquidation Proceeds Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the 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; and
(ii) any change in the location of the Certificate Account.
(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, any Controlling Holder, any
Companion Loan Noteholder or a Holder of a Non-Registered Certificate (except a
Class V, Class R-I or Class R-II Certificate) (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 Non-Registered Certificate (except a Class V,
Class R-I or Class R-II 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.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, any Controlling Holder, any Companion Loan Noteholder or any
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II 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.
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/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
Master Servicer
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL
ASSOCIATION,
Trustee and REMIC Administrator
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of June 2005, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxxx 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 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.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
--------------------------
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of June 2005, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxx known to me to be a
Principal of BANK OF AMERICA, N.A., 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.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
--------------------------
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 21st day of June 2005, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of Midland Loan Services, 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.
/s/ Xxxxx Xxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
June 11, 0000
--------------------------
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 28th day of June 2005, before me, Xxxxx Xxxxxxxx a notary
public in and for said State, personally appeared Xxxxxxx X. Xxxxxx, known to me
to be an Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION 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.
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
Notary Public
[SEAL]
My commission expires:
July 18, 0000
---------------------------------------
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 28th day of June 2005, before me Xxxxx Xxxxxxxx, a notary
public in and for said State, personally appeared Xxxxx X. Xxxx, First Vice
President and Xxxxxx X. Xxxxx, First Vice President respectively of ABN AMRO
BANK N.V., 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.
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
Notary Public
[SEAL]
My commission expires:
July 18, 2005
---------------------------------------
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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
4.0410 % per annum Certificate as of the Issue Date:
$23,600,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
June 1, 2005 Class A-1 Certificates as of the Issue
Date: $23,600,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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 2005-2
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
4.2470% per annum Certificate as of the Issue Date:
$137,100,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
June 1, 2005 Class A-2 Certificates as of the Issue
Date: $137,100,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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 2005-2
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
4.6110% per annum Certificate as of the Issue Date:
$236,800,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3 Certificates as of the Issue
June 1, 2005 Date: $236,800,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$206,700,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
June 1, 2005 Date: $206,700,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-4-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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-AB Certificate
CLASS A-SB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$66,510,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-AB Certificates as of the
June 1, 2005 Issue Date: $66,510,00
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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-5 Certificate
CLASS A-5 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$478,931,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-5 Certificates as of the Issue
June 1, 2005 Date: $478,931,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-5-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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-7
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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] [142,344,323]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XC Certificates as of the Issue Date:
June 1, 2005 $1,642,344,323
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
CUSIP No.: [__________](1)
Certificate No.: XC-[__] [__________](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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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.
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, the REMIC Administrator
and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-8
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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] [102,012,000]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XP Certificates as of the Issue Date:
June 1, 2005 $1,602,012,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
CUSIP No.: [__________](1)
Certificate No.: XP-[__] [__________](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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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) 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 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, the REMIC Administrator
and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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-9
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$164,234,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-M Certificates as of the Issue
June 1, 2005 Date: $164,234,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-M-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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-10
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$108,805,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-J Certificates as of the Issue
June 1, 2005 Date: $108,805,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: A-J-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
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:
LaSalle Bank National Association,
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 B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$43,111,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
June 1, 2005 Date: $43,111,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: B-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2005-2
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:
$16,423,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
June 1, 2005 Date: $16,423,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: C-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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:
$28,741,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
June 1, 2005 Date: $28,741,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: D-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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-14
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$16,423,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
June 1, 2005 Date: $16,423,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: E-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-15
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$20,530,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
June 1, 2005 Date: $20,530,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: F-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-16
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$18,477,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
June 1, 2005 Date: $18,477,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: G-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer and the Trustee and 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-17
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$18,476,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
June 1, 2005 Date: $18,476,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: H-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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 J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$8,212,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
June 1, 2005 Date: $8,212,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: J-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-19
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$6,159,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
June 1, 2005 Date: $6,159,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: K-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-20
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$6,159,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
June 1, 2005 Date: $6,159,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: L-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-21
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$4,106,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
June 1, 2005 Date: $4,106,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: M-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-22
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$2,053,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
June 1, 2005 Date: $2,053,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: N-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-23
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$10,265,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
June 1, 2005 Date: $10,265,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: O-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-24
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
[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:
$20,529,323
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
June 1, 2005 Date: $20,529,323
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: P-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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 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, the REMIC Administrator and the Fiscal Agent 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-25
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class: 100%
June 1, 2005
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: R-I-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
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 ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH, A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, N.A. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) 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 REMIC Administrator and the Fiscal Agent 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 upon 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 the Person entitled thereto, as such name and address
appear 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, 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.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (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 this Certificate 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 this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Plan or a Person
acting on behalf of or using the assets of a Plan, a Disqualified Organization,
a Non-United States Person or any Person the income of which 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 United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Xxxxxxx Mac, a majority of whose board of directors is not selected by
such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which 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 and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual 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.
A "Non United States Person" is (a) any Person other than a United States
Person or (b) any Person the income of which 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 United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in applicable Treasury regulations)
created or organized in, or under the laws of, the United States, any state
thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, 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 United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-26
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class: 100%
June 1, 2005
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: R-II-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
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 ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, N.A. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) 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, the REMIC Administrator and the Fiscal Agent 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 upon 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 the Person entitled thereto, as such name and address
appear 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, 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.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (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 this Certificate 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 this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Plan or a Person
acting on behalf of or using the assets of a Plan, a Disqualified Organization,
a Non-United States Person or any Person the income of which 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 United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Xxxxxxx Mac, a majority of whose board of directors is not selected by
such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which 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 and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual 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.
A "Non United States Person" is (a) any Person other than a United States
Person or (b) any Person the income of which 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 United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, 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 United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within
mentioned Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-27
Form of Class CP Certificate
CLASS CP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-1
[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
7.2080% per annum Certificate as of the Issue Date:
$5,000,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class CP Certificates as of the Issue
June 1, 2005 Date: $5,000,000
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: CP-[__] 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., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 INCOME 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 PLACEMENT AGENT 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.
IN THE ABSENCE OF (A) AN EVENT OF DEFAULT UNDER THE RELATED MORTGAGE LOAN
DOCUMENTS, (B) ACCELERATION OF THE CP COMPONENT MORTGAGE LOAN, (C) THE CP
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 CP COMPONENT MORTGAGE
LOAN, PRINCIPAL WILL BE PAID ON THE CP COMPONENT MORTGAGE LOAN SENIOR COMPONENT
AND THE CP COMPONENT MORTGAGE LOAN SUBORDINATE COMPONENT (AND THUS, TO THE CLASS
CP 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 CP COMPONENT MORTGAGE LOAN, PRINCIPAL
WILL BE PAID FIRST TO THE CP COMPONENT MORTGAGE LOAN SENIOR COMPONENT UNTIL ITS
OUTSTANDING PRINCIPAL BALANCE IS REDUCED TO ZERO AND THEN TO THE CP COMPONENT
MORTGAGE LOAN SUBORDINATE COMPONENT UNTIL THE PRINCIPAL BALANCE OF 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, the REMIC Administrator and the Fiscal Agent 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 CP Certificates are limited in right of distribution to certain
collections and recoveries respecting the CP 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 CP
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the CP 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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and the
Fiscal Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class CP Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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-28
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2005-2
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.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class: 100%
June 1, 2005
Cut-off Date: Initial Pool Balance: $1,642,344,324
June 1, 2005
Issue Date:
June 28, 2005
First Distribution Date:
July 11, 2005
Master Servicer:
Bank of America, N.A.
Special Servicer:
Midland Loan Services, Inc.
Trustee and REMIC Administrator: Fiscal Agent: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.: V-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION AND ABN AMRO BANK N.V. 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 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
INCOME 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).
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 EXCESS INTEREST RECEIVED ON THE MORTGAGE
POOL AS PROVIDED IN THE AGREEMENT.
This certifies that [________] is the registered owner of the Percentage
Interest evidenced by this Certificate (as specified above) 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 REMIC Administrator and the Fiscal Agent 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.
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 Fiscal Agent, 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 Fiscal Agent,
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 the 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 any
Component Mortgage Loan, the related Component Mortgage Loan Subordinate
Component(s). 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. In addition,
following the date on which the Class Principal Balances of the Investment Grade
Sequential Pay 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 remaining in the Trust Fund.
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, the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and Fiscal
Agent 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.
LaSalle Bank National Association,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within mentioned
Agreement.
Dated:
LaSalle Bank National Association,
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 Book Amount of Book Entry Notation
Date 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 B
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates,
Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2005-2
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling
and Servicing Agreement dated as of June 1, 2005 (the "Pooling and Servicing
Agreement"), by and 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, on behalf of the
holders of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-2 (the "Certificates"), in connection
with the transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents and
warrants to you and the addressees hereof as follows:
1. Check one of the following:*
|_| The Purchaser is an institutional "accredited investor" (an entity
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"). The Purchaser is aware that the transfer is being
made in reliance on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to paragraph (d)(4)(i)
of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act and
applicable state securities laws, pursuant to any other exemption from the
registration requirements of the 1933 Act and applicable state securities laws,
subject in the case of this clause (ii) to (w) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (x) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the 1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the 1933 Act and other applicable laws
and (z) a written undertaking to reimburse the Trust for any costs incurred by
it in connection with the proposed transfer. The Purchaser understands that the
Certificate (and any subsequent Certificate) has not been registered under the
1933 Act, by reason of a specified exemption from the registration provisions of
the 1933 Act which depends upon, among other things, the bona fide nature of the
Purchaser's investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum relating to
the Certificates (the "Private Placement Memorandum") and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Certificate. The Purchaser has attached hereto [(i) a duly executed IRS Form
W-8BEN (or successor form), which identifies such Purchaser as the beneficial
owner of the Certificate and states that such Purchaser is not a U.S. Tax
Person, (ii) two duly executed copies of IRS Form W-8IMY (with all appropriate
attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI (or
successor form), which identify such Purchaser as the beneficial owner of the
Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Form [W-8BEN, IRS Form W-8IMY
or IRS Form W-8ECI, as the case may be]**, any applicable successor IRS forms,
or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Tax Person" means a citizen or resident
of the United States for United States federal income tax purposes, a
corporation or partnership (except to the extent provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate the income
of which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such 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. Tax Persons).
8. Please make all payments due on the Certificates:***
-------------
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R-I and Class R-II.
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
|_| (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank: _________________________________________
ABA#: _________________________________________
Account #: _____________________________________
Attention: _____________________________________
|_| (b) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
_________________________________
[The Purchaser]
By: _____________________________
Name:
Title:
Dated:
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of America
Commercial Mortgage Inc. Class R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 2005-2, evidencing a ____% Percentage Interest in the Class
to which it belongs (the "Residual Certificate")), a
__________________________________ duly organized and validly existing under the
laws of [the State of ____] [the United States], on behalf of which he/she makes
this affidavit. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Residual Certificate was issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a "non United States person". (For this purpose:
(i) a "disqualified organization" means the United States or a possession
thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation or partnership created or organized in, or
under the laws of, the United States, any state or the District of Columbia,
including any 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 United States persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a "disqualified organization", on
the agent; (iii) that the person otherwise liable for the tax shall be relieved
of liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a "disqualified organization" and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulations Section 1.860E-1(c) and
that the transferor of a "non-economic residual interest" will remain liable for
any taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
______________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificate is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee will not cause income to be attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other United States
person.
13. Check the applicable box:
|_| The present value of the anticipated tax liabilities associated
with holding the Residual Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of U.S.
Treasury Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates, prepayment and
loss assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
|_| None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 20__.
[NAME OF TRANSFEREE]
By: ______________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________, 20__.
_________________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 20__.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 20___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services- Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-2, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which it
belongs
-------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "Residual Certificate"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 2005, by and 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. All terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby represents and warrants to you, as Certificate Registrar,
that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificate by the Transferor to the Transferee is or will be to impede
the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit C-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
_________________________________
(Transferor)
By: _____________________________
Name:
Title:
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of June 1, 2005 (the "Pooling and Servicing Agreement"), by
and 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, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name:____________________________________
Address:_________________________________________
Prospectus No.:____________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
________________________________________________________________________________
Reason for requesting file (or portion thereof):
_______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with the Mortgage Loan that
are required to be credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
_______ 2. The Mortgage Loan is being foreclosed.
_______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[BANK OF AMERICA, N.A.]
By: _____________________________
Name:
Title:
Phone:
[MIDLAND LOAN SERVICES, INC.]
By: _____________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
___________________________________________
___________________________________________
___________________________________________
Attention: _______________________________
Phone: __________________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2005-2
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2005-2, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of June 1, 2005 (the "Pooling and Servicing Agreement"), by and 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. Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser either is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement Income
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 (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
any such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than (except with respect to the Class V Certificates and the
Residual Certificates) an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under both Sections I and III of
Prohibited Transaction Class Exemption 95-60, or (except with respect to the
Class V Certificates and the Residual Certificates) will deliver the opinion
contemplated by 3 below.
2. Except for the Class V Certificates and the Residual Certificates
(which may not transferred unless the Purchaser can make the representation
described in 1 above), the Purchaser is purchasing Certificates, which at the
time of purchase are rated "BBB-" or better by at least one of Fitch, Inc.,
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. or Xxxxx'x Investors Service, Inc., and the Purchaser (a) is purchasing the
Certificates pursuant to Prohibited Transaction Exemption 93-31 and (b) is an
"accredited investor" as defined in Rule 501(a)(1) of Regulation D of the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
3. Except for the Class V Certificates and the Residual Certificates
(which may not transferred unless the Purchaser can make the representation
described in 1 above), the Purchaser understands that if the Purchaser is a
Person referred to in 1(a) or (b) above and cannot make the representation in 2
above, such Purchaser is required to provide to the Certificate Registrar an
opinion of counsel 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 Fiscal Agent, the Master Servicer, the Special
Servicer, the Placement Agent 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 Pooling and
Servicing Agreement, which Opinion of Counsel will not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Placement Agent, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
_____________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Re: Pooling and Servicing Agreement dated as of June 1, 2005 (the
"Agreement") by and 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, for the Certificateholders of Commercial
Mortgage Pass-Through Certificates, Series 2005-2
-------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in the definition of "Mortgage File" are in its possession or the possession of
a Custodian on its behalf, or each Mortgage Loan Seller has otherwise satisfied
the delivery requirements in respect of such documents in accordance with
Section 2.01(b) and (ii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed, and relate to
such Mortgage Loan.
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) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
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) of the Agreement. Furthermore, except as expressly provided
in Section 2.02(b) of the Agreement, 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.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the Agreement.
Respectfully,
[Name]
[Title]
cc: Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation
EXHIBIT G
FORM OF DISTRIBUTION DATE STATEMENT
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
000 X. XxXxxxx Xxxxxx Xxxxx 0000 Series 2005-2 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Administrator: Analyst:
Reporting Package Table of Contents
--------------------------------------------------------
Issue Id: BACM0502
Monthly Data File Name:
BACM0502_YYYYMM_3.zip
--------------------------------------------------------
--------------------------------------------------------
Page(s)
REMIC Certificate Report
Bond Interest Reconciliation
Cash Reconciliation Summary
15 Month Historical Loan Status Summary
15 Month Historical Payoff/Loss Summary
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
--------------------------------------------------------
--------------------------------------------------------
Closing Date: 06/28/2005
First Payment Date: 07/11/2005
Assumed Final Payment Date:
--------------------------------------------------------
Contact Information
-------------------
Depositor: Banc of America Commercial Mortgage Inc.
Underwriter: Banc of America Securities LLC
Master Servicer: Bank of America, N.A.
Special Servicer: Midland Loan services, Inc.
Rating Agency: Fitch Ratings/ Standard & Poor's Ratings Services
Information is available for this issue from the following sources
------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
LaSalle Factor Line (000) 000-0000
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
WAC: Next Payment: 08/10/2005
WA Life Term: Record Date: 06/30/2005
WA Amort Term: ABN AMRO Acct: XX-XXXX-XX-X
Current Index:
Next Index: REMIC Certificate Report
Original Opening Principal Principal Negative
Class Face Value (1) Balance Payment Adj. or Loss Amortization
CUSIP Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000
----- --------- --------- --------- --------- ---------
0.00 0.00 0.00 0.00 0.00
Closing Interest Interest Pass-Through
Class Balance Payment Adjustment Rate (2)
CUSIP Per 1,000 Per 1,000 Per 1,000 Next Rate (3)
----- --------- --------- --------- -------------
0.00 0.00 0.00
-------------------------------
Total P&I Payment 0.00
-------------------------------
Notes:
(1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest equals
Accrual
(3) Estimated
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Bond Interest Reconciliation
Deductions
---------------------------------------------------
Accrued Accrued Add. Deferred &
------------- Certificate Allocable Trust Accretion Interest
Class Method Days Interest PPIS Expense(1) Interest Losses
----- ------ ---- -------- ---- ---------- -------- ------
0.00 0.00 0.00 0.00 0.00
Additions
--------------------------------------- Remaining
Prior Prepay- Other Distributable Interest Outstanding Credit Support
Int. Short- ment Interest Certificate Payment Interest -----------------------
Class falls Due Penalties Proceeds(2) Interest Amount Shortfalls Original Current(3)
----- --------- --------- ----------- -------- ------ ---------- -------- ----------
0.00 0.00 0.00 0.00 0.00 0.00
(1) Additional Trust Expenses are fees allocated directly to the bond resulting
in a deduction to accrued interest and not carried as an outstanding
shortfall.
(2) Other Interest Proceeds include default interest, PPIE and Recoveries of
Interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Cash Reconciliation Summary
------------------------------------------------
Interest Summary
------------------------------------------------
Current Scheduled Interest
Less Deferred Interest
Less PPIS Reducing Scheduled Int
Plus Gross Advance Interest
Less ASER Interest Adv Reduction
Less Other Interest Not Advanced
Less Other Adjustment
------------------------------------------------
Total
------------------------------------------------
Unscheduled Interest:
------------------------------------------------
Prepayment Penalties
Yield Maintenance Penalties
Other Interest Proceeds
------------------------------------------------
Total
------------------------------------------------
Less Fees Paid to Servicer
Less Fee Strips Paid by Servicer
------------------------------------------------
Less Fees & Expenses Paid By/To Servicer
------------------------------------------------
Special Servicing Fees
Workout Fees
Liquidation Fees
Interest Due Serv on Advances
Non Recoverable Advances
Misc. Fees & Expenses
------------------------------------------------
Plus Trustee Fees Paid by Servicer
------------------------------------------------
Total Unscheduled Fees & Expenses
------------------------------------------------
Total Interest Due Trust
------------------------------------------------
Less Fees & Expenses Paid By/To Trust
------------------------------------------------
Trustee Fee
Fee Strips
Misc. Fees
Interest Reserve Withholding
Plus Interest Reserve Deposit
------------------------------------------------
Total
------------------------------------------------
Total Interest Due Certs
------------------------------------------------
------------------------------------------------
Principal Summary
------------------------------------------------
Scheduled Principal:
Current Scheduled Principal
Advanced Scheduled Principal
------------------------------------------------
Scheduled Principal
------------------------------------------------
Unscheduled Principal:
Curtailments
Advanced Scheduled Principal
Liquidation Proceeds
Repurchase Proceeds
Other Principal Proceeds
------------------------------------------------
Total Unscheduled Principal
------------------------------------------------
Remittance Principal
------------------------------------------------
Remittance P&I Due Trust
------------------------------------------------
Remittance P&I Due Certs
------------------------------------------------
------------------------------------------------
Pool Balance Summary
------------------------------------------------
Balance Count
------- -----
Beginning Pool
Scheduled Principal
Unscheduled Principal
Deferred Interest
Liquidations
Repurchases
------------------------------------------------
Ending Pool
------------------------------------------------
------------------------------------------------
Servicing Fee Summary
------------------------------------------------
Current Servicing Fees
Plus Fees Advanced for PPIS
Less Reduction for PPIS
Plus Delinquent Servicing Fees
------------------------------------------------
Total Servicing Fees
------------------------------------------------
------------------------------------------------
PPIS Summary
------------------------------------------------
Gross PPIS
Reduced by PPIE
Reduced by Shortfalls in Fees
Reduced by Other Amounts
------------------------------------------------
PPIS Reducing Scheduled Interest
------------------------------------------------
PPIS Reducing Servicing Fee
------------------------------------------------
PPIS Due Certificate
------------------------------------------------
------------------------------------------------
Advance Summary (Advance Made by Servicer)
------------------------------------------------
Principal Interest
--------- --------
Prior Outstanding
Plus Current Period
Less Recovered
Less Non Recovered
------------------------------------------------
Ending Outstanding
------------------------------------------------
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Asset Backed Facts 15 Month Historical Loan Status Summary
Delinquency Aging Categories
-------------------------------------------------------------------------------------------------------------
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
Date # Balance # Balance # Balance # Balance # Balance
------------ ------------------ ------------------ ----------------- ------------------ ------------------
07/11/05
Special Event Categories (1)
---------------------------------------------------------------------
Distribution Modifications Specially Serviced Bankruptcy
Date # Balance # Balance # Balance
------------ ------------------ ------------------- ------------------
07/11/05
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Asset Backed Facts 15 Month Historical Payoff/Loss Summary
Distribution Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct. (2) Liquidations (2)
Date # Balance # Balance # Amount # Balance # Balance
------------ ----------------- ----------------- ---------------- --------------------- -----------------
07/11/05
Distribution Realized Losses (2) Remaining Term Curr Weighted Avg.
Date # Amount Life Amort. Coupon Remit
------------ ------------------- ---------------- ---------------------
07/11/05
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Historical Collateral Level Prepayment Report
Remaining Term
Disclosure Distribution Initial Payoff Penalty Prepayment Maturity Property -------------- Note
Control # Date Balance Code Amount Amount Date Date Type State DSCR Life Amort. Rate
---------- ------------ ------- ---- ------ ------- ---------- -------- -------- ----- ---- ---- ------ ----
---------- ------------ ------- ---- ------ ------- ---------- -------- -------- ----- ---- ---- ------ ----
Cumulative 0 0
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Delinquent Loan Detail
Disclosure Paid Current Outstanding Out. Property Special
Doc Thru P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
---------- ---- ------- ----------- ------------- --------------- ------------- ----------- ---------- ----
A. P&I Advance - Loan in Grace Period 1. P&I Advance - Loan delinquent 1 month
B. P&I Advance - Late Payment but < one month delinq 2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
** Outstanding P&I Advances include the current period P&I Advance
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of Principal Balances
Current Scheduled # of Scheduled % of Weighted Average
Balances Loans Balance Balance Term Coupon DSCR
----------------- ----- --------- ------- ---- ------ ----
----------------- ----- --------- ------- ---- ------ ----
0 0 0.00%
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
Distribution of Remaining Term (Fully Amortizing)
Fully Amortizing # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance Term Coupon DSCR
---------------- ----- --------- ------- ---- ------ ----
---------------- ----- --------- ------- ---- ------ ----
0 0 0.00%
Minimum Remaining Term
Maximum Remaining Term
Distribution of Mortgage Interest Rates
Current Mortgage # of Scheduled % of Weighted Average
Interest Rate Loans Balance Balance Term Coupon DSCR
---------------- ----- --------- ------- ---- ------ ----
---------------- ----- --------- ------- ---- ------ ----
0 0 0.00%
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
Distribution of Remaining Term (Balloon)
Balloon # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance Term Coupon DSCR
-------------- ----- --------- ------- ---- ------ ----
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
-------------- ----- --------- ------- ---- ------ ----
0 0 0.00%
Minimum Remaining Term 0
Maximum Remaining Term 0
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date:
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date:
Series 2005-2 Prior Payment:
Next Payment:
Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of DSCR (Current)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
-------------- ----- --------- ------- ---- --- ----
-------------- ----- --------- ------- ---- --- ----
0 0 0.00%
Maximum DSCR
Minimum DSCR
Distribution of DSCR (Cutoff)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
-------------- ----- --------- ------- ---- --- ----
-------------- ----- --------- ------- ---- --- ----
0 0 0.00%
Maximum DSCR 0.00
Minimum DSCR 0.00
Geographic Distribution
# of Scheduled % of
State Loans Balance Balance WAMM WAC DSCR
-------------- ----- --------- ------- ---- --- ----
-------------- ----- --------- ------- ---- --- ----
0 0.00%
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date:
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date:
Series 2005-2 Prior Payment:
Next Payment:
Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of Property Types
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC DSCR
-------------- ----- --------- ------- ---- --- ----
-------------- ----- --------- ------- ---- --- ----
0 0 0.00%
Distribution of Amortization Type
Current Scheduled # of Scheduled % of
Balances Loans Balance Balance WAMM WAC DSCR
----------------- ----- --------- ------- ---- --- ----
----------------- ----- --------- ------- ---- --- ----
0 0 0.00%
Distribution of Loan Seasoning
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
--------------- ----- --------- ------- ---- --- ----
-------------- ----- --------- ------- ---- --- ----
0 0 0.00%
Distribution of Year Loans Maturing
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
-------------- ----- --------- ------- ---- --- ----
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009 & Longer
-------------- ----- --------- ------- ---- --- ----
0 0 0.00%
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date:
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date:
Series 2005-2 Prior Payment:
Next Payment:
Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Adjustable Rate Mortgage Loan Characteristics
Distribution of Maximum Rates
# of Scheduled % of
Maximum Rates Loans Balance Balance WAMM WAC DSCR
------------- ----- --------- ------- ---- --- ----
------------- ----- --------- ------- ---- --- ----
Distribution of Minimum Rates
# of Scheduled % of
Minimum Rates Loans Balance Balance WAMM WAC DSCR
------------- ----- --------- ------- ---- --- ----
------------- ----- --------- ------- ---- --- ----
Distribution of Payment Adjustment
Payment Adjustment # of Scheduled % of
Frequency Loans Balance Balance WAMM WAC DSCR
------------------ ----- --------- ------- ---- --- ----
------------------ ----- --------- ------- ---- --- ----
Distribution of Indices of Mortgage Loans
# of Scheduled % of
Indices Loans Balance Balance WAMM WAC DSCR
------------- ----- --------- ------- ---- --- ----
------------- ----- --------- ------- ---- --- ----
Distribution of Mortgage Loan Margins
# of Scheduled % of
Mortgage Loan Margins Loans Balance Balance WAMM WAC DSCR
--------------------- ----- --------- ------- ---- --- ----
--------------------- ----- --------- ------- ---- --- ----
Distribution of Rate Adjustment
Interest Adjustment # of Scheduled % of
Frequency Loans Balance Balance WAMM WAC DSCR
------------------- ----- --------- ------- ---- --- ----
------------------- ----- --------- ------- ---- --- ----
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Loan Level Detail
Operating Ending Spec.
Disclosure Property Statement Maturity Principal Note Scheduled Mod. Serv ASER
Control # Grp Type State DSCR NOI Date Date Balance Rate P&I Flag Flag Flag
---------- --- -------- ----- ---- --- --------- -------- --------- ---- --------- ---- ----- ----
---------- --- -------- ----- ---- --- --------- -------- --------- ---- --------- ---- ----- ----
W/Avg 0.00 0 0 0
Loan Prepayment
Disclosure Status -----------------------
Control # Code(1) Amount Penalty Date
---------- ------- ------ ------- ----
---------- ------- ------ ------- ----
0 0
* NOI and DSCR, if available and reportable under the terms of the Pooling and
Servicing Agreement, are based on information obtained from the related
borrower, and no other party to the agreement shall be held liable for the
accuracy or methodology used to determine such figures.
(1) Legend: A. P&I Adv - in Grace Period1. P&I Adv - delinquent 1 month 3. P&I Adv - delinquent 3+ months
B. P&I Adv - < one month xxx0.x X&X Adv - delinquent 2 months 4. Mat. Balloon/Assumed P&I
(1) Legend: 5. Prepaid in Full 7. Foreclosure 9. REO 11. Modification
6. Specially Serviced 8. Bankruptcy 10. DPO
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Specially Serviced (Part I) Loan Detail
Balance Remaining Term
Disclosure Transfer ------------------ Note Maturity ------------- Property NOI
Control # Date Scheduled Actual Rate Date Life Amort. Type State NOI DSCR Date
---------- -------- --------- ------ ---- -------- ---- ------ -------- ----- --- ---- ----
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Specially Serviced Loan Detail (Part II) Servicer Comments
Disclosure Resolution
Control # Strategy Comments
--------- ---------- --------
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Modified Loan Detail
Disclosure Modification Modification Modification
Control # Date Code Description
--------- ------------ ------------ ------------
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Realized Loss Detail
Beginning Gross Proceeds Aggregate Net
Distribution Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation
Period Control # Date Value Balance Proceeds Sched Principal Expenses * Proceeds
------------ ---------- --------- --------- --------- -------- --------------- ----------- -----------
------------ ---------- --------- --------- --------- -------- --------------- ----------- -----------
Current Total 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00
Net Proceeds
Distribution as a % of Realized
Period Sched. Balance Loss
------------ -------------- --------
------------ -------------- --------
Current Total 0.00
Cumulative 0.00
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
ABN AMRO Banc of America Commercial Mortgage Inc. Statement Date: 07/11/2005
LaSalle Bank N.A. Commercial Mortgage Pass-Through Certificates Payment Date: 07/11/2005
Series 2005-2 Prior Payment: N/A
Next Payment: 08/10/2005
Record Date: 06/30/2005
ABN AMRO Acct: XX-XXXX-XX-X
Appraisal Reduction Detail
Remaining Term Appraisal
Disclosure Appraisal Scheduled Reduction Note Maturity ------------- Property ------------
Control # Red. Date Balance Amount Rate Date Life Amort. Type State DSCR Value Date
---------- --------- --------- --------- ---- -------- ---- ------ -------- ----- ---- ----- ----
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Pooling and Servicing Agreement dated as of June 1, 2005 (the
"Agreement") by and 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, for the Certificateholders of Commercial
Mortgage Pass-Through Certificates, Series 2005-2
-------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number : ________________________________________
The results of such review should be returned to [_________________]
at the following address:
___________________________________
___________________________________
___________________________________
Phone:_____________________________
Fax:_______________________________
EXHIBIT I
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-2
------------------------------------------------------------
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of June 1, 2005, by and 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.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated _________, a copy of which is attached hereto, is effective.
Pursuant to Section 3.18(d) of the Pooling and Servicing Agreement and your
Purchase Option Notice, closing of [your] [_________'s] acquisition of Mortgage
Loan number ___ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By: __________________________________________
Name:
Title:
Option Holder's Acknowledgment
By: ______________________________________
Name:
Title:
Date:
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For any loan that is not among ten (10) largest loans in pool, and that has an
outstanding balance less than both (a) $20,000,000 and (b) 5% of outstanding
pool balance
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, N.A., in its capacity as Master Servicer (the "Master
Servicer") under the Pooling and Servicing Agreement dated as of June 1,
2005 (the "Pooling and Servicing Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the 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.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2005-2
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [Note: all terms in this
Certification must be conformed to terms used in the Pooling and Servicing
Agreement]
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the entire
principal balance of the Mortgage
Loan; or
____ a partial defeasance of a portion
of the principal balance of the
Mortgage Loan that represents and,
an allocated loan amount of
$____________ or _______% of the
entire principal balance of the
Mortgage Loan;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(a) The Mortgage Loan Documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all material
respects in completing the defeasance.
(b) The defeasance was consummated on __________, 20__.
(c) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are listed as
"Qualified Investments for `AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in Standard & Poor's Public Finance Criteria 2000, as amended to
the date of the defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if
they include a principal obligation, the principal due at maturity cannot vary
or change, and (v) are not subject to prepayment, call or early redemption.
(d) The Master Servicer received an opinion of counsel (from counsel
approved by the Master Servicer in accordance with the Servicing Standard) that
the defeasance will not result in an Adverse REMIC event.
(e) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a Single-Purpose
Entity (as defined in Standard & Poor's Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance (the "S&P Criteria"))
as of the date of the defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing Mortgage Loans
included in the pool.
(f) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined in the
S&P Criteria) in the name of the Defeasance Obligor, which account is maintained
as a securities account by a securities intermediary and has been pledged to the
Trustee.
(g) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to the trustee, (ii) require the
securities intermediary to make the scheduled payments on the Mortgage Loan from
the proceeds of the defeasance collateral directly to the Master Servicer's
collection account in the amounts and on the dates specified in the Mortgage
Loan Documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real property defeased,
increased by any defeasance premium specified in the Mortgage Loan Documents
(the "Scheduled Payments"), (iii) permit reinvestment of proceeds of the
defeasance collateral only in Permitted Investments (as defined in the S&P
Criteria), (iv) permit release of surplus defeasance collateral and earnings on
reinvestment from the pledged securities account only after the Mortgage Loan
has been paid in full, if any such release is permitted, (v) prohibit transfers
by the Defeasance Obligor of the Defeasance Collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from sources
other than the defeasance collateral or other assets of the Defeasance Obligor
of all fees and expenses of the securities intermediary for administering the
defeasance and the securities account and all fees and expenses of maintaining
the existence of the Defeasance Obligor.
(h) The Master Servicer received written confirmation from a firm of
independent certified public accountants, who were approved by the Master
Servicer in accordance with the Servicing Standard stating that (i) revenues
from the defeasance collateral (without taking into account any earnings on
reinvestment of such revenues) will be sufficient to timely pay each of the
Scheduled Payments after the defeasance including the payment in full of the
Mortgage Loan (or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan, on its
Anticipated Repayment Date), (ii) the revenues received in any month from the
defeasance collateral will be applied to make Scheduled Payments within four (4)
months after the date of receipt, and (iii) interest income from the defeasance
collateral to the Defeasance Obligor in any calendar or fiscal year will not
exceed such Defeasance Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such year.
(i) The Mortgage Loan is not among the ten (10) largest loans in the
pool. The entire principal balance of the Mortgage Loan as of the date of
defeasance was less than both $20,000,000 and five percent of pool balance,
which is less than 5% of the aggregate Certificate Balance of the Certificates
as of the date of the most recent Paying Agent's Monthly Certificateholder
Report received by us (the "Current Report").
(j) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $__________________, which is _____% of the
Aggregate Certificate Balance of the Certificates as of the date of the Current
Report.
3. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
4. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
5. Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice
and Certification to be executed as of the date captioned above.
BANK OF AMERICA, N.A.
By:___________________________________
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2005-2 (the "Trust")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all reports
on Form 8-K containing distribution date reports filed in respect of periods
included in the year covered by this annual report, of the Trust formed pursuant
to the Pooling and Servicing Agreement (the ("Pooling and Servicing Agreement")
dated as of June 1, 2005 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;
2. Based on my knowledge, the information in these reports, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer and the Special Servicer under
the Pooling and Servicing Agreement is included in these reports;
4. I am responsible for reviewing the activities performed by the
Master Servicer and the Special Servicer under the Pooling and Servicing
Agreement and based upon the review required under the Pooling and Servicing
Agreement, and except as disclosed in the report, the Master Servicer and
Special Servicer have fulfilled their obligations under the Pooling and
Servicing Agreement; and
5. I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special Servicer's
compliance with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ________, as
Special Servicer, ________, as Trustee and REMIC Administrator, ________, as
Sub-Servicer, ________, and as Sub-Servicer, ________.
Date: _________________________
_________________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2005-2 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2005-2
------------------------------------------------------------
I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as [Trustee/Master
Servicer/Special Servicer] under that certain Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") dated as of June 1, 2005, 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, certify to [identify the individual signing the
Xxxxxxxx-Xxxxx Certification], the Depositor and its partners, representatives,
affiliates, members, managers, directors, officers, employees and agents, to the
extent that the following information is within our normal area of
responsibilities and duties under the Pooling and Servicing Agreement, and with
the knowledge and intent that they will rely upon this certification, that:
1. [To be certified by the Trustee] [I have reviewed the annual
report on Form 10-K for the fiscal year [___] (the "Annual Report"), and all
reports on Form 8-K containing statements to certificateholders filed in respect
of periods included in the year covered by that Annual Report (collectively with
the Annual Reports, the "Reports"), of the Trust;]
2. [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, to the extent prepared by the [Trustee] (but not
including any information provided to the [Trustee] by the Master Servicer or
Special Servicer, other than to the extent that such information has been
aggregated or manipulated by [Trustee]), taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period covered by
the Annual Report;]
3. [To be certified by the Trustee] [To the best of my knowledge,
the distribution or servicing information required to be provided to the Trustee
by the Master Servicer and the Special Servicer under the Pooling and Servicing
Agreement for inclusion in the Reports is included in the Reports;]
4. [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by [the Master Servicer]
[the Special Servicer] under the Pooling and Servicing Agreement and based upon
my knowledge and the annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed in the annual report on Form 10-K
for the fiscal year [___], or in any reports on Form 8-K containing statements
to certificateholders filed in respect of periods included in the year covered
by that annual report, [the Master Servicer] [the Special Servicer] has
fulfilled its obligations under the Pooling and Servicing Agreement, including
the provision of all Reports required to be submitted to the Trustee thereunder,
and that, to the knowledge of [the Master Servicer] [the Special Servicer],
based upon the review required under the Pooling and Servicing Agreement with
respect to [the Master Servicer] [the Special Servicer], such reports do not
contain any material misstatements or omissions; and]
5. [To be certified by the Master Servicer and Special Servicer] [I
have disclosed to [the Master Servicer's] [the Special Servicer's] certified
public accountants all significant deficiencies relating to the compliance of
[the Master Servicer] [the Special Servicer] with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure as set
forth in the Pooling and Servicing Agreement.
Date: _________________________
[NAME OF COMPANY]
_________________________________
[Signature]
[Title]
EXHIBIT M
FORM OF REGULATION S CERTIFICATE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-2, Class [ ]
-------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of June 1, 2005 (the "Pooling and Servicing Agreement"), by and 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. Capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ) with the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation S Global Certificate (ISIN No. ).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and the Certificates and (i) with respect to transfers
made in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
1. the offer of the Certificates was not made to a person in the
United States,
[2. at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States,]*
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
3. 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
4. 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, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By: _____________________________
Name:
Title:
Dated: _________ __, __
-------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-2, Class [ ]
---------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2005 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as master servicer (the "Master Servicer"), Midland Loan
Services, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and as REMIC Administrator, and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that:
1. the offer of the Certificates was not made to a person in the
United States,
[2. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]
3. 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
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: _____________, ___
-------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM DOMESTIC
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-2, Class [ ]
------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2005 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as master servicer (the "Master Servicer"), Midland Loan
Services, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and as REMIC Administrator, and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
1. the offer of the Certificates was not made to a person in the
United States,
[2. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]
3. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]*
4. 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
5. 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, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in Rule
144 under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By: _____________________________
Name:
Title:
Dated: ______ __, ____
-------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO DOMESTIC GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities & Trust Services - Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2005-2
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-2, Class [ ]
----------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2005 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as master servicer (the "Master Servicer"), Midland Loan
Services, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and as REMIC Administrator, and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC., Bear, Xxxxxxx & Co., Inc.
and Barclays Capital Inc., the Initial Purchasers of the offering of the
Certificates.
[Insert Name of Transferor]
By: _____________________________
Name:
Title:
Dated: ______ __, ____
SCHEDULE I
Mortgage Loan Schedule
Sequence Loan Loan
Number Number Seller Property Name
-------- ------ ------ -------------------------------------------------------------
1 58620 XxxX Xxxxxxx Xxxx Xxxx
0 00000 XxxX NYU Housing - 00 Xxxxxxxxx Xxxxxx
3.1 00000 XxxX Xxxxxx Xxxxx - Xxxxxx, XX
3.2 00000 XxxX Xxxxxx Xxxxx - Xxxxx, XX
3 58611 BofA Canyon Ranch (Roll Up)
4 58848 BofA Regents Square I & II
5 58470 BofA Phoenix Xxxxx X & XX
0 00000 XxxX 000 Xxxxx Xxxxxx
7 58623 BofA American Express Building - Minneapolis
8 58789 XxxX Xxxxx Xxxxxx Xxxxxxxx
0 00000 XxxX Asian Garden Mall
10 58665 BofA TV Guide Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
00 00000 BofA Mission City Corporate Center
12 58886 BofA Mountain Farms Shopping Center
13.1 58449 BofA Captain's Portfolio - Southwest Freeway
13.2 58449 BofA Captain's Portfolio - Xxxxxx Creek
13.3 58449 BofA Captain's Portfolio - Briar Hollow
13.4 58449 BofA Captain's Portfolio - North Loop
13.5 58449 BofA Captain's Portfolio - Westheimer Oaks Village Shopping Center
13.6 58449 BofA Captain's Portfolio - Post Oak Place
13 58449 BofA Captain's Portfolio (Roll Xx)
00 00000 XxxX XXX Systems
15 58857 XxxX Xxxxx Xxxx
00 00000 XxxX American Express Building - Salt Lake City
17 58797 BofA The Grand Rivage at Xxxxxxx Lakes
18 58852 XxxX Xxxxxx'x Xxxxxxxxx-Xxxxxx
00 00000 XxxX Cuyahoga Falls Market Center
Sub Total Crossed Loans
20 13022 XxxX Xxxxxxx Xxxxxx
00 00000 XxxX American Express Building - Ontario
22 58830 BofA Crossroads at Xxxxxx
00 00000 XxxX Xxxxx Xxxx Xxxxxxxxx Xxxxx
00 00000 XxxX Xxxxxx Xxxx MOB
25 58736 BofA 00 Xxxx 00xx Xxxxxx
26 58856 XxxX Xxxxx Xxx Xxx
00 00000 XxxX Bank of America West Building
28 58826 XxxX Xxxxxxxxxx XX Xxxxxx Xxxxxxxx
00 00000 XxxX Xxx Xxxxx Xxxx Xxxx
00 00000 XxxX Vail Club Xxxxxxxxxx
00 00000 XxxX Xxxx Decatur Plaza
32 58824 XxxX Xxxxxxxxxxx Xxxxxx Xxxxxxxx
00 00000 XxxX Coronado Shopping Center- Santa Fe
34.1 00000 XxxX Xxxxxxxxx-Xxxxxx Xxxx Xxxxxxx
34.2 58723 BofA Residence Inn-Denver Park Xxxxxxx
34 58723 BofA CSM - Denver Properties (Roll Xx)
00 00000 XxxX Ocean Dorado
36 58696 BofA CSM - Hilton Garden Inn - Scottsdale
37 58792 XxxX Xxxxxxxxxx (Xxxxxxx)
00 00000 XxxX Ths Shops at Cascade & Xxxxxxxx
00 00000 XxxX The Xxxxxx Center
40 58941 XxxX Xxxxxxx Xxxxx
00 00000 XxxX Xxxxx Square Apartments
42 58761 BofA Rancho San Diego Industrial Center
43 58809 XxxX Xxxxxxx Xxxx Xxxxxxxx Xxxxxx
00 00000 XxxX Tanglewood Commons
45 58725 BofA Smart Self Storage
46 58727 BofA Sorrento Mesa
Sub Total Crossed Loans
47 12868 BofA Gateway Shopping Center - Arlington
48 58806 XxxX Xxxxxxxxx Xxxxxx Xxxxxx
00 00000 XxxX ASAP Self Storage
50.1 58911 BofA Xxxxxxxx CVS Pool #1 - CVS-Bradenton
50.2 58911 BofA Xxxxxxxx CVS Pool #1 - XXX-Xxxxxx
00 00000 XxxX Xxxxxxxx CVS Pool #1 (Roll Up)
51 12681 XxxX Xxxxxxxxx Xxx & Xxxxxx Xxxxxx
00 00000 XxxX 110 and 000 Xxxxxxx Xxxxx
53 58835 XxxX Xxx Xx Xxxxx Xxxxxxxxxx
00 00000 XxxX Xxxx Xxxxxx X & XX
00 00000 BofA Xxxx Xxxxxxxxxx
00 00000 XxxX Xxxx Sarasota Self Storage
57 58782 BofA Walgreens - Garden City, MI
58 58748 BofA Best Florida Storage II
59 9753 XxxX Xxxxxxxxx Xxxxxxx
00 00000 XxxX Metro 502 Self Storage
61 58842 XxxX Xxxxxxxxxx Xxxxxxxxxx
00 00000 XxxX Shurgard - Woodland Hills
63 58433 XxxX Xxxxxxxx - Xxxxx
00 00000 XxxX Xxxxxxxx Xxxxxxx - Xxxxxxxxx
00 00000 XxxX Barclay Apartments
66 13159 XxxX Xxxxxxx Xxxxx- Xxxxxxxx Xxxxxxxxx
00 00000 XxxX Xxxxxxxxxx Xxxx Xxxxxxxxxx
00 00000 XxxX Xxx Xxxxxxx Xxxxx Xxxxxxxxxx
00 00000 XxxX 000 Xxxxxxxxx Xxxxxxxxx
70 58914 XxxX Xxxxxx Xxxxx Xxxxxxxx Xxxxx
00 00000 BofA Sorrento Valley Self Storage
72 58589 BofA Xxxxxxx Xxxxx Xxxxxx Xxxxxx
00 00000 XxxX CVS - North Andover
74 12551 BofA Cedar East & Cypress Office
75 58682 XxxX Xxxxxxxxx Xxxx Xxxxxx
00 00000 XxxX All Safe Storage
77 58750 BofA Walgreens - Monroe, MI
78 10552 XxxX Xxxxxxxx Xxxxxxxx Xxxxxx
00 00000 XxxX Best Buy - Gwinnett County
80 12165 XxxX Xxxxxxx Xxx Xxxxxx
00 00000 XxxX World Wide Parts Building
82 11324 BofA 1st Security Storage Christiansburg
83 12090 BofA West Allis Tech Center
84 9668 BofA Silver Star Self Storage
85 12909 BofA Security Plus Self Storage & RV
86 11847 BofA U.S. Storage Centers
Totals/Weighted Average
Sequence Mortgage
Number Street Address City State Zip Code Rate (%)
-------- ----------------------------------------------------------- ------------------- ------- -------- --------
1 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx XX 00000 3.719%
2 00 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 5.510%
3.1 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxx XX 00000
3.2 000 Xxxxxx Xxxxxx Xxxxx XX 00000
3 Various Various Various Various 5.937%
4 4250 & 0000 Xxxxxxxxx Xxxxxx Xx Xxxxx XX 00000 4.736%
5 2901, 2909 & 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 4.588%
6 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000 5.482%
7 0000 Xxxxx 0xx Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 4.268%
8 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 5.037%
9 0000 Xxxxx Xxxxxx, 00000 & 00000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 5.065%
10 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000 5.578%
11 2355, 2365 & 0000 Xxxxxxxxx Xxxxx Xxx Xxxxx XX 00000 4.781%
12 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 5.070%
13.1 00000 Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
13.2 000 Xxxxxx Xxxxxx Xxxxxx XX 00000
13.3 00 Xxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
13.4 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000
13.5 0000-0000 Xxxxxxxxxx Xxxx and 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
13.6 0000 Xxxx Xxx Xxxxx Xxxxx Xxxxxxx XX 00000
13 Various Various TX Various 5.236%
14 00000 Xxxxxxxxx 00xx Xxxxxx and 0000 000xx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 5.001%
15 000 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 5.549%
16 0000 Xxxxx 0000 Xxxx Xxxxxxxxxxxx XX 00000 4.298%
17 0000 Xxxxx Xxxx Xxxxx Xxxxxxx XX 00000 5.028%
18 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 4.818%
19 000-000 Xxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000 4.668%
20 0000-000xx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 5.311%
21 000 XxXxxx Xxxxxx Xxxxxxx Xxxxxxx X0X 0X0 4.298%
22 0000 Xxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 5.186%
23 0000 Xxxxx Xxxxxxxxx & 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxx Xxxx XX 00000 5.638%
24 000 Xxx Xxxxx Xxxxx Xxxx Xxxx Xxxxxx XX 00000 5.210%
25 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 5.689%
26 0000 Xxxxx Xxx Xxx Xxxxxx Xxxxxxxxx XX 00000 5.220%
27 0000 Xxxxxxxxx Xxxxx Xxx Xxxxx XX 00000 5.410%
28 27121-27131 Xxxxx Xxxxxx Xxx Xxxx Xxxxxxxxxx XX 00000 5.235%
29 00000 Xxxx Xxxxxx Xxxxxxx Xxxx XX 00000 5.227%
30 0000 Xxxxxxxxxx Xxxx Xxxxxx XX 00000 5.220%
31 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 5.693%
32 00000-00000 Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxxx XX 00000 5.336%
33 000-000 Xxxxxxx Xxxx Xxxxx Xx XX 00000 5.219%
34.1 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
34.2 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
34 Various Xxxxxxxxx XX 00000 5.580%
35 1830 - 0000 Xxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 5.186%
36 0000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.580%
37 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 5.107%
38 3720, 0000 Xxxxxxx Xxxx & 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 5.253%
39 0 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.536%
00 Xxx Xxxxx Xxxxxxxx Xxxxx Xx. Xxxxx XX 00000 5.197%
41 000-000 Xxxx Xxxxx Xxxxxx Xxxxxx XX 00000 5.575%
42 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX 00000 5.380%
43 000-000 Xxxxx Xxxx Xxxxxx Xx Xxxxx XX 00000 5.125%
44 0000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 5.425%
45 000 Xxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx XX 00000 5.167%
46 0000 Xxxx Xxxx Xxxxxxxxx Xxx Xxxxx XX 00000 5.080%
00 0000-0000 000xx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 5.211%
48 11811 and 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 5.368%
49 00000 Xxxxxxxxx Xxxx Xxxx Xxxxx XX 00000 5.400%
50.1 0000 00xx Xxxxxx Xxxxxxxxx XX 00000
50.2 00000 Xxxxxx Xxxx Xxxxxx XX 00000
50 Various Various FL Various 5.399%
51 000 Xxxx Xxxxxxxx Xxxx Xxxxxx XX 00000 5.695%
52 110 and 000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 5.262%
53 0000 Xxxx 0xx Xxxxxx Xxx Xxxxxxx XX 00000 5.211%
54 131 and 000 Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 5.136%
55 100, 115, 126, 127 & 000 Xxxxxxx Xxxx and 000 Xxxxxxx Xxxxx Xxxx Xxxxxx XX 00000 5.204%
56 0000 Xxxxx Xxxx Xxxxxxxx XX 00000 5.452%
57 00000 Xxxx Xxxx Xxxxxx Xxxx XX 00000 5.925%
58 0000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 5.735%
59 20804-20806 Xxxxxxx-Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 5.543%
60 00000 Xxxxx Xxxxxxx Xxxx Xxxxx XX 00000 5.702%
61 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.213%
62 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx XX 00000 5.280%
63 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 5.220%
64 00000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000 5.318%
65 000 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 5.220%
66 2311, 2321 and 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 5.728%
67 0000 - 00xx Xxxxxx Xxxx Xxxxxxxxxx Xxxxx XX 00000 5.303%
68 000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 5.211%
69 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 5.500%
70 00000 Xxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 5.693%
71 00000 Xxxxxxxx Xxxxxx Xxxx Xxx Xxxxx XX 00000 5.110%
72 00000 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 4.366%
73 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000 5.780%
74 3117 and 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 5.577%
75 000 Xxxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX 00000 5.261%
76 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 5.382%
77 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 5.400%
78 0000-0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 5.781%
79 0000 Xxxxxxxx Xxxx Xxxx Xxxxxx XX 00000 5.100%
80 3204 and 0000-0000 Xxxxxxxx Xxx Xxx Xxxxxx XX 00000 5.587%
81 0000 Xxxxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 5.437%
82 0 Xxxxxx Xxxxx Xxxxx Xxxxxxxxxxxxxx XX 00000 5.735%
83 11214 - 00000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000 5.814%
84 0000 Xxxxx Xxxxx Xxxx Xxx Xxxxx XX 00000 5.595%
85 0000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 5.704%
86 00000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 5.711%
Remaining
Term To
Stated Stated Primary
Sequence Amortization Original Cut-off Maturity Maturity Due Monthly Administrative Servicing
Number Basis Balance Balance (months) Date Date Payment Fee Rate Fee Rate
-------- ------------ ------------ -------------- --------- --------- ---- -------- -------------- ---------
1 ACT/360 $145,000,000 $143,619,681 31 1/1/2008 1st $665,601 0.032% 0.020%
2 ACT/360 110,000,000 110,000,000 119 5/1/2015 1st 512,098 0.062% 0.050%
3.1 60,543,243 60,543,243 1st 0.010%
3.2 34,456,757 34,456,757 1st 0.010%
3 ACT/360 95,000,000 95,000,000 116 2/1/2015 1st 476,500 0.022% 0.010%
4 ACT/360 88,600,000 88,600,000 82 4/1/2012 1st 354,538 0.042% 0.030%
5 ACT/360 77,000,000 77,000,000 52 10/1/2009 1st 298,486 0.022% 0.010%
6 ACT/360 73,500,000 73,500,000 119 5/1/2015 1st 340,405 0.032% 0.020%
7 30/360 56,050,000 56,050,000 55 1/1/2010 1st 199,328 0.042% 0.030%
8 ACT/360 51,000,000 50,836,429 118 4/1/2015 1st 299,241 0.042% 0.030%
9 ACT/360 50,300,000 50,300,000 121 7/1/2015 1st 272,023 0.042% 0.030%
10 ACT/360 47,000,000 46,751,387 115 1/1/2015 1st 269,151 0.062% 0.050%
11 ACT/360 44,000,000 44,000,000 82 4/1/2012 1st 177,743 0.042% 0.030%
12 ACT/360 44,000,000 44,000,000 120 6/1/2015 1st 238,087 0.062% 0.050%
13.1 9,136,364 9,136,364 1st 0.050%
13.2 7,831,169 7,831,169 1st 0.050%
13.3 7,831,169 7,831,169 1st 0.050%
13.4 4,350,649 4,350,649 1st 0.050%
13.5 2,610,390 2,610,390 1st 0.050%
13.6 1,740,260 1,740,260 1st 0.050%
13 ACT/360 33,500,000 33,500,000 76 10/1/2011 1st 182,777 0.062% 0.050%
14 ACT/360 32,800,000 32,800,000 114 12/1/2014 1st 176,098 0.062% 0.050%
15 ACT/360 30,995,196 30,995,196 119 5/1/2015 1st 176,941 0.062% 0.050%
16 30/360 30,149,000 30,149,000 58 4/1/2010 1st 107,971 0.062% 0.050%
17 ACT/360 28,875,000 28,875,000 117 3/1/2015 1st 155,502 0.062% 0.050%
18 30/360 19,730,000 19,730,000 60 6/1/2010 1st 79,216 0.112% 0.100%
19 30/360 8,285,000 8,285,000 60 6/1/2010 1st 32,229 0.112% 0.100%
28,015,000 28,015,000
20 ACT/360 27,900,000 27,900,000 81 3/1/2012 1st 125,196 0.062% 0.050%
21 30/360 25,380,000 25,380,000 57 3/1/2010 1st 90,892 0.062% 0.050%
22 ACT/360 22,640,000 22,640,000 119 5/1/2015 1st 99,201 0.062% 0.050%
23 ACT/360 21,700,000 21,700,000 119 5/1/2015 1st 125,096 0.062% 0.050%
24 ACT/360 20,000,000 19,979,782 119 5/1/2015 1st 109,946 0.062% 0.050%
25 ACT/360 20,000,000 19,914,826 116 2/1/2015 1st 115,941 0.062% 0.050%
26 ACT/360 17,150,000 17,150,000 119 5/1/2015 1st 75,639 0.112% 0.100%
27 ACT/360 17,000,000 16,964,617 118 4/1/2015 1st 95,566 0.112% 0.100%
28 ACT/360 16,120,000 16,120,000 119 5/1/2015 1st 71,300 0.112% 0.100%
29 ACT/360 16,000,000 15,965,377 118 4/1/2015 1st 88,125 0.112% 0.100%
30 ACT/360 15,700,000 15,700,000 119 5/1/2015 1st 69,244 0.112% 0.100%
31 ACT/360 15,500,000 15,500,000 120 6/1/2015 1st 89,893 0.112% 0.100%
32 ACT/360 13,960,000 13,960,000 119 5/1/2015 1st 62,938 0.112% 0.100%
33 ACT/360 13,300,000 13,300,000 119 5/1/2015 1st 73,188 0.062% 0.050%
34.1 7,560,000 7,560,000 1st 0.100%
34.2 5,640,000 5,640,000 1st 0.100%
34 ACT/360 13,200,000 13,200,000 117 3/1/2015 1st 75,612 0.112% 0.100%
35 ACT/360 13,096,000 13,096,000 119 5/1/2015 1st 57,383 0.112% 0.100%
36 ACT/360 12,853,229 12,853,229 117 3/1/2015 1st 73,626 0.112% 0.100%
37 ACT/360 12,400,000 12,400,000 118 4/1/2015 1st 53,505 0.112% 0.100%
38 ACT/360 11,250,000 11,238,745 119 5/1/2015 1st 62,144 0.112% 0.100%
39 ACT/360 10,280,000 10,280,000 120 6/1/2015 1st 58,601 0.112% 0.100%
40 ACT/360 10,200,000 10,200,000 60 6/1/2010 1st 44,788 0.112% 0.100%
41 ACT/360 10,120,000 10,099,672 118 4/1/2015 1st 57,937 0.072% 0.060%
42 ACT/360 9,500,000 9,471,214 118 4/1/2015 1st 57,659 0.112% 0.100%
43 ACT/360 9,200,000 9,200,000 119 5/1/2015 1st 50,093 0.112% 0.100%
44 ACT/360 9,100,000 9,100,000 119 5/1/2015 1st 51,241 0.112% 0.100%
45 ACT/360 4,100,000 4,100,000 117 3/1/2015 1st 22,430 0.112% 0.100%
46 ACT/360 4,100,000 4,100,000 117 3/1/2015 1st 17,598 0.112% 0.100%
8,200,000 8,200,000
47 ACT/360 8,000,000 7,974,473 117 3/1/2015 1st 43,983 0.062% 0.050%
48 ACT/360 7,800,000 7,792,411 119 5/1/2015 1st 43,644 0.112% 0.100%
49 ACT/360 7,800,000 7,764,940 116 2/1/2015 1st 43,799 0.112% 0.100%
50.1 3,600,000 3,600,000 1st 0.100%
50.2 3,440,000 3,440,000 1st 0.100%
50 ACT/360 7,040,000 7,040,000 120 6/1/2015 1st 32,114 0.112% 0.100%
51 ACT/360 7,000,000 6,990,523 119 5/1/2015 1st 43,805 0.062% 0.050%
52 ACT/360 6,900,000 6,893,112 119 5/1/2015 1st 38,153 0.112% 0.100%
53 ACT/360 6,752,000 6,752,000 119 5/1/2015 1st 29,728 0.112% 0.100%
54 ACT/360 6,200,000 6,200,000 120 6/1/2015 1st 33,800 0.112% 0.100%
55 ACT/360 6,000,000 6,000,000 118 4/1/2015 1st 32,961 0.062% 0.050%
56 ACT/360 5,600,000 5,600,000 115 1/1/2015 1st 32,063 0.072% 0.060%
57 ACT/360 5,421,349 5,411,264 118 4/1/2015 1st 32,243 0.112% 0.100%
58 ACT/360 5,359,152 5,348,756 118 4/1/2015 1st 31,224 0.112% 0.100%
59 ACT/360 5,200,000 5,189,482 118 4/1/2015 1st 29,665 0.062% 0.050%
60 ACT/360 5,000,000 4,995,524 119 5/1/2015 1st 29,026 0.092% 0.080%
61 ACT/360 4,936,278 4,936,278 119 5/1/2015 1st 21,742 0.112% 0.100%
62 ACT/360 4,950,000 4,922,242 115 1/1/2015 1st 27,426 0.112% 0.100%
63 ACT/360 4,900,000 4,872,200 115 1/1/2015 1st 26,967 0.112% 0.100%
64 ACT/360 4,850,000 4,834,886 117 3/1/2015 1st 26,987 0.062% 0.050%
65 ACT/360 4,708,200 4,708,200 119 5/1/2015 1st 20,765 0.112% 0.100%
66 ACT/360 4,714,000 4,704,841 118 4/1/2015 1st 27,444 0.062% 0.050%
67 ACT/360 4,700,000 4,689,992 82 4/1/2012 1st 26,108 0.112% 0.100%
68 ACT/360 4,599,246 4,599,246 119 5/1/2015 1st 20,250 0.112% 0.100%
69 ACT/360 4,500,000 4,490,813 118 4/1/2015 1st 25,551 0.112% 0.100%
70 ACT/360 4,468,340 4,468,340 121 7/1/2015 1st 25,914 0.112% 0.100%
71 ACT/360 4,250,000 4,250,000 117 3/1/2015 1st 18,349 0.112% 0.100%
72 30/360 4,108,500 4,108,500 55 1/1/2010 1st 14,948 0.112% 0.100%
73 ACT/360 4,100,000 4,092,124 118 4/1/2015 1st 24,005 0.112% 0.100%
74 ACT/360 3,900,000 3,900,000 81 3/1/2012 1st 22,333 0.062% 0.050%
75 ACT/360 3,900,000 3,900,000 115 1/1/2015 1st 21,563 0.112% 0.100%
76 ACT/360 3,680,000 3,668,694 117 3/1/2015 1st 20,623 0.062% 0.050%
77 ACT/360 3,600,000 3,592,491 118 4/1/2015 1st 20,215 0.112% 0.100%
78 ACT/360 3,200,000 3,183,744 115 1/1/2015 1st 18,737 0.082% 0.070%
79 ACT/360 3,000,000 2,980,011 116 2/1/2015 1st 17,713 0.112% 0.100%
80 ACT/360 3,000,000 2,977,190 115 1/1/2015 1st 18,579 0.062% 0.050%
81 ACT/360 2,460,000 2,452,535 117 3/1/2015 1st 13,871 0.112% 0.100%
82 ACT/360 2,400,000 2,389,895 117 3/1/2015 1st 15,077 0.062% 0.050%
83 ACT/360 2,100,000 2,094,151 117 3/1/2015 1st 12,341 0.092% 0.080%
84 ACT/360 2,100,000 2,090,938 81 3/1/2012 1st 13,015 0.092% 0.080%
85 ACT/360 2,000,000 1,994,287 117 3/1/2015 1st 11,613 0.062% 0.050%
86 ACT/360 2,000,000 1,985,087 115 1/1/2015 1st 12,535 0.062% 0.050%
$1,642,344,324
Master Original
Sequence Servicing Ownership Amortization XXX Xxxxx
Number Fee Rate Interest Crossed (months) Loan Period
-------- --------- ------------- ----------- ------------ ---- ------
1 0.010% Fee No 360 No 10
2 0.010% Fee No 0 No 0
3.1 0.010% Fee No No 0
3.2 0.010% Fee No No 0
3 0.010% Fee No 0 No 0
4 0.010% Fee No 0 No 0
5 0.010% Fee No 0 No 0
6 0.010% Fee No 0 No 0
7 0.010% Fee No 0 Yes 10
8 0.010% Fee No 300 No 0
9 0.010% Fee No 360 No 5
10 0.010% Fee No 360 No 5
11 0.010% Fee No 0 No 0
12 0.010% Fee/Leasehold No 360 No 0
13.1 0.010% Fee No No 5
13.2 0.010% Fee No No 5
13.3 0.010% Fee No No 5
13.4 0.010% Fee No No 5
13.5 0.010% Leasehold No No 5
13.6 0.010% Fee No No 5
13 0.010% Fee/Leasehold No 360 No 5
14 0.010% Fee No 360 No 10
15 0.010% Leasehold No 360 Yes 5
16 0.010% Fee No 0 Yes 10
17 0.010% Fee/Leasehold No 360 No 0
18 0.010% Leasehold BACM 05-2-A 0 No 5
19 0.010% Fee BACM 05-2-A 0 No 5
20 0.010% Fee No 0 No 5
21 0.010% Fee No 0 Yes 10
22 0.010% Fee No 0 No 5
23 0.010% Fee No 360 No 10
24 0.010% Fee No 360 No 5
25 0.010% Fee No 360 No 5
26 0.010% Fee No 0 No 5
27 0.010% Fee No 360 No 5
28 0.010% Fee No 0 No 5
29 0.010% Fee No 360 No 5
30 0.010% Fee No 0 No 5
31 0.010% Fee No 360 Yes 5
32 0.010% Fee No 0 No 5
33 0.010% Fee No 360 No 5
34.1 0.010% Fee No No 5
34.2 0.010% Fee No No 5
34 0.010% Fee No 360 No 5
35 0.010% Fee No 0 No 5
36 0.010% Fee No 360 No 5
37 0.010% Fee No 0 No 5
38 0.010% Fee No 360 No 5
39 0.010% Fee No 360 No 5
40 0.010% Fee No 0 No 5
41 0.010% Fee No 360 No 5
42 0.010% Fee No 300 No 5
43 0.010% Fee No 360 No 10
44 0.010% Fee No 360 No 5
45 0.010% Fee BACM 05-2-B 360 No 5
46 0.010% Fee BACM 05-2-B 0 No 5
47 0.010% Fee No 360 No 5
48 0.010% Fee No 360 No 5
49 0.010% Fee No 360 No 5
50.1 0.010% Fee No No 5
50.2 0.010% Fee No No 5
50 0.010% Fee No 0 No 5
51 0.010% Fee No 300 No 5
52 0.010% Fee No 360 No 5
53 0.010% Fee No 0 No 5
54 0.010% Fee No 360 No 5
55 0.010% Fee No 360 No 5
56 0.010% Fee No 348 No 5
57 0.010% Fee No 360 No 5
58 0.010% Fee No 360 No 5
59 0.010% Fee No 360 No 5
60 0.010% Fee No 360 No 10
61 0.010% Fee No 0 No 5
62 0.010% Fee No 360 No 5
63 0.010% Fee No 360 No 5
64 0.010% Fee No 360 No 5
65 0.010% Fee No 0 No 5
66 0.010% Fee No 360 No 5
67 0.010% Fee No 360 No 5
68 0.010% Fee No 0 No 5
69 0.010% Fee No 360 No 5
70 0.010% Fee No 360 No 5
71 0.010% Fee No 0 No 5
72 0.010% Fee No 0 No 5
73 0.010% Fee No 360 No 5
74 0.010% Fee No 360 No 5
75 0.010% Fee No 360 No 5
76 0.010% Fee No 360 No 5
77 0.010% Fee No 360 No 5
78 0.010% Fee No 360 No 5
79 0.010% Fee No 300 No 5
80 0.010% Fee No 300 No 5
81 0.010% Fee No 360 No 5
82 0.010% Fee No 300 No 5
83 0.010% Fee No 360 No 5
84 0.010% Fee No 300 No 5
85 0.010% Fee No 360 No 5
86 0.010% Fee No 300 No 5
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
Sub-Servicing Agreement, dated as of June 1, 2005, by and between
BANK OF AMERICA, N.A., as Master Servicer, COLLATERAL MORTGAGE CAPITAL, LLC,
LAUREATE CAPITAL LLC, X.X. XXXXXX & COMPANY OF TEXAS, LP, and NORTHMARQ CAPITAL,
INC. each as Sub-Servicers.
Sub-Servicing Agreement, dated as of June 1, 2005, by and between
BANK OF AMERICA, N.A., as Master Servicer, and MIDLAND LOAN SERVICES, INC., as
Sub-Servicer.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
NONE
SCHEDULE IV
CLASS XP REFERENCE RATES
Interest Class XP Interest Class XP
Accrual Distribution Reference Accrual Distribution Reference
Period Date Rate Period Date Rate
-------- ------------ --------- -------- ------------ ---------
1 7/10/2005 4.97620% 44 2/10/2009 5.10040%
2 8/10/2005 5.13060% 45 3/10/2009 5.10060%
3 9/10/2005 5.13070% 46 4/10/2009 5.25720%
4 10/10/2005 4.97650% 47 5/10/2009 5.10020%
5 11/10/2005 5.13090% 48 6/10/2009 5.25710%
6 12/10/2005 4.97670% 49 7/10/2009 5.10010%
7 1/10/2006 4.97680% 50 8/10/2009 5.25700%
8 2/10/2006 4.97690% 51 9/10/2009 5.25690%
9 3/10/2006 4.97720% 52 10/10/2009 5.09990%
10 4/10/2006 5.13140% 53 11/10/2009 5.28830%
11 5/10/2006 4.97720% 54 12/10/2009 5.13110%
12 6/10/2006 5.13160% 55 1/10/2010 5.13100%
13 7/10/2006 4.97740% 56 2/10/2010 5.16080%
14 8/10/2006 5.13180% 57 3/10/2010 5.16110%
15 9/10/2006 5.13180% 58 4/10/2010 5.35680%
16 10/10/2006 4.97750% 59 5/10/2010 5.18300%
17 11/10/2006 5.13170% 60 6/10/2010 5.35680%
18 12/10/2006 4.97740% 61 7/10/2010 5.18300%
19 1/10/2007 4.97740% 62 8/10/2010 5.35670%
20 2/10/2007 4.97730% 63 9/10/2010 5.35670%
21 3/10/2007 4.97840% 64 10/10/2010 5.18290%
22 4/10/2007 5.13140% 65 11/10/2010 5.35660%
23 5/10/2007 4.97720% 66 12/10/2010 5.18280%
24 6/10/2007 5.13130% 67 1/10/2011 5.18280%
25 7/10/2007 4.97700% 68 2/10/2011 5.18270%
26 8/10/2007 5.13110% 69 3/10/2011 5.18310%
27 9/10/2007 5.13110% 70 4/10/2011 5.35640%
28 10/10/2007 4.97450% 71 5/10/2011 5.18260%
29 11/10/2007 5.13310% 72 6/10/2011 5.35630%
30 12/10/2007 4.97900% 73 7/10/2011 5.18250%
31 1/10/2008 5.13320% 74 8/10/2011 5.35740%
32 2/10/2008 5.10110% 75 9/10/2011 5.35740%
33 3/10/2008 5.10110% 76 10/10/2011 5.18360%
34 4/10/2008 5.25800% 77 11/10/2011 5.35730%
35 5/10/2008 5.10090% 78 12/10/2011 5.23280%
36 6/10/2008 5.25790% 79 1/10/2012 5.40820%
37 7/10/2008 5.10080% 80 2/10/2012 5.23280%
38 8/10/2008 5.25780% 81 3/10/2012 5.23300%
39 9/10/2008 5.25770% 82 4/10/2012 5.40740%
40 10/10/2008 5.10070% 83 5/10/2012 5.25860%
41 11/10/2008 5.25760% 84 6/10/2012 5.43490%
42 12/10/2008 5.10050%
43 1/10/2009 5.10050%
SCHEDULE V
Mortgage Loans that Initially Pay Interest Only
----------------------------------------------------------------------------------------------------------------------------------
Loan Number Property Name Cutoff Balance Amortization Type IO Period % of Pool
----------------------------------------------------------------------------------------------------------------------------------
58921 NYU Housing - 00 Xxxxxxxxx Xxxxxx 110,000,000.00 Interest Only 120 6.70%
58611 Canyon Ranch 95,000,000.00 Interest Only 120 5.78%
00000 Xxxxxxx Xxxxxx I & II 88,600,000.00 Interest Only 82 5.39%
00000 Xxxxxxx Xxxxx I & II 77,000,000.00 Interest Only 60 4.69%
58908 000 Xxxxx Xxxxxx 73,500,000.00 Interest Only 120 4.48%
58623 American Express Building - Minneapolis 56,050,000.00 IO, Hyper Am 60 3.41%
58847 Mission City Corporate Center 44,000,000.00 Interest Only 82 2.68%
58886 Mountain Farms Shopping Center 44,000,000.00 IO, Balloon 24 2.68%
58449 Captain's Portfolio 33,500,000.00 IO, Balloon 16 2.04%
58711 OSI Systems 32,800,000.00 IO, Balloon 60 2.00%
58857 Atria East 30,995,196.00 Partial IO, Hyper Am 60 1.89%
58626 American Express Building - Salt Lake City 30,149,000.00 IO, Hyper Am 60 1.84%
58797 The Grand Rivage at Xxxxxxx Lakes 28,875,000.00 IO, Balloon 24 1.76%
13022 Keelers Corner 27,900,000.00 Interest Only 84 1.70%
58625 American Express Building - Ontario 25,380,000.00 IO, Hyper Am 61 1.55%
58830 Crossroads at Sunset 22,640,000.00 Interest Only 120 1.38%
57938 Buena Park Corporate Plaza 21,700,000.00 IO, Balloon 12 1.32%
58852 Edward's Multiplex-Fresno 19,730,000.00 Interest Only 60 1.20%
58856 Villa Del Mar 17,150,000.00 Interest Only 120 1.04%
58826 Capistrano II Office Building 16,120,000.00 Interest Only 120 0.98%
58855 Vail Club Apartments 15,700,000.00 Interest Only 120 0.96%
58934 Trop Decatur Plaza 15,500,000.00 Partial IO, Hyper Am 60 0.94%
58824 Bridgecreek Office Building 13,960,000.00 Interest Only 120 0.85%
12974 Coronado Shopping Center- Santa Fe 13,300,000.00 IO, Balloon 24 0.81%
58723 CSM - Denver Properties 13,200,000.00 IO, Balloon 24 0.80%
58831 Ocean Dorado 13,096,000.00 Interest Only 120 0.80%
58696 CSM - Hilton Garden Inn - Scottsdale 12,853,229.00 IO, Balloon 24 0.78%
58792 Germantown (Triumph) 12,400,000.00 Interest Only 120 0.76%
58941 Gateway Tower 10,200,000.00 Interest Only 60 0.62%
58809 Xxxxxxx Palm Business Center 9,200,000.00 IO, Balloon 36 0.56%
00000 Xxxxxxxxxx Xxxxxxx 9,100,000.00 IO, Balloon 36 0.55%
58846 Cuyahoga Falls Market Center 8,285,000.00 Interest Only 60 0.50%
58911 Xxxxxxxx CVS Pool #1 7,040,000.00 Interest Only 120 0.43%
58835 The Du Xxxxx Apartments 6,752,000.00 Interest Only 120 0.41%
13106 Xxxx Industrial 6,000,000.00 IO, Balloon 60 0.37%
12034 Olde Sarasota Self Storage 5,600,000.00 IO, Balloon 12 0.34%
58842 Havenhurst Apartments 4,936,278.00 Interest Only 120 0.30%
58839 Xxxxxxx Apartments 4,708,200.00 Interest Only 120 0.29%
58832 Xxx Xxxxxxx Xxxxx Apartments 4,599,246.00 Interest Only 120 0.28%
58914 Makena Great American Plaza 4,468,340.00 IO, Balloon 61 0.27%
58726 Sorrento Valley Self Storage 4,250,000.00 Interest Only 120 0.26%
00000 Xxxxxxx Xxxxx Retail Center 4,108,500.00 Interest Only 60 0.25%
58727 Sorrento Mesa 4,100,000.00 Interest Only 120 0.25%
58725 Smart Self Storage 4,100,000.00 IO, Balloon 36 0.25%
12551 Cedar East & Cypress Office 3,900,000.00 IO, Balloon 24 0.24%
58682 Vacaville Town Center 3,900,000.00 IO, Balloon 60 0.24%
SCHEDULE VI
Mortgage Loans Containing Additional Debt
-----------------------------------------------------------------------------------------------------------------------------------
Loan Number Property Name Cutoff Balance Existing Additional Debt Existing Additional Debt Amount
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxx Xxxxxx I & II 88,600,000.00 Yes 15,000,000
58847 Mission City Corporate Center 44,000,000.00 Yes 8,000,000
58449 Captain's Portfolio 33,500,000.00 Yes 5,000,000
58797 The Grand Rivage at Xxxxxxx Lakes 28,875,000.00 Yes 3,100,000
58620 Fashion Show Mall 143,619,680.67 Yes 235,000,000
58789 Xxxxx Office Building 50,836,428.60 No
58886 Mountain Farms Shopping Center 44,000,000.00 No
58857 Atria East 30,995,196.00 No
58830 Crossroads at Sunset 22,640,000.00 No
57938 Buena Park Corporate Plaza 21,700,000.00 No
58826 Capistrano II Office Building 16,120,000.00 No
58824 Bridgecreek Office Building 13,960,000.00 No
58723 CSM - Denver Properties 13,200,000.00 No
58831 Ocean Dorado 13,096,000.00 No
58696 CSM - Hilton Garden Inn - Scottsdale 12,853,229.00 No
58809 Xxxxxxx Palm Business Center 9,200,000.00 No
58725 Smart Self Storage 4,100,000.00 No
58727 Sorrento Mesa 4,100,000.00 No
58911 Xxxxxxxx CVS Pool #1 7,040,000.00 No
58835 The Du Xxxxx Apartments 6,752,000.00 No
00000 Xxxxxxxxxx Apartments 4,936,278.00 No
58839 Xxxxxxx Apartments 4,708,200.00 No
58832 Xxx Xxxxxxx Xxxxx Apartments 4,599,246.00 No
58726 Sorrento Valley Self Storage 4,250,000.00 No
00000 Xxxxxxxxx Xxxx Center 3,900,000.00 No
58658 Best Buy - Gwinnett County 2,980,011.09 No
58856 Villa Del Mar 17,150,000.00 No
58761 Rancho San Diego Industrial Center 9,471,214.29 No
13022 Keelers Corner 27,900,000.00 No
12974 Coronado Shopping Center- Santa Fe 13,300,000.00 No
12458 All Safe Storage 3,668,694.02 No
11355 Metro 502 Self Storage 4,995,523.92 No
-----------------------------------------------------------------------------------------------
Loan Number Existing Additional Debt Description Future Debt Permitted?
-----------------------------------------------------------------------------------------------
58848 B-Note No
58847 B-Note No
58449 B-Note No
58797 Xxxxxxxxx Xx
00000 X-0 Xxxx-Xxxxx ($195,000,000); B-Note ($40,000,000) Yes
58789 Yes
58886 Yes
58857 Yes
58830 Yes
57938 Yes
58826 Yes
58824 Yes
58723 Yes
58831 Yes
58696 Yes
58809 Yes
58725 Yes
58727 Yes
58911 Yes
58835 Yes
58842 Yes
58839 Yes
58832 Yes
58726 Yes
58682 Yes
58658 Yes
58856 Yes
58761 Yes
13022 Yes
12974 Yes
12458 Yes
11355 Yes
--------------------------------------------------------------------------------------------------------------------
Loan Number Future Debt Amount Permitted
--------------------------------------------------------------------------------------------------------------------
58848
58847
58449
58797
58620 LTV<=75%, DSCR>=1.10x
58789 LTV<65%,DSCR>1.25
58886 LTV <= 85%, DSCR >= 1.20x
58857 LTV<=80 DSCR >=1.20
58830 LTV<=80%; DSCR>=1.25
57938 LTV<79.20, DSCR>1.25
58826 LTV<=80%, DSCR>=1.15
58824 LTV<=80%, DSCR>=1.15
58723 LTV< LTV at closing DSCR> DSCR at closing
58831 LTV<=80%, DSCR >= 1.25
58696 LTV< LTV at closing DSCR> DSCR at closing
58809 LTV<=70%
58725 LTV<=65% DSCR >=1.70
58727 LTV<=60% DSCR >=1.70
58911 LTV<=80%; DSCR>=1.25
58835 LTV<=80%; DSCR>=1.11
58842 LTV<=80%, DSCR>=1.11
58839 LTV<= 80%, DSCR >= 1.11
58832 LTV<=80.0%; DSCR>= 1.11
58726 LTV<=60% DSCR >=1.70
58682 LTV =<75%, DSCR >= 1.15x
58658 LTV<=50%, DSCR>=1.60x
58856 LTV<80.0 DSCR>1.20
58761 LTV<=70%; DSCR>=1.25
13022 LTV <= 75%, DSCR >=1.20
12974 LTV <= 75%, DSCR >= 1.25x
12458 LTV <= 80%, DSCR >= 1.25x
11355 <= 49% of value increase, <= 49% of sponsor's equity interest in borrower, DSCR >= 1.25x
------------------------------------------------------------------------------------------------------------------------
Loan Number Future Debt Description % of Pool
------------------------------------------------------------------------------------------------------------------------
58848 5.39%
58847 2.68%
58449 2.04%
58797 1.76%
58620 Mezzanine 8.74%
58789 Mezzanine 3.10%
58886 Mezzanine 2.68%
58857 Mezzanine 1.89%
58830 Mezzanine 1.38%
57938 Mezzanine 1.32%
58826 Mezzanine 0.98%
58824 Mezzanine 0.85%
58723 Mezzanine 0.80%
58831 Mezzanine 0.80%
58696 Mezzanine 0.78%
58809 Mezzanine 0.56%
58725 Mezzanine 0.25%
58727 Mezzanine 0.25%
58911 Mezzanine 0.43%
58835 Mezzanine 0.41%
58842 Mezzanine 0.30%
58839 Mezzanine 0.29%
58832 Mezzanine 0.28%
58726 Mezzanine 0.26%
58682 Mezzanine 0.24%
58658 Mezzanine 0.18%
58856 Subordinate Secured 1.04%
58761 Subordinate Unsecured 0.58%
13022 Subordinate Unsecured; After 5/2/2006; Occupancy >= 87%. 1.70%
12974 Variable Subordinate Debt: After April 2007, Occupancy > 82.1% 0.81%
12458 Variable Subordinate Debt: After February 2007, Occupancy >= 85%. 0.22%
11355 Variable unsecured: Mezzanine; Variable secured: Secured Subordinate Debt 0.30%
SCHEDULE VII
Schedule of Controlling Holders and Operating Advisors
Directing Certificateholder
Anthracite Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and Xxxxxx Xxxxxx,
telecopy number: (000) 000-0000
Fashion Show Mall Controlling Class Holder
Banc of America Structured Notes, Inc., at Bank of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, telecopy number: (000) 000-0000
Regents Square I & II Controlling Holder
Banc of America Structured Notes, Inc., at Bank of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, telecopy number: (000) 000-0000
Mission City Corporate Center Controlling Holder
Banc of America Structured Notes, Inc., at Bank of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, telecopy number: (000) 000-0000
Class CP Controlling Holder
Banc of America Structured Notes, Inc., at Bank of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, telecopy number: (000) 000-0000
ANNEX A
Proposed Lease Modification for Loan No. 58623
The lease between the related Borrower and the existing tenant would be
terminated and two separate leases would be entered into:
i. a lease between the related Borrower and the existing tenant
initially with respect to approximately 51% of the net
rentable square feet; and
ii. a lease between the related Borrower and a new tenant
initially with respect to approximately 49% of the net
rentable square feet.
Each of the leases would provide for adjustments in rent and other
payment obligations if the allocation of space to each tenant changes.
Any difference in the credit ratings between the existing tenant and the
new tenant (which is currently rated "A-" by S&P) relating to the lease with the
new tenant would (as to the then remaining financial obligations under such
lease) be secured by an acceptable "credit" enhancement, which could be either
(i) a purchased "insurance policy" insuring against any increased risk of
default on account of any difference in such credit ratings; (ii) a "payment" to
reflect the monetizing of the present value of any such increased risk of
default over the balance of the term of the new lease on account of any
increased risk of default on account of any difference in such credit ratings;
(iii) a renewable letter of credit to insure against a default by the new tenant
over the balance of the term of the related Mortgage Loan, the amount of such
letter of credit to be based on the agreed loss of collateral value related to
the difference in such credit ratings; or (iv) a secondary guaranty from the
existing tenant, which would come into place only if the new tenant defaults.
The existing tenant would be responsible throughout the terms of both
new leases for oversight of the entire related Mortgaged Property and would
control all material management aspects of both leased premises. The existing
tenant would continue to have all maintenance and operation responsibilities for
the entire Mortgaged Property.
