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 April 1, 2004
---------------------------------
$1,138,760,562
Commercial Mortgage Pass-Through Certificates
Series 2004-2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.03 Cross-Collateralized Mortgage Loans..........................
Section 1.04 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 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 [Reserved]...................................................
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 Designation of Grantor Trust.................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage 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, the Distribution Account, the REMIC
I Distribution Account, the REMIC II Distribution
Account and the Excess Liquidation Proceeds Account.........
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account 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 REMIC I Distribution Account,
the REMIC II Distribution Account, 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 Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Mortgage Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class..................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
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.....................................
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 Mortgage Loans...............
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees of Trustee; Indemnification of Trustee..................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee 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-5 Certificate
EXHIBIT A-6 Form of Class XC Certificate
EXHIBIT A-7 Form of Class XP Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class L Certificate
EXHIBIT A-18 Form of Class M Certificate
EXHIBIT A-19 Form of Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of Class P Certificate
EXHIBIT A-22 Form of Class R-I Certificate
EXHIBIT A-23 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section
5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G [Reserved]
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
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
This Pooling and Servicing Agreement (this "Agreement"), dated and
effective as of April 1, 2004, 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, that 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 two 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 two
separate real estate mortgage investment conduits ("REMIC I" and "REMIC II",
respectively).
REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Mortgage Loans (exclusive of Excess 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").
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Corresponding
Corresponding Components of
Corresponding REMIC I Principal REMIC I Regular Class X
Certificates Balance Interests(1) Certificates(1)
--------------------------------------------------------------------------------
Class A-1 $4,291,717 LA-1-1 XA-1-1
--------------------------------------------------------------------------------
$5,748,014 XX-0-0 XX-0-0
--------------------------------------------------------------------------------
$24,108,886 LA-1-3 XA-1-3
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$27,578,770 LA-1-4 XA-1-4
--------------------------------------------------------------------------------
$15,028,613 XX-0-0 XX-0-0
--------------------------------------------------------------------------------
Class A-2 $11,511,232 LA-2-1 XA-2-1
--------------------------------------------------------------------------------
$26,330,525 LA-2-2 XA-2-2
--------------------------------------------------------------------------------
$25,304,302 LA-2-3 XA-2-3
--------------------------------------------------------------------------------
$24,807,136 LA-2-4 XA-2-4
--------------------------------------------------------------------------------
$38,443,391 LA-2-5 XA-2-5
--------------------------------------------------------------------------------
$110,130,414 XX-0-0 XX-0-0
--------------------------------------------------------------------------------
Class A-3 $93,010,180 LA-3-1 XA-3-1
--------------------------------------------------------------------------------
$17,661,454 LA-3-2 XA-3-2
--------------------------------------------------------------------------------
$17,325,025 LA-3-3 XA-3-3
--------------------------------------------------------------------------------
$115,234,543 LA-3-4 XA-3-4
--------------------------------------------------------------------------------
$40,170,798 XX-0-0 XX-0-0
--------------------------------------------------------------------------------
Class A-4 $125,682,000 XX-0 XX-0
--------------------------------------------------------------------------------
Class A-5 $10,900,261 LA-5-1 XA-5-1
--------------------------------------------------------------------------------
$243,219,920 XX-0-0 XX-0-0
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Class B $27,045,564 LB XB
--------------------------------------------------------------------------------
Class C $12,811,056 LC XC
--------------------------------------------------------------------------------
Class D $5,678,481 XX-0 XX-0
--------------------------------------------------------------------------------
$5,272,480 XX-0 XX-0
--------------------------------------------------------------------------------
$13,247,701 XX-0 XX-0
--------------------------------------------------------------------------------
Class E $3,847,580 LE-1 XE-1
--------------------------------------------------------------------------------
$6,737,481 LE-2 XE-2
--------------------------------------------------------------------------------
$802,545 LE-3 XE-3
--------------------------------------------------------------------------------
Class F $3,530,899 LF-1 XF-1
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$8,920,077 LF-2 XF-2
--------------------------------------------------------------------------------
$3,206,981 LF-3 XF-3
--------------------------------------------------------------------------------
Class G $3,698,832 LG-1 XG-1
--------------------------------------------------------------------------------
$6,265,323 LG-2 XG-2
--------------------------------------------------------------------------------
Class H $9,186,691 LH-1 XH-1
--------------------------------------------------------------------------------
$6,471,267 LH-2 XH-2
--------------------------------------------------------------------------------
Class J $2,906,390 LJ-1 XJ-1
--------------------------------------------------------------------------------
$1,363,962 LJ-2 XJ-2
--------------------------------------------------------------------------------
Class K $5,693,803 LK XK
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Class L $3,348,816 LL-1 XL-1
--------------------------------------------------------------------------------
$2,344,987 LL-2 XL-2
--------------------------------------------------------------------------------
Class M $7,117,253 LM XM
--------------------------------------------------------------------------------
Class N $2,846,901 LN XN
--------------------------------------------------------------------------------
Class O $2,846,901 LO XO
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Class P $17,081,410 LP XP
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(1) The REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class of
REMIC II Regular Certificates also correspond to each other and,
accordingly, constitute the (i) "Corresponding REMIC I Regular Interests"
and (ii) "Corresponding Components", respectively, with respect to each
other.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II". The Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class XC, Class XP, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P Certificates (other than the portion of the
Class P Certificates evidencing the right to receive Excess Interest) 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:
Initial Class Principal
Approximate Initial Balance REMIC II Regular
Designation Pass-Through Rate Certificates
--------------------------- ----------------------- --------------------------
Class A-1 2.7640% per annum(1) $76,756,000
Class A-2 3.5200% per annum(1) $236,527,000
Class A-3 4.0500% per annum(1) $283,402,000
Class A-4 4.1530% per annum(1) $125,682,000
Class A-5 4.5800% per annum(1) $254,120,181
Class B 4.6650% per annum(2) $27,045,564
Class C 4.7060% per annum(2) $12,811,056
Class D 4.7450% per annum(2) $24,198,662
Class E 4.8440% per annum(2) $11,387,606
Class F 4.9920% per annum(2) $15,657,957
Class G 5.2390% per annum(2) $9,964,155
Class H 5.27632% per annum(3) $15,657,958
Class J 4.8960% per annum(2) $4,270,352
Class K 4.8960% per annum(2) $5,693,803
Class L 4.8960% per annum(2) $5,693,803
Class M 4.8960% per annum(2) $7,117,253
Class N 4.8960% per annum(2) $2,846,901
Class O 4.8960% per annum(2) $2,846,901
Class P 4.8960% per annum(2) $17,081,410
Class XC Variable(4) $1,138,760,562(5)
Class XP Variable(4) $1,104,576,380(5)
------------
(1) The Class A-1, Class A-2, Class A-3, Class A-4 and Class A5 Certificates
on any Distribution Date will accrue interest at a fixed rate.
(2) Initial Pass-Through Rate. The Class B, Class C, Class D, Class E, Class
F, Class G, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates on any Distribution Date will accrue interest at a fixed
rate subject to a cap at the Weighted Average Net Mortgage Rate.
(3) Initial Pass-Through Rate. The Class H Certificates will accrue interest
at the Weighted Average Net Mortgage Rate.
(4) The Pass-Through Rates for each of the Class XC and Class XP Certificates
will be calculated in accordance with the related definitions of "Class XC
Pass-Through Rate", and "Class XP Pass-Through Rate", as applicable.
(5) The Class XC and Class XP Certificates will not have a Class Principal
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class XC Notional Amount or Class XP
Notional Amount, as applicable.
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 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 REMIC I Distribution Account).
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 P Certificates
also 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.
"Accrued Certificate Interest": With respect to 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 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 Component and
any Distribution Date, and shall be deemed to accrue during the calendar month
preceding the month in which such Distribution Date occurs.
"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 Mortgage Loan.
"Additional Exclusions": Exclusions relating to terrorist or similar
acts in addition to those customarily found in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Sequential Pay Certificates receiving less than the full amount of principal
and/or interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan or
REO Loan 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 Mortgage
Loan or REO Loan, 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 or REO Loan, as the case may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan or REO Loan
during such calendar month. Such rate shall be calculated by multiplying (i) the
Net Mortgage Rate (or, in the case of an ARD Loan after its Anticipated
Repayment Date, if such rate is less, the related Net Mortgage Rate in effect
for such Mortgage Loan immediately prior to its Anticipated Repayment Date) by
(ii) the actual number of days of accrued interest for the related period for
such Mortgage Loan, divided by 30; provided, however, that with respect to such
Mortgage Loans, the Adjusted Net Mortgage Rate for the 1-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 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 1-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).
"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 each of 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 Mortgage Loan, which date is prior to the Stated Maturity Date
for such Mortgage 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 Mortgage 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 USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, at the Special Servicer's option, either a
limited appraisal and a summary report or an internal valuation prepared by the
Special Servicer) that indicates the "market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a limited appraisal and summary report or
internal valuation with respect to a Mortgage Loan or an REO Loan with a Stated
Principal Balance as of the date of such appraisal or valuation of $2,000,000 or
less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of the date on which the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof was obtained by the Special Servicer pursuant
to this Agreement and the date of the most recent Appraisal Trigger Event with
respect to such Required Appraisal Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not previously
advanced by or on behalf of the Master Servicer, or the Trustee, all unpaid
interest (net of Default Interest) accrued on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Loan, (d) all related unreimbursed Advances made by or on behalf of the Master
Servicer, the Special Servicer, 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, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes of
Section 3.19(b) hereof, over (ii) the amount of any obligation(s) secured by any
liens on such Mortgaged Property or REO Property, as applicable, that are prior
to the lien of such Required Appraisal Loan, and (y) any Escrow Payments,
Reserve Funds and/or Letters of Credit held by the Master Servicer or the
Special Servicer with respect to such Required Appraisal Loan, the related
Mortgaged Property or any related REO Property (exclusive of any such items that
are to be applied to real estate taxes, assessments, insurance premiums and/or
ground rents or that were taken into account in determining the Appraised Value
of the related Mortgaged Property or REO Property, as applicable, referred to in
clause (2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Mortgage 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.
"Appraisal Trigger Event": With respect to any Mortgage Loan, any of
the following events:
(i) such Mortgage Loan becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Mortgage 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, if the
Master Servicer has, on or prior to the due date of such Balloon Payment,
received written evidence from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan within 60 days after the due date of
such Balloon Payment, failure to pay such Balloon Payment during such 60-day
period shall not constitute an Appraisal Trigger Event;
(iii) the passage of 60 days after the Special Servicer receives notice
that the Mortgagor under such Mortgage 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 Mortgage Loan has been extended three times, upon the sixtieth
day after the third extension.
"Appraised Value": 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.
"Approval Provisions": With respect to any Mortgage Loan and the
provisions set forth in Section 3.21(e) hereof, the approvals and consents and
the time frames for such approvals and consents necessary in connection with the
taking of a Special Action or the extension of the maturity date of a Mortgage
Loan set forth below:
(i) with respect to any Performing Loan, the Master Servicer shall obtain
the approval or consent of the Special Servicer;
(ii) with respect to (A) any Mortgage Loan that is a Performing Loan that
involves an extension of the maturity date of such Mortgage Loan or (B) in
connection with a Special Action for any Mortgage Loan that is a Performing Loan
with a then Stated Principal Balance in excess of $2,500,000, 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; and
(iii) with respect to any Mortgage Loan that is a Specially Serviced Loan,
the Special Servicer shall obtain the approval and consent of the Directing
Certificateholder.
With respect to any extension or Special Action set forth in clause
(ii) 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 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.
"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 Mortgage Loan, any of
the following:
(iv) 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;
(v) 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;
(vi) 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
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the related Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity), together with any
collateral therefor (including without limitation securities) in the related
Mortgage Loan Seller's possession, which assignment may be included as part of
the corresponding assignment of the related Mortgage referred to in clause (iv)
of the definition of Mortgage File.
(viii) "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 Mortgage 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 Mortgage 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 Mortgage Loan remains
outstanding and part of the Trust Fund, if no Monthly Payment (other than a
delinquent Balloon Payment) is due for such Due Date, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the amount that would have been due in respect of such
Mortgage 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 Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20). With respect to any REO Loan, for
any Due Date therefor as of which the related REO Property remains part of the
Trust Fund, the scheduled monthly payment of principal and/or interest deemed to
be due in respect thereof on such Due Date equal to the Monthly Payment that was
due (or, in the case of a Balloon Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Mortgage Loan on the last Due Date prior to its becoming an REO
Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan, an amount equal to (a) the balance on deposit in
the Distribution Account as of 11:30 a.m. (New York City time) on such
Distribution Date (or such later time on such date as of which distributions are
made on the Certificates), including, without limitation, if and to the extent
on deposit therein as of such time, the Master Servicer Remittance Amount for
the related Master Servicer Remittance Date, any P&I Advances made by the Master
Servicer, 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 Compensating Interest Payments made by the Master Servicer to cover
Prepayment Interest Shortfalls incurred during the related Collection Period,
and for the Distribution Date occurring in each March, the related Withheld
Amounts remitted to the 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 Distribution
Account pursuant to any of clauses (ii) through (vi) of Section 3.05(b), (vi)
any amounts deposited into the 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), and (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; 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.
"BACM": Banc of America Commercial Mortgage Inc., or its successor
in interest.
"Balloon Loan": Any Mortgage Loan (other than Loan No. 8165) 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 Mortgage 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 April 1, 2004,
relating to trust funds established by the Depositor and publicly offered
mortgage Pass-Through certificates evidencing interests therein.
"Book Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Mortgage 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
Mortgage Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale Agreement.
"BSCM": Bear Xxxxxxx Commercial Mortgage, Inc. and its successors in
interest.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York, North Carolina, Missouri,
Pennsylvania, Texas and Illinois and the jurisdictions in which the Primary
Servicing Offices of the Master Servicer and Special Servicer and the Corporate
Trust Office of the Trustee are located, are authorized or obligated by law or
executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2004-2 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 2004-2, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
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 XC or Class
XP Certificate, as of any date of determination, the then notional amount of
such Certificate equal to the product of (a) the Percentage Interest evidenced
by such Certificate, multiplied by (b) the then Class Notional Amount of such
Class XC or Class XP Certificate, as applicable.
"Certificate Owner": With respect to a Book Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, 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, either
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 and Class A-5 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
2.7640%.
"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
3.5200%.
"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
4.0500%.
"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 fixed per annum rate equal to
4.1530%.
"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-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-5 Pass-Through Rate": A fixed per annum rate equal to
4.5800%.
"Class B Certificate": Any one of the Certificates with a "Class B"
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 B Pass-Through Rate": A per annum rate equal to 4.6650%,
provided, however, that the Class B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-9
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 4.7060%,
provided, however, that the Class C Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class D"
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 D Pass-Through Rate": A per annum rate equal to 4.7450%,
provided, however, that the Class D Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-11
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 4.8440%,
provided, however, that the Class E Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-12
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 4.9920%,
provided, however, that the Class F Pass-Through Rate shall not exceed 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-13
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 5.2390%,
provided, however, that the Class G Pass-Through Rate shall not exceed 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-14
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-15
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 4.8960%;
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-16
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 4.8960%;
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-17
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 4.8960%;
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-18
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 4.8960%;
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-19
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 4.8960%;
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 Notional Amount": The Class XC Notional Amount and the Class
XP Notional Amount.
"Class O Certificate": Any one of the Certificates with a "Class O"
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 O Pass-Through Rate": A per annum rate equal to 4.8960%;
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-21
attached hereto, and evidencing (i) a "regular interest" in REMIC II for
purposes of the REMIC Provisions and (ii) and interest in the Grantor Trust
evidencing an undivided beneficial interest in the Excess Interest and Excess
Interest Distribution Account.
"Class P Pass-Through Rate": A per annum rate equal to 4.8960%;
provided, however, that the Class P Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates 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 the
Sequential Pay Certificates shall be reduced by the amount of any distributions
of principal made thereon on such Distribution Date pursuant to Section 4.01(b),
Section 4.01(j) and Section 4.01(k), as applicable, and shall be further 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-22
attached hereto, and evidencing the sole Class of "residual interest" in REMIC I
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-23
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC Certificates and the Class XP
Certificates.
"Class XC Certificate": Any one of the Certificates with a "Class
XC" 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 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, 0.04816% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XC Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class XC Strip Rate": With respect to any Class of Components
(other than any Class XP Component) for any Distribution Date, a rate per annum
equal to the Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date, minus the Pass-Through Rate for the Corresponding Certificates. In the
case of any Class XP Component (i) for any Distribution Date occurring on or
before the related Class XP Component Crossover Date, (x) the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus (y) the sum of the
Pass-Through Rate for the Corresponding Certificates for such Distribution Date
and the Class XP Strip Rate for such Component for such Distribution Date, and
(ii) for any Distribution Date occurring after the related Class XP Component
Crossover Date, a rate per annum equal to (x) the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for
the Corresponding Certificates (provided that in no event shall any Class XC
Strip Rate be less than zero).
"Class XP Certificate": Any one of the Certificates with a "Class
XP" designation on the face thereof, substantially in the form of Exhibit A-7
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 Crossover Date
------------------------------------ ------------------------------
Components XA-1-2 October 2004 Distribution Date
Components XA-1-3 April 2005 Distribution Date
Components XA-1-4 October 2005 Distribution Date
Components XA-1-5, XA-2-1and XL-1 April 2006 Distribution Date
Components XA-2-2, XJ-1, XK and XL-2 October 2006 Distribution Date
Components XA-2-3, XH-1 and XJ-2 April 2007 Distribution Date
Components XX-0-0, XX-0 and XH-2 October 2007 Distribution Date
Components XA-2-5, XF-1 and XG-2 April 2008 Distribution Date
Components XX-0-0, XX-0-0 and XF-2 October 2008 Distribution Date
Components XA-3-2, XE-1 and XF-3 April 2009 Distribution Date
Components XA-3-3 and XE-2 October 2009 Distribution Date
Components XA-3-4, XD-1 and XE-3 April 2010 Distribution Date
Components XX-0-0, XX-0, XX-0-0 and October 2010 Distribution Date
XD-2
Components XA-5-2, XB, XC and XD-3 April 2011 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-3-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-5-1, Component XA-5-2, 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 XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx
XX-0, Component XJ-2, Component XK, Component XL-1 and Component XL-2.
"Class XP Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of the Class XP Components.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 1.161397% 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, (x) 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 (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
XP Component Crossover Date, 0% per annum.
"Closing Date": April 14, 2004.
"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 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; and
(c) such other reports as CMSA may designate as part of the CMSA
Investor Reporting Package that are reasonably acceptable to the Master
Servicer, Special Servicer or Trustee, as applicable.
In addition, the CMSA Investor Reporting Package shall include the
Monthly Additional Report on Recoveries and Reimbursements, if such report is
required for a particular month (notwithstanding that such form of report has
not been adopted or recommended by the CMSA).
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee; provided, however, that each CMSA Loan Periodic Update File prepared by
the Master Servicer shall be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements, if such report is required for a particular
month, and all references herein to "CMSA Loan Periodic Update File" shall be
construed accordingly.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "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.
"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-3-2, Component XA-3-3, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-5-1, Component XA-5-2, 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 XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx
XX-0, Component XJ-2, Component XK, Component XL-1, Component XL-2, Component
XM, Component XN, Component XO and Component XP.
"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 43 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of determination.
"Component XA-1-4": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-4 as of any date of determination.
"Component XA-1-5": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-5 as of any date of determination.
"Component XA-2-1": One of the 43 components of the Class XC
Certificates, one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-3 as of any date of determination.
"Component XA-2-4": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-4 as of any date of determination.
"Component XA-2-5": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-5 as of any date of determination.
"Component XA-2-6": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-6 as of any date of determination.
"Component XA-3-1": One of the 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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": One of the 43 components of the Class XC
Certificates and one of the 38 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 as of any date of determination.
"Component XA-5-1": One of the 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 XB": One of the 43 components of the Class XC
Certificates, one of the 38 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 43 components of the Class XC
Certificates, one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates, one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 43 components of the Class XC
Certificates, one of the 38 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 43 components of the Class XC
Certificates and one of the 38 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 XJ-1": One of the 43 components of the Class XC
Certificates, and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-1 as of any date of determination.
"Component XJ-2": One of the 43 components of the Class XC
Certificates and one of the 38 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-2 as of any date of determination.
"Component XK": One of the 43 components of the Class XC
Certificates and one of the 38 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 as of any date of determination.
"Component XL-1": One of the 43 components of the Class XC
Certificates and one of the 38 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-1 as of any date of determination.
"Component XL-2": One of the 43 components of the Class XC
Certificates and one of the 38 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-2 as of any date of determination.
"Component XM": One of the 43 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 43 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 43 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 43 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, 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 Mortgage Loan documents or any
other applicable document.
"Confidential Information": As defined in Section 3.24.
"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).
"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: Asset Backed Securities Trust Services
Group--Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2004-2, and with respect to any successor Trustee, the
principal office thereof as designated in writing to the Depositor.
"Corrected Loan": Any Mortgage 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).
"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 1.02) equal
to the aggregate of, without duplication:
(d) 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;
(e) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(f) with respect to any Balloon Loan that is included in the Trust
Fund, as to which the related Stated Maturity Date occurred during or
prior to the related Collection Period, any payment of principal
(exclusive of any Principal Prepayment and any amount described in
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;
(g) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal thereof, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(h) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of the related
REO Loans, 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 REO Loan or the predecessor
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered.
"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, either Mortgage Loan Seller or an Affiliate
of any of them.
"Cut-off Date": April 1, 2004, except that with respect to Loan No.
39463, the Cut-off Date is April 10, 2004.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, and calculated without regard to any cross
collateralization feature of such Mortgage Loan, the ratio of (x) the Net Cash
Flow (before payment of any debt service on such Mortgage Loan) generated by the
related Mortgaged Property or Mortgaged Properties during the most recently
ended period of not more than 12 months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the related Mortgage Loan Seller (prior to the Closing Date) or the Master
Servicer or the Special Servicer (following the Closing Date), to (y) the
product of the amount of the Monthly Payment in effect for such Mortgage Loan as
of such date of determination, multiplied by the number of months represented in
the financial statements. The Master Servicer may, in accordance with CMSA
reporting standards, report Net Cash Flow with respect to each Mortgaged
Property where one or more Mortgage Loans are secured by multiple Mortgaged
Properties; provided, however, that for purposes of determining Debt Service
Coverage Ratio compliance, calculations shall be made at the Mortgage Loan
level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Mortgage
Loan or REO Loan or Excess Interest.
"Default Interest": With respect to any Mortgage 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 Mortgage Loan (or REO Loan) at the related Mortgage
Rate, such excess interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent 60
days or more in respect to a Monthly Payment (not including the Balloon Payment)
or (ii) is delinquent in respect of its Balloon Payment unless the Master
Servicer has, on or prior to the due date of such Balloon Payment, received
written evidence from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan within 60 days after the due date of
such Balloon Payment (provided that if such refinancing does not occur during
such time specified in the commitment, the related Mortgage Loan will
immediately become a Defaulted Mortgage Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that was not cured
in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": shall mean a Defective Mortgage Loan that
is repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which such Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is Citigroup Alternative Investments LLC.
"Directly Operate": With respect to any REO Property, 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 other than through an Independent
Contractor; provided, however, that the Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Disqualified Non U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non U.S. Person or agent thereof other than (i) a
Non U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for 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, 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. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, first, to 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 and Class B Certificates, in that order, in
each case up to an amount equal to the lesser of any remaining unallocated
portion of such Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest in respect of the particular Class of REMIC II Regular
Certificates for such Distribution Date; and, thereafter, if and to the extent
that any portion of such Net Aggregate Prepayment Interest Shortfall remains
unallocated, pro rata among the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4 Certificates and Class A-5 Certificates, in
accordance with the respective amounts of Accrued Certificate Interest for each
such Class of Certificates 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 2004-2,
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
May 2004.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"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 Class J, Class K, Class L, Class
M, Class N, Class O and Class P 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.
"Event of Default": One or more of the events described in Section
7.01(a).
"Evergreen Portfolio C Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of October 30, 2003 by and between
Bear Xxxxxxx Commercial Mortgage, Inc. as "Mortgage Lender" and the Evergreen
Portfolio C Mezzanine Lender as "Mezzanine Lender".
"Evergreen Portfolio C Mezzanine Lender": Commercial Net Lease
Realty, Inc. or its permitted successors or assigns.
"Evergreen Portfolio C Mezzanine Loan": That certain mezzanine loan
related to the Evergreen Portfolio C Mortgage Loan, which is evidenced by that
certain Mezzanine Loan Agreement, dated as of October 27, 2003 by and among BFSC
Holdings, LLC, BFSC Holdings II, LLC, BFSC Holdings III, LLC, BFWV Holdings,
LLC, and the Evergreen Portfolio C Mezzanine Lender.
"Evergreen Portfolio C Mortgage Loan": That certain Mortgage Loan
indentified as Loan No. 39550 on the Mortgage Loan Schedule.
"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 Mortgage 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 2004-2,
Excess Interest Distribution Account", and which must be an Eligible Account.
The Excess Interest Distribution Account shall not be an asset of 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 Mortgage 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 Mortgage Loan or related REO Loan in full, including any
related Workout-Delayed Reimbursement Amounts, (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 2004-2, Excess Liquidation Proceeds
Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption": Prohibited Transaction Exemption ("PTE") 93-31 (issued
to NationsBank Corporation (predecessor in interest to Bank of America
Corporation)), PTE 90-30 (issued to Bear, Xxxxxxx & Co., Inc.), PTE 89-88
(issued to Xxxxxxx, Sachs & Co.) and PTE 96-22 (issued to Wachovia Capital
Markets, LLC), each as amended by XXX 00-00, XXX 0000-00 and PTE 2002-41.
"Exemption Favored Party": Any of (i) Bank of America Corporation
(successor in interest to NationsBank Corporation) or any Underwriter, (ii) any
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Bank of America Corporation or any
Underwriter and (iii) any member of a syndicate or selling group of which Bank
of America Corporation or any Underwriter or any other person set forth in
clause (ii) is a manager or co manager with respect to a Class of Certificates.
"Xxxxxx Xxx": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Mortgage Loan or REO Property (other
than a Mortgage Loan that is paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that is repurchased or replaced by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and Sale
Agreement or purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 9.01), that there has
been a recovery of all related Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that will ultimately be
recoverable.
"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.
"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 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 REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I was 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 REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
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 equal to $1,138,760,562 and with respect to the Class XP Certificates, the
initial Class XP Notional Amount thereof as of the Closing Date equal to
$1,104,576,380.
"Initial Class Principal Balance": With respect to any Class of
Sequential 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 Purchaser": Each of Banc of America Securities LLC and
Bear, Xxxxxxx & Co. Inc.
"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 Mortgage 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
Mortgage 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 Mortgage Loan documents, in either
case, in accordance with the Servicing Standard and with applicable law.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest or any Class of REMIC
II Regular Certificates, consisting of one of the following: (i) a 30/360 Basis;
or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of REMIC I
Regular Interests and each Class of REMIC II Regular Certificates for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Reserve Account": The segregated account or sub-account of
the Certificate Account created and maintained by the Master Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be entitled
"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 2004-2, Interest Reserve Account".
"Interested Person": The Depositor, either 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 Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Mortgage 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 Mortgage 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 Mortgage 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 Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Mortgagor
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan (or related REO Loan) is repurchased by the Mortgage Loan Seller pursuant
to Section 4 of the Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Directing Certificateholder or the Special Servicer pursuant to
Section 3.18(c); or (v) such Mortgage Loan is purchased by the Special Servicer
or the Master Servicer pursuant to Section 9.01(b). With respect to any REO
Property (and the related REO Loan), any of the following events: (i) a Final
Recovery Determination is made with respect to such REO Property or (ii) such
REO Property is purchased by the Master Servicer or the Special Servicer
pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property pursuant to Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property, 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 pursuant to any applicable purchase
right set forth in Section 3.18(c) or (l) of this Agreement or with respect to a
purchase of a related Defaulted Mortgage Loan at its fair value as determined in
Section 3.18, if any such purchase occurs or purchase right is exercised not
later than 90 days from the date that the Special Servicer initially determined
the fair value of the related Mortgage Loan, (b) the purchase option of the
Majority Certificateholder of the Controlling Class, the Master Servicer or the
Special Servicer pursuant to Section 9.01 of this Agreement or (c) the
repurchase by either Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase
and Sale Agreement and Section 2.03 of this Agreement not later than 180 days
after it has been notified pursuant to of its obligation to so repurchase under
Section 2.03 of this Agreement and Section 4 of the Mortgage Loan Purchase and
Sale
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
and each REO Loan with an unpaid principal balance greater than or equal to
$20,000,000 as to which a Liquidation Fee is payable, 0.75% (75 basis points)
per annum, and with respect to each Specially Serviced Loan and each REO Loan
with an unpaid principal balance less than $20,000,000 as to which a Liquidation
Fee is payable, 1.00% (100 basis points) per annum.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related Mortgage Loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Mortgage Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(d), by the
Evergreen Portfolio C Mezzanine Lender pursuant to the Evergreen Portfolio C
Mezzanine Intercreditor Agreement, or by the PPG Place Mezzanine Lender pursuant
to the PPG Place Mezzanine Intercreditor Agreement; (iv) the repurchase of a
Mortgage Loan by the related Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase and Sale Agreement; (v) the substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan by the related Mortgage
Loan Seller pursuant to the related Mortgage Loan Purchase and Sale Agreement
(such cash amounts being any Substitution Shortfall Amounts); or (vi) the
purchase of a Mortgage Loan or REO Property by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 9.01.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box agreement, if any, between the related originator and the Borrower,
pursuant to which an account created pursuant to the related Mortgage Loan
documents to receive revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"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.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to 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.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders with respect to the affected Mortgage
Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders with respect to the
affected Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Loan": Each of the Evergreen Portfolio C Mezzanine Loan
and the PPG Place Mezzanine Loan.
"Modified Loan": Any Mortgage 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:
(i) 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 Mortgage Loan);
(j) except as expressly contemplated by the related Mortgage 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
(k) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan
or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to each Collection Period, a report prepared by the Master Servicer, in
a format reasonably acceptable to the Special Servicer and the Trustee, that
identifies the following with respect to such Collection Period, in all cases
both on a loan-by-loan basis and in the aggregate:
(a) the amount of any Advance (and accrued and unpaid Advance
Interest thereon) that became a Workout-Delayed Reimbursement Amount during such
Collection Period;
(b) (i) the amount of any Workout-Delayed Reimbursement Amount that
was reimbursed to the Master Servicer, the Special Servicer or the Trustee
during such Collection Period, (ii) the extent to which any reimbursement of a
Workout-Delayed Reimbursement Amount made during such Collection Period was made
from amounts in the Certificate Account allocable to principal during the
Collection Period as contemplated by Section 3.05(a), and (iii) the extent to
which any reimbursement of a Workout-Delayed Reimbursement Amount made during
such Collection Period was made from amounts in the Certificate Account
allocable to principal on the remainder of the Mortgage Loans during such
Collection Period as contemplated by Section 3.05(a);
(c) the amount of any Workout-Delayed Reimbursement Amount that
arose in a prior Collection Period that was not reimbursed to the Master
Servicer, the Special Servicer or the Trustee in the current or a prior
Collection Period but that became a Nonrecoverable Advance in the current
Collection Period;
(d) the amount of any Advance (and accrued and unpaid Advance
Interest thereon), other than an amount described in clause (c) above, that
became a Nonrecoverable Advance during such Collection Period;
(e) (i) the amount of any Nonrecoverable Advance (and accrued and
unpaid Advance Interest thereon) that was reimbursed to the Special Servicer or
the Trustee during the current Collection Period, and (ii) the extent (if any)
to which any reimbursement of a Nonrecoverable Advance (and accrued and unpaid
Advance Interest thereon) was made from amounts allocable to principal during
such Collection Period as contemplated by Section 3.05(a);
(f) the amount of any Advance reimbursed to the Master Servicer, the
Special Servicer or the Trustee as a Nonrecoverable Advance in a prior
Collection Period that was recovered from the related Mortgagor or otherwise
from the proceeds of the related Mortgage Loan or REO Property on behalf of the
Trust during the current Collection Period (notwithstanding that it was
previously determined to constitute a Nonrecoverable Advance); and
(g) a reconciliation of Advance Interest accrued on any
Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance, any Default
Charges collected during the related Collection Period and the amount of Default
Charges that were applied to pay such Advance Interest.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the Master Servicer and
shall not constitute a responsibility of any other party. Each CMSA Loan
Periodic Update File prepared by the Master Servicer shall be accompanied by a
Monthly Additional Report on Recoveries and Reimbursements. Notwithstanding
anything in this Agreement that suggests otherwise, the Master Servicer shall
not be required to deliver a Monthly Additional Report on Recoveries and
Reimbursements (and no CMSA Loan Periodic Update File need be accompanied by any
such report) with respect to any Collection Period for which all of the entries
in the report would be "zero" or "not applicable" or with respect to any
Collection Period for which the information that would otherwise be included in
the Monthly Additional Report on Recoveries and Reimbursements in included in
the CMSA Investor Reporting Package.
"Monthly Payment": With respect to any Mortgage Loan, for any Due
Date as of which such Mortgage 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 Mortgage Loan, including,
without limitation, a Balloon Payment, that is actually payable by the related
Mortgagor from time to time under the terms of the related Mortgage Note (as
such terms may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20 and applicable law); 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 Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.03 and 2.01, collectively the following documents:
(ix) 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
2004-2, without recourse" or in blank, and further showing a complete, unbroken
chain of endorsement from the originator (if such originator is other than the
related Mortgage Loan Seller); or alternatively, if the original executed
Mortgage Note has been lost, a lost note affidavit and indemnity from the
related Mortgage Loan Seller with a copy of such Mortgage Note;
(x) 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;
(xi) 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;
(xii) 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 2004-2 or in
blank, in recordable form (except for any missing recording information with
respect to such Mortgage); 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 Mortgage Loan Seller 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;
(xiii) 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 2004-2 or in blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases); 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 Mortgage Loan Seller 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;
(xiv) 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;
(xv) 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;
(xvi) 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 related 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 2004-2 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 Mortgage Loan Seller
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;
(xvii) the original or a copy of any environmental indemnity agreement
relating solely to such Mortgage Loan;
(xviii) 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;
(xix) 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;
(xx) 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; and
(xxi) 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;
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.
"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 Purchase and Sale Agreements": The Mortgage Loan
Purchase and Sale Agreement dated as of April 14, 2004 between Bank of America
and the Depositor and the Mortgage Loan Purchase and Sale Agreement dated as of
April 14, 2004 between BSCM 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:
(xxii) the loan number, the control number and the trust mortgage loan
identification number;
(xxiii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property.
(xxiv) (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");
(xxv) the original principal balance;
(xxvi) the Cut-off Date Balance;
(xxvii) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(xxviii) the Due Date;
(xxix) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (other than with respect to Mortgage Loans that are
interest-only for some or all of their respective loan terms then in such case
the amortizing debt service);
(xxx) the Administrative Fee Rate (inclusive of the Master Servicer Fee
Rate, the Trustee Fee Rate, and the Primary Servicing Fee Rate);
(xxxi) the Primary Servicing Fee Rate;
(xxxii) the Master Servicing Fee Rate;
(xxxiii) whether the Mortgagor's interest in the related Mortgaged
Property is or includes a Ground Lease;
(xxxiv) 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;
(xxxv) the original amortization term;
(xxxvi) whether the Mortgage Loan is an ARD Loan; and
(xxxvii) 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 Sellers": Bank of America and its successors and
assigns and BSCM and its successors and assigns.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage 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 Mortgage 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
Mortgage 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 Mortgage 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
Mortgage Loan. With respect to any Cross Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Fee": As defined in Section 3.08.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, the Default Charges referred to in clause fifth of Section 3.27(a) and
Section 3.27(c), which 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 Mortgage Loan or related
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect minus the related Administrative Fee Rate. For
purposes of calculating the Pass-Through Rate for each Class of Certificates
(other than the Residual Certificates) from time to time, the Net Mortgage Rate
for any Mortgage Loan will be calculated without regard to any modification,
waiver or amendment of the terms of such Mortgage Loan subsequent to the Closing
Date.
"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 entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, 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), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Loan that, as determined by the Master Servicer or, if applicable, the
Trustee 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 from Default Charges, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage 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 Mortgage
Loan or REO Property (without giving effect to potential recoveries on
deficiency judgments or recoveries from guarantors).
"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 either Mortgage Loan Seller, as the case
may be.
"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 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 Mortgage 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,
Class XP Certificates, for any Distribution Date, the Class XC Pass-Through Rate
and Class XP Pass-Through Rate, respectively.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Mortgage 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, 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 B Certificates; third, the
Class C Certificates; fourth, the Class D Certificates; fifth, the Class E
Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; eighth, the Class H Certificates; ninth, the Class J Certificates;
tenth, the Class K Certificates; eleventh, the Class L Certificates; twelfth,
the Class M Certificates; thirteenth, the Class N Certificates; fourteenth, the
Class O Certificates; fifteenth, the Class P Certificates; and last, the
respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
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 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 Mortgage
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 Evergreen
Portfolio C Mezzanine Loan or the PPG Place Mezzanine Loan, any "qualified
transferee" with respect to which each Rating Agency has confirmed in writing
that the holding of such 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 certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society for Testing and Materials.
"Plan": As defined in Section 5.02(c).
"PPG Place Mezzanine Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of December 22, 2003 by and between the PPG
Place Mezzanine Lender as "Senior Lender" and Bank of America as "Mezzanine
Lender".
"PPG Place Mezzanine Lender": Bank of America or its permitted
successors or assigns.
"PPG Place Mezzanine Loan": That certain mezzanine loan related to
the PPG Place Mortgage Loan, which is evidenced by that certain Mezzanine Loan
Agreement, dated as of December 22, 2003 by and among FOAGP LLC, Fourth Avenue
Limited Partnership, and the PPG Place Mezzanine Lender.
"PPG Place Mortgage Loan": That certain Mortgage Loan indentified as
Loan No. 57698 on the Mortgage Loan Schedule.
"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 REMIC I Regular Interests and the REMIC II Regular 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 (or, in the case
of the Mortgage Loan with a Due Date on the 10th day of each calendar month,
ending on the last day of the related interest accrual period), inclusive.
"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 Mortgage Loan or any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Los Angeles, California, 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 Prepayment": Any voluntary payment of principal made by
the Mortgagor on a Mortgage 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
April 1, 2004, relating to the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
A-5, Class XP, Class B, Class C, Class D and Class E 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 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 to but not including the Due Date in the
Collection Period of purchase, (b) all related unreimbursed Master Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances that are
unreimbursed from related collections on such Mortgage Loan, (c) all accrued and
unpaid Advance Interest in respect of related Advances, (d) any Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or other party or from Insurance Proceeds or
Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any) payable in
connection with a purchase of a Mortgage Loan and (f) any cost, fees and
expenses of enforcement (including attorneys fees) of a repurchase obligation
pursuant to Section 2.03(h) of this Agreement. With respect to any REO Property,
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 unreimbursed
Servicing Advances, (c) all accrued and unpaid Advance Interest in respect of
related Advances, (d) any Additional Trust Fund Expenses in respect of such REO
Property (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 of this Agreement. The
Purchase Price of any Mortgage Loan or REO Property is intended to include,
without limitation, principal and interest previously advanced with respect
thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgage Loan, Mortgaged Property or REO Property, an Independent MAI designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan 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; (vi) has a then current loan-to-value ratio not higher than, and
a then current debt service coverage ratio not lower than, the loan-to-value
ratio and debt service coverage ratio, respectively, of the Defective Mortgage
Loan as of the Closing Date; (vii) has comparable prepayment restrictions to
those of the Defective Mortgage Loan, (viii) will comply (except in a manner
that would not be adverse to the interests of the Certificateholders (as a
collective whole) in or with respect to such mortgage loan), as of the date of
substitution, with all of the representations relating to the Defective Mortgage
Loan set forth in or made pursuant to the related Mortgage Loan Purchase and
Sale Agreement; (ix) has a Phase I Environmental Assessment and a property
condition report relating to the related Mortgaged Property in its Servicing
File, which Phase I Environmental Assessment will evidence that there is no
material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law, and which property condition report will evidence that the
related Mortgaged Property is in good condition with no material damage or
deferred maintenance; and (x) constitutes a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4) of the Code; provided, however, that if
more than one mortgage loan is to be substituted for any Defective Mortgage
Loan, then all such proposed Replacement Mortgage Loans shall, in the aggregate,
satisfy the requirement specified in clause (i) of this definition and each such
proposed Replacement Mortgage Loan shall, individually, satisfy each of the
requirements specified in clauses (ii) through (x) of this definition; and
provided, further, that no mortgage loan shall be substituted for a Defective
Mortgage Loan unless (x) such prospective Replacement Mortgage Loan shall be
acceptable to the Directing Certificateholder (or, if there is no Directing
Certificateholder then serving, to the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), in its (or
their) sole discretion, and (y) each Rating Agency shall have confirmed in
writing to the Trustee that such substitution will not in and of itself result
in an Adverse Rating Event with respect to any Class of Rated Certificates (such
written confirmation to be obtained by, and at the expense of, the related
Mortgage Loan Seller effecting 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,
the Distribution Date in November 2038.
"Rating Agency": Each of Xxxxx'x and S&P.
"Realized Loss": With respect to each Defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any REO
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 Mortgage Loan or REO Loan, as the case may be, as of the Due
Date related to the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO
Loan, as the case may be, at the related Mortgage Rate to but not including the
Due Date related to the Collection Period in which the Final Recovery
Determination was made, plus (iii) any related unreimbursed Servicing Advances
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (iv) all payments and proceeds, if any,
received in respect of such Collection Period related to the Mortgage 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 Mortgage 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 Mortgage 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 Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, 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.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"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.
"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 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 Sellers with respect to such Mortgage Loans, (ii) any REO
Property acquired in respect of a Mortgage Loan and all payments and proceeds of
such REO Property; (iii) 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 Agreements with respect to such Mortgage Loans and (v) such amounts on or
with respect to clauses (i) or (ii) 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).
"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 2004-2,
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.
"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 2004-2,
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, that 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, 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:
(g) 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);
(h) 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;
(i) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(j) 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
(k) 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": 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 2004-2, REO Account." Any such account or accounts shall be
an Eligible Account.
"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. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Loan. In addition, Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) and Workout-Delayed
Reimbursement Amounts with respect to such REO Loan that were reimbursed from
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso of the
definition of "Principal Distribution Amount", shall be deemed outstanding until
recovered or until a Final Recovery Determination is made. All amounts payable
or reimbursable to the Master Servicer, the Special Servicer, the Trustee and/or
the Fiscal Agent in respect of the related Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Advances, together with any Advance Interest accrued
and payable to the Master Servicer, the Special Servicer, 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. Collections in
respect of each REO Loan (exclusive of the amounts to be applied to the payment
of, or to be reimbursed to the Master Servicer or the Special Servicer for the
payment of, Servicing Fees, Special Servicing Fees, Additional Master Servicing
Compensation, Additional Special Servicing Compensation, Liquidation Fees, the
costs of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of Nonrecoverable Advances
(including interest on such Nonrecoverable Advance) and Workout-Delayed
Reimbursed Amounts with respect to such REO Loan, that were reimbursed from
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso of the
definition of "Principal Distribution Amount"; second, as a recovery of accrued
and unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, in accordance with the Servicing
Standard of the Master Servicer or the Special Servicer, as applicable, as a
recovery of any other amounts due and owing in respect of such REO Loan; 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.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
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 Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"Replacement Mortgage Loan" Any mortgage loan that is substituted by
the related Mortgage Loan Seller for a Defective Mortgage Loan as contemplated
by Section 2.03.
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims Paying Ratings": With respect to any insurance
carrier, claims paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the claims
paying ability of such insurance carrier: 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 Mortgage Loan
documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage 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": The 90-day period following the end
of the applicable Initial Resolution Period.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"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.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage 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 Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class XC and Class XP Certificate.
"Senior Principal Distribution Cross Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
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 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 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 and (xii) CMSA Financial File.
"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 Mortgage Loan, all customary, reasonable and necessary "out-of-pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee or Fiscal Agent) in connection with the
servicing of a Mortgage 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
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
and (e) the operation, management, maintenance and liquidation of any REO
Property; provided that notwithstanding anything herein to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan 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 and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Mortgage Loans, to service and administer the Mortgage Loans 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 Mortgage Loans, the full collection
of all Prepayment Premiums that may become payable under the Mortgage Loans and,
in the case of the Special Servicer, if a Mortgage 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 Mortgage Loan to the Certificateholders, 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
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 Mortgage
Loan, any of the following events:
(l) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Loan documents, which failure continues, or the
Master Servicer determines, in 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, for one
Business Day beyond the related maturity date or, if the related Mortgagor
has delivered to the Master Servicer, on or before the related maturity
date, a refinancing commitment reasonably acceptable to the Master
Servicer, for such longer period, not to exceed 60 days beyond the related
maturity date, during which the refinancing would occur; or
(m) the Master Servicer has determined, in its reasonable, good
faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required under
the related Mortgage Loan documents is likely to occur within 30 days and
either (i) the related Mortgagor has requested a material modification of
the payment terms of the Mortgage Loan or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(n) the Master Servicer 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 Mortgage Loan, which
default has continued unremedied for the applicable cure period under the
terms of the Mortgage Loan (or, if no cure period is specified, for 60
days); or
(o) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Mortgagor under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor; or
(p) 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
(q) 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
(r) 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 Mortgage 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 Mortgage 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
Mortgage 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 Mortgage
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 evidencing a $1,000 denomination
or, in the case of a Class X Certificate, a 100% Percentage Interest.
"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 and each REO 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 with an unpaid principal balance greater than or
equal to $20,000,000, 0.15% (15 basis points) per annum, and with respect to
each Specially Serviced Loan and each REO Loan with an unpaid principal balance
less than $20,000,000, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Mortgage Loan as to which there then
exists a Servicing Transfer Event. Upon the occurrence of a Servicing Transfer
Event with respect to any Mortgage Loan, such Mortgage Loan shall remain a
Specially Serviced Loan until the earliest of (i) its removal from the Trust
Fund, (ii) an REO Acquisition with respect to the related Mortgaged Property,
and (iii) the cessation of all existing Servicing Transfer Events with respect
to such Mortgage Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage 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 Mortgage 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 1.02 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.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Loan, as the case may be, shall be zero
commencing as of the Distribution Date in the Collection Period next following
the Collection Period in which such Liquidation Event occurred.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"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 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 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 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 Internal Revenue
Service 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 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 Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"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 REMIC I, REMIC II
and the Grantor Trust.
"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
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 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 0.0022% 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 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 REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Mortgage Loan or related REO Property
in respect of which the Advance was made.
"Uncertificated Distributable Interest": 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, 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.
"Underwriter": Each of Banc of America Securities LLC, Bear, Xxxxxxx
& Co. Inc., Xxxxxxx, Sachs & Co. and Wachovia Capital Markets, LLC.
"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).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates in proportion
to the respective Class Principal Balances of their Certificates, and 2% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates
(allocated, pro rata, between the Class XP and Class XC Certificates based upon
their Notional Amounts). None of the Class R-I nor the 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, weighted on the basis of
the respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Mortgage 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 Mortgage
Loan, the amount of any Advance made with respect to such Mortgage Loan on or
before the date such Mortgage Loan becomes (or, but for the making of three
monthly payments under its modified terms, would then constitute) a Corrected
Mortgage Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Mortgage Loan
becomes a Corrected Mortgage Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Loan, 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 with an
unpaid principal balance greater than or equal to $20,000,000 as to which a
Workout Fee is payable, 0.75% (75 basis points) per annum, and with respect to
each Corrected Loan with an unpaid principal balance less than $20,000,000 as to
which a Workout Fee is payable, 1.00% (100 basis points) per annum.
Section 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related Mortgage Loan documents
and, in the absence of such express provisions, in accordance with the Servicing
Standard. All amounts collected by or on behalf of the Trust in respect of or
allocable to any particular Mortgage Loan in the form of payments from
Mortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Loan documents and, in the
absence of such express provisions or if and to the extent that such terms
authorize the lender to use its discretion, shall be applied: first, as a
recovery of Nonrecoverable Advances (including interest on such Nonrecoverable
Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from
general collections on the Mortgage Loans and resulted in principal distributed
to the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", and, if applicable, unpaid
related Liquidation Expenses and any outstanding related Additional Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest (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 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.
(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
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
(f) For the one Mortgage Loan that has a Due Date on the 10th of
each month, the Master Servicer has agreed to advance the Monthly Payment each
month on the related Master Servicer Remittance Date; therefore, each Monthly
Payment under such Mortgage Loan, to the extent paid by the related Borrower or
advanced by the Master Servicer, the Trustee or the Fiscal Agent, will be deemed
to be received within the Collection Period that ends in the month in which the
related Due Date occurs.
Section 1.03 Cross-Collateralized Mortgage Loans.
(a) Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement shall be interpreted in a manner consistent with
this Section 1.03; 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 1.04 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2004-2". 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
Agreements 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 applicable 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; and (iii) such funds or assets that from time to
time are deposited into the Certificate Account, the Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and the REO Account (if
established). This conveyance is subject to the rights of the Sub-Servicers
pursuant to the Sub-Servicing Agreements, which rights are subject in any event
to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisitions as purchases 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 Sellers, at the Mortgage Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale Agreements, 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 Sellers. 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
Sellers 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 related 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. None of the Trustee, the Fiscal Agent, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by either Mortgage Loan Seller or the Depositor to comply with the
document delivery requirements of the Mortgage Loan Purchase and Sale Agreements
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 April 2004 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account, or the REO Account, and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
under the Mortgage Loan Purchase and Sale Agreements, (iii) the possession by
the Trustee or its agent of the Mortgage Notes with respect to the Mortgage
Loans subject hereto from time to time and such other items of property 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 75 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee), each
assignment of Mortgage and assignment of Assignment of Leases (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) in favor of the Trustee referred to in clauses (iv) and (v) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each original UCC-2 and UCC-3 in favor of the
Trustee referred to in clause (viii) of the definition of "Mortgage File" that
has been received by the Trustee or a Custodian on its behalf. Upon request of
the Master Servicer (if reasonably necessary for the ongoing administration
and/or servicing of the related Mortgage Loan by the Master Servicer) and at the
expense of the related Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of any such assignment that has been received by the
Trustee. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording, and each such UCC-2
and UCC-3 shall reflect that the file copy thereof should be returned to the
Trustee following filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases the Trustee shall obtain therefrom a copy of the recorded
original at the expense of the related Mortgage Loan Seller. The Trustee may
assume for purposes of recordation of each UCC-2 and UCC-3 that the Mortgage
File containing the related UCC-1 includes one state level UCC Financing
Statement filing in the state of incorporation of the related Borrower for each
Mortgaged Property (or with respect to any 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 related Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the related
Mortgage Loan Purchase and Sale Agreement, a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall, upon receipt
thereof, cause the same to be duly recorded or filed, as appropriate with any
re-recording, re-filing or rejection expenses at the expense of such Mortgage
Loan Seller. If such Mortgage Loan Seller has been so notified and has not
prepared a substitute document or cured such defect, as the case may be, within
60 days, the Trustee shall promptly notify the Master Servicer, the Special
Servicer, the Rating Agencies 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 such Mortgage Loan Seller and acquired by the Depositor from such
Mortgage Loan Seller, all as more particularly provided for in the related
Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer or its designee, on or before the Closing
Date, the following items: (i) originals or copies of all financial statements,
appraisals, environmental/engineering reports, leases, rent rolls and tenant
estoppels in the possession or under the control of such Mortgage Loan Seller
that relate to the Mortgage Loans transferred by such Mortgage Loan Seller to
the Depositor and, to the extent they are not required to be a part of a
Mortgage File in accordance with the definition thereof, originals or copies of
all documents, certificates, letters of credit, environmental insurance policies
and related endorsements, and opinions in the possession or under the control of
such 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 attorney client
privileged communications and confidential credit analysis of the client or are
to be retained by a sub-servicer that will continue to act on behalf of the
Depositor or its designee); and (ii) all unapplied Reserve Funds and Escrow
Payments in the possession or under the control of such Mortgage Loan Seller
that relate to, and that are required for the ongoing administration and
servicing of, the Mortgage Loans transferred by such Mortgage Loan Seller to the
Depositor. The Master Servicer shall hold all such documents, records and funds
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, the Trustee shall re-assign any rights that such Mortgage
Loan Seller had with respect to representations and warranties made by a third
party originator to such Mortgage Loan Seller under the related Mortgage Loan
Purchase and Sale Agreement to such Mortgage Loan Seller in respect of any such
Mortgage Loan.
Section 2.02 Acceptance of 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 Sellers in respect of the Mortgage Loans, and that it holds and
will hold all other assets included in REMIC I in trust for the exclusive use
and benefit of all present and future Certificateholders and the Trustee as
holder of the REMIC I Regular Interests.
(b) On or about the seventy-fifth day following the Closing Date
(and, if any exceptions are noted or if the recordation/filing contemplated by
Section 2.01(c) has not been completed (based solely on receipt by the Trustee
of the particular documents showing evidence of the recordation/filing), every
90 days thereafter until the earliest of (i) the date on which such exceptions
are eliminated and such recordation/filing has been completed, (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund, and (iii)
the second anniversary of the Closing Date), the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to each Mortgage Loan, and the Trustee shall, subject to Sections 1.03, 2.02(c)
and 2.02(d), certify in writing (substantially in the form of Exhibit F) to each
of the other parties hereto, the Mortgage Loan Sellers 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" and, in the case of a wellness center property, the documents specified in
clause (viii) 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). 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 a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Sellers 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 Sellers as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), in clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage
on a wellness center, in clause (viii) 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.
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 and the related Mortgage
Loan Seller.
(b) If necessary, the Trustee shall request each Mortgage Loan
Seller to comply with Section 4(c) of the related Mortgage Loan Purchase and
Sale Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes aware of any
failure on the part of either 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 related Mortgage Loan Seller in
writing of such Material Document Defect or Material Breach, as the case may be,
and direct the such Mortgage Loan Seller that it must, not later than 90 days
from the earlier of (i) its discovery of such Material Document Defect or
Material Breach and (ii) its receipt of notice of such Material Document Defect
or Material Breach (such 90-day period, the "Initial Resolution Period"),
correct or cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, or repurchase the affected Mortgage Loan (as,
if and to the extent required by the related Mortgage Loan Purchase and Sale
Agreement), at the applicable Purchase Price; provided that if such Mortgage
Loan Seller certifies to the Trustee in writing (i) that such Material Document
Defect or Material Breach, as the case may be, does not relate to whether the
affected Mortgage Loan is a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such party commenced and is
diligently proceeding with the cure of such Material Document Defect or Material
Breach, as the case may be, within the applicable Initial Resolution Period, and
(iv) that such party anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period (a
copy of which certification shall be delivered by the Trustee to the Master
Servicer, the Special Servicer and the Directing Certificateholder, then such
Mortgage Loan Seller shall have an additional 90-day period to complete such
correction or cure (or, if it fails to complete such correction or cure, to
repurchase the affected Mortgage Loan); and provided, further, that, in lieu of
effecting any such repurchase (but, in any event, no later than such repurchase
would have to have been completed), such Mortgage Loan Seller shall be
permitted, during the 3-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 with one or more Qualifying Substitute Mortgage Loans and
to pay a cash amount equal to the applicable Substitution Shortfall Amount,
subject to any other applicable terms and conditions of the related Mortgage
Loan Purchase and Sale Agreement and this Agreement. If any substitution for a
Deleted Mortgage Loan is not completed in all respects by the end of the
three-month (or, if applicable, the two-year) period contemplated by the
preceding sentence, such 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 basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related Mortgage Loan documents provide that a Mortgage
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 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) 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) 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 either REMIC I or REMIC II as a
REMIC under the Code, or, in the case of a Cross-Collateralized Mortgage Loan,
to forbear from enforcing any remedies against the other's Primary Collateral,
but each is permitted to exercise remedies against the Primary Collateral
securing its respective affected Cross-Collateralized Mortgage Loans or
Mortgaged Properties, including, with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Cross-Collateralized Mortgage Loans or
Mortgaged Properties held by such party, then both parties shall forbear from
exercising such remedies until the related Mortgage Loan documents can be
modified to remove the threat of impairment as a result of the exercise of
remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the related Mortgage Loan Seller as contemplated by
this Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the affected Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in April 2004 and on
or prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
date of substitution, shall not be part of the Trust Fund and are to be remitted
by the Master Servicer to the party effecting the related substitution promptly
following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03, the Master
Servicer shall direct such Mortgage Loan Seller to amend the Mortgage Loan
Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable,
the substitution of the related Replacement Mortgage Loan(s); and, upon its
receipt of such amended Mortgage Loan Schedule, the Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit D
attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03 has been
deposited into the Certificate Account, and further, if applicable, upon receipt
of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with the certification
referred to in Section 2.03(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 related Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer, the Trustee and/or the Fiscal Agent pursuant to this Section 2.03(g),
shall be payable to each of them, first, by the related Mortgage Loan Seller to
the extent such Mortgage Loan Seller was required to repurchase the affected
Mortgage Loan, and then as Servicing Advances in respect of the affected
Mortgage Loan.
(h) The applicable 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 with respect to Mortgage
Loans sold by the related Mortgage Loan Seller. If a 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 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 such Mortgage Loan Seller in
respect of its obligations under Section 4 of the related Mortgage Loan Purchase
and Sale Agreement, the Master Servicer shall also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer 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
such Mortgage Loan Seller because such Mortgage Loan Seller either failed, or
was not required, to cure the subject actual or alleged Breach or Document
Defect or repurchase/replace the affected related Mortgage Loan, shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
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 a Mortgage Loan
Seller under the related 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).
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,
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, will 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 Mortgage Loan documents and assignments thereof
that are contemplated by this Agreement to be completed after the Closing
Date.
(x) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans
to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Mortgage Loan as was transferred to it by the related Mortgage Loan Seller
pursuant to the related 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 either 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, as of the Closing
Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will 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 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 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
Mortgage Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or, any of its officers or employees that is involved in the
servicing or administration of the Mortgage Loans has been refused such
coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Mortgage 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, 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 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
Mortgage 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, 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 Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or that is applicable
to it or any of its assets, which default, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 [Reserved].
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, the Class R-I Certificates in authorized
denominations. 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 Designation of Grantor Trust.
The Class P Certificates, exclusive of the portion thereof
representing a "regular interest" in REMIC II, 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 part of 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 Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and any REO Properties 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
in accordance with any and all applicable laws, the terms of this Agreement, the
terms of the respective Mortgage Loans, 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, and (ii) the Special Servicer shall service
and administer (x) each Mortgage Loan (other than a Corrected Loan) as to which
a Servicing Transfer Event has occurred and is continuing, and (y) each REO
Property; 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 the Special Servicer (with respect to
Specially Serviced Loans), 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 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 Evergreen
Portfolio C Mortgage Loan and the PPG Place Mortgage Loan is subject to the
terms and conditions of the related Mezzanine Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Loans) and the
Special Servicer (with respect to Specially Serviced Loans) shall undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans and shall follow such collection procedures as
are consistent with applicable law, the express terms of this Agreement and the
related Mortgage 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 Mortgage 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 Mortgage 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 Mortgage
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 Mortgage Loan documents.
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 Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments received by it with respect to the Mortgage Loans
shall be deposited and retained. Subject to any terms of the related Mortgage
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 Mortgage 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 Mortgage 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 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
Mortgage Loan documents; provided that if such Mortgage 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 Mortgage 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 Mortgage
Loans, but subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to each 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 Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit; provided that this sentence shall not be construed to limit the rights
of the Master Servicer on behalf of the Trust to enforce any obligations of the
related Mortgagor under such Mortgage Loan.
(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 Mortgage Loans shall be deposited and
retained. As and to the extent consistent with the Servicing Standard and the
related Mortgage Loan documents, the Master Servicer may make withdrawals of
amounts so deposited, and draws under any Letter of Credit delivered in lieu of
Reserve Funds, to pay for, or to reimburse the related Mortgagor in connection
with, the costs associated with the related tenant improvements, leasing
commissions, repairs, replacements, capital improvements and/or environmental
testing and remediation, litigation and/or other special expenses at or with
respect to the related Mortgaged Property for which such Reserve Funds were
intended or such Letter of Credit was delivered and, in the case of a Reserve
Fund constituting debt service reserve accounts, to apply amounts on deposit
therein in respect of principal and interest on the related Mortgage Loan. In
addition, as and to the extent consistent with the Servicing Standard and the
related Mortgage Loan documents, the Master Servicer may make withdrawals of
amounts so deposited, and draws under any Letter of Credit so delivered, to
prepay the Mortgage 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 Mortgage 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 Mortgage 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
Mortgage 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
Mortgage Loan documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a 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 Mortgage 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 Mortgage 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 Mortgage Loan and report any such
failure to the Special Servicer, the Trustee 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 and the
Directing Certificateholder if the Master Servicer shall determine that any
Mortgagor has failed to perform its obligations under the related Mortgage Loan
documents in respect of environmental matters.
Section 3.04 Certificate Account, the Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account and the Excess
Liquidation Proceeds 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 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 related Mortgage Loan Seller or its related designee, with negotiable
instruments endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans together
with any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03 of this Agreement; and
(x) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor.
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 Mortgage Loan (for the avoidance of
doubt, not including any REO Loan), the Special Servicer shall promptly, but in
no event later than one Business Day after receipt of available funds, remit
such amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement. Any such amounts
received by the Special Servicer with respect to an REO Property 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 REMIC I Regular Interests, and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) hereof with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the related Distribution Date.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
(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. The REMIC I
Distribution Account shall be established and maintained as an Eligible Account
or as a sub-account of the Distribution Account. With respect to each
Distribution Date, the Trustee shall withdraw or be deemed to withdraw from the
REMIC I Distribution Account and deposit or be deemed to deposit into the REMIC
II Distribution Account on or before such date the amount of the Available
Distribution Amount (including P&I Advances) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests pursuant to Section
4.01(a)(i) and Section 4.01(c)(iv) hereof on such date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the 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) hereof on such date.
(iii) [Reserved].
(iv) The Trustee shall establish and maintain one or more accounts
or sub-accounts (collectively, the "Excess Liquidation Proceeds Account")
to be held 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.
(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
REMIC I Distribution Account, and the REMIC II Distribution Account, if
established, 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 REMIC I
Distribution Account, the REMIC II Distribution Account, the Excess Interest
Distribution Account and, if established, the Excess Liquidation Proceeds
Account prior to any change thereof.
(e) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account 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);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any Mortgage Loan or REO Loan 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;
(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 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 as to which such Servicing Advance was made;
(vii) 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, for any unreimbursed Advances
made thereby that have been determined to be Nonrecoverable Advances or
for any Workout-Delayed Reimbursement Amounts;
(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) 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, 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 any Mortgage Loan or related REO 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 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;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, 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, costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties, 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, 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), 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 Sellers, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage 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 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.
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.
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, 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, each in its sole discretion (with such
Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement
Amounts). Notwithstanding the foregoing, at any time after such a determination
to obtain reimbursement over time, the Master Servicer, the Special Servicer,
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
15 days 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; 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 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.
(b) The Trustee may, from time to time, make withdrawals from 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 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 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 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 REMIC I Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
Taxes imposed on REMIC I or REMIC II shall be allocated to the
related REMIC.
(c) The Trustee shall be deemed to make withdrawals from the REMIC
II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class R-I
Certificates) 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.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, Excess Liquidation
Proceeds Account and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account and the Interest
Reserve Account, the Special Servicer may direct any depository institution
maintaining each REO Account, and the Trustee may direct any depository
institution maintaining 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. The Master
Servicer (with respect to Permitted Investments of amounts in the Certificate
Account, the Interest Reserve 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 the
Trustee (with respect to the REMIC I Distribution Account, the REMIC II
Distribution Account, the Excess Interest Distribution Account and the Excess
Liquidation Proceeds 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 and the Servicing Account) or the Special Servicer
(in the case of each REO Account) and the Trustee (in the case of the REMIC I
Distribution Account, the REMIC II Distribution Account, the Excess Interest
Distribution Account and the Excess Liquidation Proceeds 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 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
REMIC I Distribution Account, the REMIC II Distribution Account, the Excess
Interest Distribution Account and the Excess Liquidation Proceeds 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 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 REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess Interest Distribution
Account and the Excess Liquidation Proceeds 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 REMIC I Distribution Account, the REMIC II
Distribution Account, the Excess Interest Distribution Account and the Excess
Liquidation Proceeds 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 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
Mortgage Loan documents; provided that, if and to the extent that any such
Mortgage 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, with a view
towards requiring insurance comparable to that required under other Mortgage
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 Mortgage 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/or "A" from S&P (or in such other form and
amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by the relevant
Rating Agency, result in an Adverse Rating Event. All such insurance policies
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of the Mortgage Loans), or shall
name the Trustee as the insured, with loss payable to the Special Servicer on
behalf of the Trustee (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, 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 Mortgage 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
Mortgage Loan, notwithstanding that the terms of such Mortgage 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 to enforce any obligations
of the related Mortgagor under such Mortgage 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.
Notwithstanding the foregoing, if the Mortgage Loan documents
specifically and expressly set forth terms requiring insurance coverage against
terrorist or similar acts for a Mortgage Loan with a Stated Principal Balance
greater than $20,000,000, then the Master Servicer and the Special Servicer
shall enforce the terms of the related Mortgage 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 Mortgage Loan documents do not set forth specific terms requiring
insurance coverage against terrorist or similar acts and a Mortgage 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 Mortgage 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
Mortgage 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 Mortgage Loan is greater than $20,000,000. If the
Stated Principal Balance of the Mortgage 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. 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 Mortgage Loan, if a Mortgage
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 Mortgage 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 Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A2"
from Xxxxx'x and/or "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(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 Mortgage 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, 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 "A" from
S&P and "A2" from Xxxxx'x (if so rated by Xxxxx'x), 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
"A" from S&P and "A2" from Xxxxx'x (if so rated by Xxxxx'x), 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 Mae 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 "A" from S&P
and "A2" from Xxxxx'x (if so rated by Xxxxx'x), 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 Mortgage Loan that contains a provision in the nature
of a (i) "due-on-sale" clause, that by its terms (1) provides that such Mortgage
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; or (2) provides that such
Mortgage Loan may not be assumed without the consent of the mortgagee in
connection with any such sale or other transfer, for so long as such Mortgage
Loan is included in the Trust Fund, or (ii) as to each Mortgage Loan that
contains a provision in the nature of a "due-on-encumbrance" clause, that by its
terms: (1) provides that such Mortgage 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; or (2) requires the consent of
the mortgagee to the creation of any such additional lien or other encumbrance
on the related Mortgaged Property, each of the Master Servicer and the Special
Servicer shall, on behalf of the Trustee as the mortgagee of record, as to those
Mortgage Loans it is obligated to service hereunder, exercise (or waive its
right to exercise) any right it may have with respect to such Mortgage Loan (x)
to accelerate the payments thereon, or (y) to withhold its consent to any such
sale or other transfer, in a manner consistent with the Servicing Standard.
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, unless both the Master Servicer
and the Special Servicer shall have followed the procedures set forth for those
Mortgage Loans in the manner set forth in the immediately below clauses (i)
through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without first obtaining the consent of the
Special Servicer. The Special Servicer's consent shall be deemed given if
the Master Servicer shall have provided the Special Servicer written
notice of the matter together with all of the information set forth in the
last sentence of the first paragraph of clause (ii) below and the Special
Servicer shall not have responded in writing, via fax or e mail within ten
Business Days of such request (subject to any extensions of applicable
time periods required if the Special Servicer is required by this
Agreement to seek the consent of other third parties).
(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 Performing Loan that has a then
Stated Principal Balance of $2,500,000 or greater or (b) for any Specially
Serviced 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) [Reserved].
(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) hereof, if any Mortgage Loan:
(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) hereof, 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 loans (by
outstanding principal balance) in the Mortgage Pool, and
(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
Mortgage Loan documents or applicable law, to permit the transfer of any
Mortgaged Property, the Master Servicer or the Special Servicer, as the
case may be, may, if consistent with the Servicing Standard, enter into a
substitution of liability agreement, pursuant to which the original
Mortgagor and any original guarantors are released from liability, and the
transferee and any new guarantors are substituted therefor and become
liable under the Mortgage Note and any related guaranties and, in
connection therewith, may require from the related Mortgagor a reasonable
and customary fee for the additional services performed by it, together
with reimbursement for any related costs and expenses incurred by it. In
addition, the Master Servicer or the Special Servicer, as the case may be,
if consistent with the Servicing Standard, shall require as a condition of
its approval that the related Mortgagor pay all costs associated with such
transfer. The Master Servicer or the Special Servicer, as the case may be,
shall promptly notify the Trustee in writing of any such agreement and
forward the original thereof to the Trustee for inclusion in the related
Mortgage File.
(b) In connection with any permitted assumption of any Mortgage Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Loan) or the Special Servicer (in
the case of a Specially Serviced Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Mortgagor
for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Mortgage Loans 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
Mortgage 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 Mortgage 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 Mortgage Loan or Cross-Collateralized Group that is secured by
real properties located in multiple states, and such states include California
or another state with a statute, rule or regulation comparable to California's
"one action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. In addition, all other costs and expenses incurred in any
foreclosure sale or similar proceeding shall be paid by, and reimbursable to,
the Special Servicer as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by such Special Servicer taking into account the factors described in
Section 3.18 and the results of any Appraisal obtained pursuant to the following
sentence or otherwise, all such cash bids to be made in a manner consistent with
the Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a Defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust 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 REMIC I at any given time constitutes not more than a de minimis
amount of the assets of REMIC I within the meaning of Treasury Regulations
Sections 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.17(a), subject the Trust to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17, the Special Servicer shall not
acquire any personal property on behalf of the Trust pursuant to this Section
3.09 (with the exception of cash or cash equivalents pledged as collateral for a
Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause either of REMIC I or REMIC II 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, 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, 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 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 and the Directing Certificateholder, 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
pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, 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 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 Mortgage
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 Mortgage Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2005, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans and REO
Properties 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 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 Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and the Directing
Certificateholder. 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 Mortgage 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 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. (b) If from time to time, and as appropriate for servicing
or foreclosure of any Mortgage 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 Mortgage 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) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, the Request for Release shall be released by the Trustee to the
Master Servicer or the Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, the Master Servicer or the Special Servicer; 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.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Loan) and each related REO
Loan. As to each such Mortgage Loan and REO Loan, for each calendar month
(commencing with April 2004) 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
Mortgage Loan or is deemed to accrue from time to time during such calendar
month (or portion thereof) on such REO Loan, as the case may be, and shall be
calculated on the same Interest Accrual Basis as is applicable for such Mortgage
Loan or REO Loan, as the case may be. The Master Servicing Fee with respect to
any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. Master Servicing Fees earned with respect to any such
Mortgage Loan or REO Loan shall be payable monthly from payments of interest on
such Mortgage Loan or REO Revenues allocable as interest on such REO Loan, as
the case may be. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan or REO Loan out of the portion of
any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as interest on such Mortgage 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.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation (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;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing 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;
(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 and, in the case of checks returned for insufficient
funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans; and
(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).
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 and each REO 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 Mortgage Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each Corrected Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
payment of interest (other than Default Interest) and principal received from
the related Mortgagor on such Mortgage 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 Mortgage
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 Mortgage 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 Mortgage 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 Mortgage Loan's becoming a Corrected Loan are satisfied and,
further, shall immediately transfer such Servicing File to the new Special
Servicer if and when it becomes apparent to the Master Servicer that such
conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class, the Evergreen Porfolio C Mezzanine
Lender (if the Defaulted Mortgage Loan is the Evergreen Portfolio C Mortgage
Loan) or the PPG Place Mezzanine Lender (if the Defaulted Mortgage Loan is the
PPG Place Mortgage Loan) pursuant to any applicable purchase right set forth in
Section 3.18(c) or (l) of this Agreement or with respect to a purchase of a
related Defaulted Mortgage Loan at its fair value as determined in Section 3.18,
if any 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 of the related Mortgage Loan, (b) the purchase option of the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 9.01 of this Agreement or (c) the repurchase or
replacement of a Mortgage Loan by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase and Sale Agreement if such repurchase occurs not later
than 180 days after such Mortgage Loan Seller has been 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, or a Prepayment Premium). The Liquidation Fee with
respect to any such Specially Serviced Loan will not be payable if such Mortgage
Loan becomes a Corrected Loan.
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 (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 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; and
(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).
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.
(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 Reserve Accounts or an REO Account, and neither the Master Servicer
nor the Special Servicer shall be entitled to reimbursement for any such expense
incurred by it except as expressly provided in this Agreement. If the Master
Servicer is required to make any Servicing Advance hereunder at the direction of
the Special Servicer in accordance with Section 3.03(c), Section 3.19 or
otherwise, the Special Servicer shall promptly provide the Master Servicer with
such documentation regarding the subject Servicing Advance as the Master
Servicer may reasonably request.
(f) If the Master Servicer or the Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within ten days
after such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to the defaulting
party. If such Advance is not made by the Master Servicer or the Special
Servicer within three Business Days after such notice, then (subject to Section
3.11(h) below) the Trustee shall make such Advance. 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, 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. 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. 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. 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), which shall provide a copy thereof to the Directing
Certificateholder, 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 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, 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, 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 Mortgage Loan becomes a
Specially Serviced Loan (and, in cases where the related Mortgage 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 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
2005, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property at least once per calendar year (or, in
the case of each Mortgage Loan with an unpaid principal balance of under
$2,000,000, once every two years), if the Special Servicer has not already done
so during that period pursuant to the preceding sentence. Notwithstanding the
immediately preceding sentence, the Special Servicer with respect to any
Mortgaged Property where the related Mortgage Loan is a Specially Serviced Loan
and/or any REO Property shall inspect the related Mortgaged Property or REO
Property immediately after the debt service coverage ratio with respect to such
Mortgaged Property or REO Property falls below 1.0x. The costs of each such
inspection incurred by the Special Servicer shall be reimbursable first from
Default Charges and to the extent such Default Charges are insufficient out of
general collections. To the extent such costs are to reimbursed from general
collections, such costs shall constitute an Additional Trust Fund Expense. The
Master Servicer and the Special Servicer shall each prepare a written report of
each such inspection performed by it or on its behalf that sets forth in detail
the condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as the case may be, is aware,
(ii) any change in the condition or occupancy of the Mortgaged Property that the
Master Servicer or the Special Servicer, as the case may be, in accordance with
the Servicing Standard, is aware of and considers material, or (iii) any waste
committed on the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material. Upon request of the Trustee, the Master
Servicer and the Special Servicer shall each deliver to the Trustee a copy (or
image in suitable electronic media) of each such written report prepared by it,
in each case within 30 days following the request (or, if later, within 30 days
following the later of completion of the related inspection if the inspection is
performed by the Master Servicer or the Special Servicer, as the case may be, or
receipt of the related inspection report if the inspection is performed by a
third party). Upon request, the Trustee shall request from the Master Servicer
or the Special Servicer, as the case may be, and, to the extent such items have
been delivered to the Trustee by the Master Servicer or the Special Servicer, as
the case may be, deliver, upon request, to each of the Depositor, the Mortgage
Loan Sellers, the Directing Certificateholder, 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 June 2004,
the Special Servicer, in the case of any Specially Serviced 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 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, 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 or REO Property, the Master Servicer (or the Special
Servicer, with respect to any Specially Serviced Loan or REO Property) shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the related CMSA Operating Statement Analysis Report. The
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 shall be
maintained by the Master Servicer, and all CMSA Operating Statement Analysis
Reports relating to any Specially Serviced Loan and REO Property shall be
maintained by the Special Servicer. The Trustee shall, upon request, request
from the Master Servicer (if necessary) and, to the extent such items have been
delivered to the Trustee by the Master Servicer, deliver to the Directing
Certificateholder, any Certificateholder or, if the Trustee has in accordance
with Section 5.06 confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of such CMSA Operating Statement Analysis
(or update thereof) and, if requested, the related operating statement or rent
rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property or REO Property, the Master
Servicer (or the Special Servicer, with respect to any Specially Serviced Loan
or REO Property) shall prepare or update and forward to the Trustee (upon
request), the Master Servicer (with respect to CMSA NOI Adjustment Worksheets
prepared by the Special Servicer), the Special Servicer upon its request (with
respect to CMSA NOI Adjustment Worksheets prepared by the Master Servicer), the
Directing Certificateholder upon its request (if the Directing Certificateholder
and the Special Servicer are not the same entity), 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 Mortgage 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 and the
Directing Certificateholder 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 Mortgage 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 3:00 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), in a computer-readable medium downloadable by the Trustee, the
Special Servicer and the Directing Certificateholder (or, in the case of the
Trustee, at the Trustee's written request, in a form reasonably acceptable to
the recipient, including on a loan-by-loan basis), each of the files and reports
listed in the definition of "CMSA Investor Reporting Package" (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), providing the most recent information with respect to the Mortgage
Pool as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Mortgage Loan by loan number and property
name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website. In
connection with providing access to the Master Servicer's website, the Master
Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer deems necessary
or appropriate, conditioning access on execution of an agreement governing the
availability, use and disclosure of such information, and which may provide
indemnification to the Master Servicer for any liability or damage that may
arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c) of this
Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan document prohibiting disclosure of information
with respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and the Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Mortgage Loans
in May 2004 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File. In
addition, the Depositor shall cause each Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
Section 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Depositor, the Underwriters, the Rating Agencies, the
Directing Certificateholder, and each other on or before April 30 of each year,
beginning in 2005, an Officer's Certificate (the "Annual Performance
Certification") stating that, among other things, to the best of such officer's
knowledge, the Master Servicer or the Special Servicer, as the case may be, has
fulfilled all of its obligations under this Agreement in all material respects
throughout the preceding year (or such shorter period) or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and the action proposed
to be taken with respect thereto, and whether the Master Servicer or the Special
Servicer, as the case may be, has received any notice regarding the
qualification, or challenging the status, of any of the REMIC I or REMIC II as a
REMIC from the IRS or any other governmental agency or body; provided that the
Master Servicer and the Special Servicer shall each be required to deliver its
Annual Performance Certification by March 15 in 2005 and any year that a report
on Form 10-K is required to be filed with respect to the Certificates with the
Commission in respect of the preceding calendar year. The Trustee shall deliver
copies of the Annual Performance Certifications, upon request, to any
Certificateholder. If the same entity acts as the Master Servicer and Special
Servicer, the Annual Performance Certifications of the Master Servicer and
Special Servicer may be delivered as a single certificate.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
Section 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2005, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters, the Rating Agencies,
the Directing Certificateholder 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 USPAP, 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
USPAP, the representation is fairly stated in all material respects, subject
only to exceptions and other qualifications that, in the opinion of such firm,
USPAP requires it to report; provided that the Master Servicer and the Special
Servicer shall each be required to cause the delivery of its Annual Accountants'
Report by March 15 in 2005 and any year that a report on Form 10-K is required
to be filed with respect to the Certificates with the Commission in respect of
the preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
Section 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Fiscal Agent, the Depositor, each Rating Agency, the Directing
Certificateholder and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law, the terms of the Mortgage Loan documents or contract
entered into prior to the Closing Date or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it; provided, however, that Certificateholders and Certificate Owners shall
be required to pay their own photocopying costs. The Master Servicer and the
Special Servicer shall each be entitled to affix a reasonable disclaimer to any
information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto). In connection with
providing access to such records to the Directing Certificateholder, the Master
Servicer and the Special Servicer may each require registration (to the extent
access is provided via the Master Servicer's internet website) and the
acceptance of a reasonable disclaimer and otherwise adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer or the Special
Servicer, as applicable, deems necessary or reasonably appropriate, conditioning
access on the execution and delivery of an agreement reasonably governing the
availability, use and disclosure of such information. The failure of the Master
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of a confidentiality obligation shall not constitute a breach
of this Section 3.15. The Master Servicer and the Special Servicer may each deny
any of the foregoing persons access to confidential information or any
intellectual property that the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. Neither the Master Servicer
nor the Special Servicer shall be liable for providing or disseminating
information in accordance with the terms of this Agreement.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property 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, shall sell any REO Property by the end
of the third calendar year following the year in which the Trust acquires
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 either of REMIC I or REMIC II.
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 separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more 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. Each REO Account shall be an Eligible Account and may
consist of one account for all the REO Properties. The Special Servicer shall
deposit, or cause to be deposited, in the related REO Account, within two
Business Days of receipt, all REO Revenues, Liquidation Proceeds (net of all
Liquidation Expenses paid therefrom) and Insurance Proceeds received in respect
of an REO Property. The Special Servicer is authorized to pay out of related
Liquidation Proceeds any Liquidation Expenses incurred in respect of an REO
Property and outstanding at the time such proceeds are received. Funds in an REO
Account may be invested only in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as Additional Special Servicing Compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in an REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto 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, 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 deliver to the Master Servicer (which shall deposit such
amounts into the Certificate Account the aggregate of all amounts received in
respect of each 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 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 REO Account corresponds to
the Certificate Account. (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 is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders 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 (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 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 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 REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Master Servicer determines, in its reasonable, good faith
judgment, that such payment would be a Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any 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 Mortgage 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 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 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) shall be reasonable and customary in light of
the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property, such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
Section 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or an REO
Property 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 Sections
2.03(a), 9.01 or, in the case of a Mortgage Loan with a related Mezzanine Loan,
pursuant to the terms of the related Mezzanine Intercreditor Agreement.
(b) After the Master Servicer has pursuant to Section 3.21(a) of
this Agreement notified the Special Servicer of a Servicing Transfer Event and
in connection therewith has provided the Special Servicer with the information
required under Section 3.21(a) with respect to any Defaulted Mortgage Loan, the
Special Servicer shall determine the fair value of such Defaulted Mortgage Loan
in accordance with the Servicing Standard as hereinafter provided; provided,
however, that such determination shall be made without taking into account any
effect the restrictions on the sale of such Mortgage Loan contained herein may
have on the value of such Defaulted Mortgage Loan; provided, further, that the
Special Servicer shall use reasonable efforts promptly to obtain an Appraisal
with respect to the related Mortgaged Property unless it has an Appraisal that
is less than 12 months old and has no actual knowledge of, or notice of, any
event that in the Special Servicer's judgment would materially affect the
validity of such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within 30
days) after its receipt of such new Appraisal, if applicable. The Special
Servicer will, from time to time, but not less often than every 90 days, adjust
its fair value determination based upon changed circumstances, new information
and other relevant factors, if any, in each instance in accordance with the
Servicing Standard. The Special Servicer shall notify the Trustee, the Master
Servicer and the Majority Certificateholder of the Controlling Class promptly
upon its fair value determination and any adjustment thereto. The Special
Servicer shall also deliver to the Master Servicer and the Majority
Certificateholder of the Controlling Class the most recent Appraisal of the
related Mortgaged Property then in the Special Servicer's possession, together
with such other third-party reports and other information then in the Special
Servicer's possession that the Special Servicer reasonably believes to be
relevant to the fair value determination with respect to such Mortgage Loan
(such materials are, collectively, the "Determination Information").
Notwithstanding the foregoing, the Special Servicer shall not be required to
deliver the Determination Information to the Master Servicer, and shall instead
deliver the Determination Information to the Trustee, if the Master Servicer
will not be determining whether the Option Price represents fair value for the
Defaulted Mortgage Loan, pursuant to Section 3.18(e). The reasonable
out-of-pocket costs and expenses incurred by the Special Servicer in making its
fair value determination shall be paid and reimbursed as a Servicing Advance.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Mortgage Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Mortgage
Loan set forth in Section 3.18(l) hereof) from the Trust Fund at a price (the
"Option Price") equal to (A) if the Special Servicer has not yet determined the
fair value of such Defaulted Mortgage Loan, the sum of (1) the Stated Principal
Balance thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Prepayment Premium then payable by the Mortgagor,
to the extent the Special Servicer or the Special Servicer's assignee is
identified as the Person that will acquire the related Mortgage Loan, (3) all
related Advances for which the Trust Fund or the related Servicer 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. Notwithstanding the foregoing, for a period of
90 days after it receives notice of the Special Servicer's fair value
determination, 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, the Majority Certificateholder of the Controlling Class,
the Evergreen Portfolio C Mezzanine Lender (with respect to the Evergreen
Portfolio C Mortgage Loan) or the PPG Place Mezzanine Lender (with respect to
the PPG Place Mortgage Loan) shall not be required to pay a Liquidation Fee with
respect to any applicable purchase right under this Agreement or with respect to
a purchase of a related Defaulted Mortgage Loan 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.
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, 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 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 in the manner
set forth in Section 3.16(a). The Special Servicer may purchase any such REO
Property (at the Purchase Price therefor). The Special Servicer may also offer
to sell to any Person any REO Property, if and when the Special Servicer
determines, consistent with the Servicing Standard, that such a sale would be in
the best economic interests of the Trust Fund. The Special Servicer shall give
the Trustee, the Master Servicer and the Directing Certificateholder not less
than five 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 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 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 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 nor 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 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 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) Notwithstanding anything to the contrary herein, (i) the
Evergreen Portfolio C Mezzanine Lender may be entitled to purchase the Evergreen
Portfolio C Mortgage Loan in accordance with the terms and conditions set forth
in Section 8 of the Evergreen Portfolio C Mezzanine Intercreditor Agreement,
even after it has been purchased out of the Trust Fund pursuant to this Section
3.18, and (ii) the PPG Place Mezzanine Lender may be entitled to purchase the
PPG Place Mortgage Loan in accordance with the terms and conditions set forth in
Section 13 of the PPG Place Mezzanine 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, (x)
the Evergreen Portfolio C Mezzanine Lender as set forth in the Evergreen
Portfolio C Mezzanine Intercreditor Agreement, and (y) the PPG Place Mezzanine
Lender as set forth in the PPG Place Mezzanine Intercreditor 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 Mortgage Loan available to any Person if the
disclosure of such particular items of information is expressly prohibited by
applicable law or the provisions of any related Mortgage Loan documents. Except
as set forth in the provisos to the preceding sentence, copies of all or any
portion of any Servicing File are to be made available by the Master Servicer
upon request; however, the Master Servicer shall be permitted to require payment
of a sum sufficient to cover the reasonable out-of-pocket costs for making such
copies (other than with respect to the Rating Agencies (and the Majority
Certificateholder of the Controlling Class). The Special Servicer shall, as to
each Specially Serviced Loan and REO Property, promptly deliver to the Master
Servicer a copy of each document or instrument added to the related Servicing
File, and the Master Servicer shall in no way be in default under this Section
3.19(a) solely by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan (each such Mortgage 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
Mortgage 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 and the Directing Certificateholder. If such Appraisal is obtained from
a Qualified Appraiser, the cost thereof shall be covered by, and be reimbursable
as, a Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall determine and report to the Trustee, the
Master Servicer, the Directing Certificateholder, the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan 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 and
the Directing Certificateholder the then applicable Appraisal Reduction Amount,
if any, with respect to the subject Required Appraisal Loan.
The Directing Certificateholder has the right at any time within six
months of the date of the receipt of any Appraisal to require that the Special
Servicer obtain a new Appraisal of the subject Mortgaged Property in accordance
with MAI standards, at the expense of the Controlling Class Certificateholder.
Upon receipt of such Appraisal the Special Servicer shall deliver a copy thereof
to the Trustee, the Master Servicer and the Directing Certificateholder.
Promptly following the receipt of, and based upon, such Appraisal, the Special
Servicer shall redetermine and report to the Trustee, the Master Servicer and
the Directing Certificateholder 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 copies of all Appraisals, environmental reports and
engineering reports (or, in each case, updates thereof) obtained with respect to
any Mortgaged Property or REO Property. Upon the request of any Rating Agency or
any Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificateholder, pursuant to Section 8.12(b), the Trustee
will inform the Master Servicer or Special Servicer, as applicable, of such
request and, if necessary, the Master Servicer or Special Servicer, as
applicable, will deliver instructions, whereupon either such party, as
applicable, shall deliver copies of any of the items delivered pursuant to the
preceding sentence to such requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances 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 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool during
the most recently ended Collection Period, plus (ii) the lesser of (A) the
aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
during the most recently ended Collection Period, and (B) the aggregate of (1)
that portion of its Master Servicing Fees for the related Collection Period that
is, in the case of each and every Mortgage Loan and REO Loan for which such
Master Servicing Fees are being paid in such Collection Period, calculated at
0.01% 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.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent. In each case subject to the Servicing Standard and applicable law and
to the extent permitted by the related Mortgage Loan documents, the Master
Servicer and the Special Servicer agree not to accept any Principal Prepayments
with respect to any Mortgage Loan on a date other than the applicable due date
therefor except that the Special Servicer shall be permitted to accept Principal
Prepayments with the consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Mortgage Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Mortgage Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(k) The Master Servicer or the Special Servicer, as applicable,
shall exercise the rights, and perform the obligations, of the "Senior Lender"
or "Mortgage Lender" pursuant to each of the Evergreen Portfolio C Mezzanine
Intercreditor Agreement and the PPG Place Mezzanine Intercreditor Agreement, in
each case, as assignee thereof. In its role as such Senior Lender or Mortgage
Lender, and for so long as any of the Certificates (other than the Class R-I or
Class R-II Certificates) are outstanding, the Master Servicer shall not consent
to the amendment of the Evergreen Portfolio C Mezzanine Intercreditor Agreement
or the PPG Place Mezzanine Intercreditor Agreement without the written consent
of the Special Servicer.
(l) Subject to the Mortgage Loan documents and applicable law, the
Special Servicer shall not consent to the foreclosure of any Mezzanine Loan
other than by a Permitted Mezzanine Loan Holder and shall not consent to the
transfer of any Mezzanine Loan except to a Permitted Mezzanine Loan Holder.
(m) Notwithstanding any other provision in this Agreement, including
Section 3.08, no "due-on-sale" provision shall be triggered solely because of
the right, if any, of any Mezzanine Loan holder to foreclose upon the equity in
the related Borrower pursuant to the terms of the related Mezzanine Loan and
Mezzanine Intercreditor Agreement.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Loans) and the
Special Servicer (as to Specially Serviced Loans) 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 Mortgage Loan it is required to service and administer
hereunder without the consent of the Trustee or any Certificateholder, subject,
however, to Section 3.02, Section 3.08, and Section 3.21 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 Mortgage Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Mortgage Loan or affect the security for
such Mortgage Loan, unless the Master Servicer has obtained the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Mortgagor's request for such modification, waiver or amendment, the Master
Servicer's recommendations and analysis, and with all information
reasonably available to the Master Servicer that the Special Servicer may
reasonably request to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten Business
Days of the Special Servicer's receipt from the Master Servicer of the
Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder 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) 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 Mortgage 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 Mortgage
Loan, unless a material default on such Mortgage Loan has occurred or, in
the reasonable, good faith judgment of the Special Servicer, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce a greater recovery to Certificateholders (as a collective
whole) on a net present value basis than would liquidation;
(iii) the Special Servicer shall not extend (or, in the case of a
Performing Loan, consent to the Master Servicer's extending) the date on
which any Balloon Payment is scheduled to be due on any Mortgage Loan to a
date beyond the earliest of (A) two years prior to the Rated Final
Distribution Date and (B) if such Mortgage 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);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would result in an Adverse REMIC Event with respect
to either REMIC I or REMIC II;
(v) subject to applicable law, the related Mortgage Loan documents
and the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term of
any Mortgage Loan unless all related fees and expenses are paid by the
related Mortgagor;
(vi) with respect to Performing Loans, the Special Servicer shall
not consent to the Master Servicer's permitting any Mortgagor to add or
substitute any real estate collateral for its Mortgage 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
(vii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vi) above, any
collateral securing an outstanding Mortgage Loan, except as provided in
Section 3.09(d), or except where a Mortgage 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 Mortgage 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 Mortgage 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
Mortgage 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
Mortgage 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 Mortgage 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 Mortgage Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders 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 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 and the Directing
Certificateholder. The Special Servicer shall include with any such Officer's
Certificate the supporting documentation forming the basis for its conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Loans) and the Special
Servicer (as to Specially Serviced Loans) each may, as a condition to its
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Mortgage Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Mortgage Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Mortgage Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage 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
and the Directing Certificateholder, in writing, of any modification, waiver,
amendment or other action entered into or taken in respect of any Mortgage 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 Mortgage Loan in full together with all
payments required by the Mortgage Loan in connection with such prepayment except
for all or a portion of accrued Excess Interest; provided, that the Master
Servicer's 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 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 to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property; (iii)
grants of easements or subordinations of the lien of Mortgage 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 Mortgage
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 Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event (y) agreeing to such
modification, waiver or amendment would be consistent with the Servicing
Standard, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
(h) In connection with granting an extension of the maturity date of
any 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 Mortgage Loan documents, to thereafter
deliver to the Special Servicer, the Trustee and the Directing Certificateholder
audited operating statements on a quarterly basis with respect to the related
Mortgaged Property, provided that the Special Servicer or the Master Servicer,
as the case may be, may, in its sole discretion, waive the requirement that such
statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Mortgage Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
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 Mortgage Loan, the Master Servicer shall immediately give
notice thereof to the Directing Certificateholder, 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 Mortgage 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 Mortgage Loans on its computer
systems while such Mortgage Loans are Specially Serviced Loans, provided that no
Sub-Servicer shall take any action with respect thereto so long as such Mortgage
Loan is a Specially Serviced Loan and provided that the Master Servicer shall
assume all the Master Servicing duties with respect to that Mortgage Loan as
provided in the second succeeding paragraph. The Master Servicer shall use its
best efforts to comply with the third preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event. The Master
Servicer shall deliver to each Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificateholder that shall have
requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section. No later than ten Business Days before the Master Servicer is
required to deliver a copy of the related Servicing File to the Special
Servicer, it shall review the Servicing File and request from the Trustee any
material documents that it is aware are missing from the Servicing File. If the
related Sub-Servicer elects not to retain Specially Serviced Loans on its
computer systems, then such Sub-Servicer shall return all Mortgage Files to the
Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, the Special Servicer shall promptly give notice thereof to the
Master Servicer and to the Directing Certificateholder 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 Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03 of this Agreement, of a Cross Collateralized Loan as a result of a
Servicing Transfer Event or the re assumption of servicing responsibilities by
the Master Servicer with respect to any such 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 Loans constituting part of the same Cross-Collateralized Group;
provided that no Cross Collateralized Loan may become a Corrected Loan at any
time that a continuing Servicing Transfer Event exists with respect to another
Cross Collateralized Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage 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 Mortgage Loan information, including
correspondence with the related Mortgagor generated while such Mortgage 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 Mortgage
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 and the Directing Certificateholder a
report (the "Asset Status Report") with respect to such Mortgage Loan and the
related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Mortgage 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 does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law, the Servicing Standard
or the terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report, the Special Servicer
will revise such Asset Status Report and deliver to the Directing
Certificateholder, 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 of an affirmative approval in writing of such
revised Asset Status Report, (y) the failure of Directing Certificateholder 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, the Special Servicer shall implement the recommended
action as outlined in the most recent version of such Asset Status Report
(provided that the Special Servicer shall not take any action that is contrary
to applicable law or the terms of the applicable Mortgage Loan documents). The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement the new action in such revised report so long
as such revised report has been prepared, reviewed and either approved or not
rejected as provided above. 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 with not less than ten
Business Days' prior notice (except as provided in Section 3.08(a) hereof)
of any Special Action (as described below) that the Special Servicer or
the Master Servicer, as applicable, proposes to take and, in the case of
the Special Action described in clause (vi) below, the Special Servicer
shall also contemporaneously notify the Master Servicer; provided,
however, that if a shorter period of notice is necessary to avoid the
occurrence of an Adverse REMIC Event or a violation of the third paragraph
of this Section 3.21(e), then the required period of notice shall be such
shorter period.
The Directing Certificateholder 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 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 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 to so advise or object shall in all events be
subject to Section 3.21(f) and shall not violate the provisions of the Evergreen
Portfolio C Mezzanine Intercreditor Agreement (with respect to the Evergreen
Portfolio C Mortgage Loan) or the PPG Place Mezzanine Intercreditor Agreement
(with respect to the PPG Place Mortgage 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(e),
the Mortgage Loan documents or applicable laws, otherwise result in an Adverse
REMIC Event violate the provisions of the Evergreen Portfolio C Mezzanine
Intercreditor Agreement (with respect to the Evergreen Portfolio C Mortgage
Loan) or the PPG Place Mezzanine Intercreditor Agreement (with respect to the
PPG Place Mortgage Loan), and (z) if (a) the Directing Certificateholder and (b)
the Special Servicer or Master Servicer, as applicable, together cannot agree
upon a course of action with respect to any Special Action within 60 days of the
occurrence of the event to which such Special Action relates, then the Special
Servicer or Master Servicer, as applicable, shall implement its proposed course
of action. Subject to the foregoing, in connection with the implementation of
any Special Action or the extension of the maturity date of a Mortgage Loan, the
Master Servicer or Special Servicer shall comply with the Approval Provisions,
as applicable. For purposes hereof, "Special Action" means each of the following
actions:
(i) any 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 Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO (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
Mortgage Loan unless required by the underlying loan documents and any
release of a material portion of the real estate collateral securing the
Mortgage Loan;
(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 (except as set forth in Section
3.08) releasing a borrower from liability under a Mortgage Loan;
(viii) acceptance of a discounted payoff of a Mortgage Loan;
(ix) any release of earnout reserve funds (other than where the
underlying Mortgage Loan documents in connection with such release provide
that such release is automatic based on certain conditions set forth in
the related underlying Mortgage Loan documents); or
(x) any release of a letter of credit (other than where the
underlying Mortgage Loan documents in connection with such release provide
that such release is automatic based on certain conditions set forth in
the related underlying Mortgage Loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, no objection or direction of the Directing Certificateholder shall (A)
require or cause the Master Servicer or the Special Servicer, as applicable, to
violate the terms of any Mortgage 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 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"). The Master Servicer or Special Servicer, as applicable, shall
disregard any such direction or objection.
The Directing Certificateholder will have no liability to 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 Directing Certificateholder will not be protected
against any liability that 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 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 may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder has no duties to the Holders of any Class of Certificates
other than the Controlling Class, that the Directing Certificateholder shall not
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, that the Directing
Certificateholder, shall have no liability whatsoever for having so acted, and
no Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer 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, 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, subject to the provisions
of Section 3.22(d), terminate such rights and obligations, in either case
without payment of any fee except as set forth in Section 3.22(d); (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 Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Loan unless such Mortgage 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 Mortgage 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 Mortgage Loan that becomes a Corrected Loan;
(v) in the case of a Sub-Servicing Agreement entered into by the Master
Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer
(provided, however, that the related Sub-Servicer shall not be required to
furnish the same information to the Master Servicer more than once) and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in Section
3.12(a), either (A) shall permit the Master Servicer to make necessary inquiries
of the related borrower directly or (B) shall (subject to a cure period not to
exceed 60 days) constitute an event of default thereunder for which the Master
Servicer may terminate such Sub-Servicer without payment of any termination fee
(it being understood that notwithstanding anything to the contrary in this
clause (v), the obligations of a Sub-Servicer in respect of the second sentence
of Section 3.12(b) hereof may be limited to the provision of reports as agreed
between the Master Servicer and such Sub-Servicer and response to reasonable
inquiries from the Master Servicer with respect thereto); (vi) subject to
Section 3.08, does not authorize any Sub-Servicer to approve a modification or
assumption of any Mortgage 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
Mortgage Loan without the approval of the Special Servicer; (vii) imposes no
liability whatsoever on the Trustee or the Certificateholders with respect to
anything contained therein; and (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. 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), 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 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 Mortgage 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) 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
Mortgage Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify each of the other parties
hereto and the Trustee, and then the Trustee shall provide a copy of such notice
to the Directing Certificateholder and, in accordance with Section 8.12(b),
shall, upon request, provide a copy of such notice to each Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificateholder of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the Sub-Servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
Sub-Servicing fee), (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer and on such terms as the new Master Servicer and such Sub-Servicer
shall mutually agree (it being understood that such Sub-Servicer is under no
obligation to accept any such new Sub-Servicing Agreement or to enter into or
continue negotiations with the new Master Servicer) or (iii) to terminate such
Sub-Servicing Agreement without cause, provided that no such Sub-Servicer may be
terminated without cause unless it receives Sub-Servicer Termination
Compensation, and provided, further, that any such successor Master Servicer
must assume that portion of the Sub-Servicing Agreement listed on Schedule II
relating to Mortgage Loans sub-serviced by Midland Loan Services, Inc. pursuant
to (i) above if: (1) the actions of Midland Loan Services, Inc. were not the
cause of the termination of the Master Servicer for cause and (2) Midland Loan
Services, Inc. is otherwise then eligible pursuant to the Sub-Servicing
Agreement to act as a Sub-Servicer. For purposes hereof, a Sub-Servicer shall
receive "Sub-Servicer Termination Compensation" if any successor Master Servicer
elects to terminate such Sub-Servicer without cause (other than Midland Loan
Services, Inc., which cannot be terminated without cause), in which case either
of the following shall occur: (i) such successor Master Servicer shall pay to
such Sub-Servicer a fee (a "Sub-Servicer Termination Fee") in an amount equal to
the average of three termination fees quoted by three Persons in the business of
primary-servicing commercial mortgage loans comparable to the Mortgage Loans
(not including the Master Servicer or any Person that is then a Sub-Servicer),
which shall be selected by the Master Servicer in good faith and the names of
which shall be identified by the Master Servicer to the Sub-Servicer or (ii)
such successor Master Servicer shall agree to pay such Sub-Servicer an
interest-only strip (the "Termination Strip") out of its related Master
Servicing Fees for each Mortgage Loan serviced by such Sub-Servicer at the time
of such Sub-Servicer's termination (such strip to be calculated in the same
manner as the related Master Servicing Fees, but at a per annum rate equal to
the applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent successor
Master Servicer shall be obligated to pay any such Termination Strip agreed to
by a predecessor Master Servicer. 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. It shall be the corporate obligation (not reimbursable by the Trust
or any of the other parties to this Agreement) of the Person, who as successor
Master Servicer, terminates any Sub-Servicer without cause, and of its
successors and assigns in such capacity (to the extent contemplated by the
second preceding sentence), to pay Sub-Servicer Termination Compensation to such
terminated Sub-Servicer. 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 Mortgage 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 Mortgage Loans 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 Mortgage 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.
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. If the Special Servicer is terminated without cause, the
Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer.
Section 3.24 Confidentiality.
Notwithstanding any terms to the contrary in Section 3.19(a), the
Master Servicer and the Special Servicer will use reasonable efforts to keep
confidential and not disclose to any Person other than each other, the
Depositor, the Trustee, the Controlling Class Certificateholder, the
Sub-Servicer (with respect to any Mortgage Loans it is sub-servicing), a
Borrower (with respect to the related Mortgage Loan), any Certificateholder and
the Rating Agencies, any information that it obtains in its capacity as Master
Servicer or Special Servicer with respect to the Mortgage 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) each Mortgage Loan Seller with respect to information relating to the
Mortgage Loans transferred into the Trust by such 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 Mortgage Loans and the Mortgage Loan portfolio being serviced
(as to any Sub-Servicer, limited to its own sub-serviced portfolio), so long as
no Mortgagors are identified.
Section 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Mortgage 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 Mortgage 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 Mortgage 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 such defeasance complies with
Treasury Regulations Section 1.860G-2(a)(8). The Master Servicer shall accept as
defeasance collateral any "government security," within the meaning of Treasury
Regulations Section 1.860G-(2)(a)(8)(i), notwithstanding any more restrictive
requirements in the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $20,000,000 or more, or
constitutes 5% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, S&P and Xxxxx'x
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 Mortgage Loan documents require the consent of the lender in order for
the related Mortgagor to change the manager of the related Mortgaged Property,
the Master Servicer shall not so consent to such a change in management unless
it has received (a) the prior consent of the Special Servicer, which will be
deemed given if such party has not responded within ten Business Days (as such
period may be extended herein if the consent of the Directing Certificateholder
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 Certificate.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
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, 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 Servicing Advances made for
the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which expense was previously paid from a source other
than Default Charges received on the Mortgage Pool; and
fifth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Loan, and
otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, amounts held in the REMIC I
Distribution Account shall be withdrawn or deemed to be withdrawn (to the extent
of the Available Distribution Amount, the "REMIC I Distribution Amount") in the
case of all Classes of REMIC I Regular Interests and distributed or deemed to be
distributed on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii)
and distributed on the Class R-I Certificates as set forth in Section
4.01(a)(iii). Thereafter, until distributed to the Certificateholders, such
amounts shall be considered to be held in the REMIC II Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates (in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses on (i) the Class A-1 Certificates,
first to the REMIC I Regular Interest LA-1-1, second to the REMIC I
Regular Interest LA-1-2, third to the REMIC I Regular Interest LA-1-3,
fourth to the REMIC I Regular Interest LA-1-4 and then to the REMIC I
Regular Interest LA-1-5, in each case, pro rata, until reduced to zero,
(ii) the Class A-2 Certificates, first to the REMIC I Regular Interest
LA-2-1, second to the REMIC I Regular Interest LA-2-2, third to the REMIC
I Regular Interest LA-2-3, fourth to the REMIC I Regular Interest LA-2-4,
fifth to the REMIC I Regular Interest LA-2-5 and then to the REMIC I
Regular Interest LA-2-6, pro rata, 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, pro rata, in each case,
until reduced to zero, (iv) the Class A-5 Certificates, first to the REMIC
I Regular Interest LA-5-1 and then to the REMIC I Regular Interest LA-5-2,
pro rata, in each case, until reduced to zero, (v) 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, pro rata, in each case, until reduced to zero, (vi) 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, pro rata, in each case, until reduced to zero, (vii) 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, pro rata, in each case, until reduced to zero, (viii) the Class G
Certificates, first to the REMIC I Regular Interest LG-1 and then to the
REMIC I Regular Interest LG-2 in each case, pro rata, until reduced to
zero, (ix) the Class H Certificates, first to the REMIC I Regular Interest
LH-1 and then to the REMIC Regular Interest LH-2 in each case, pro rata,
until reduced to zero, (x) the Class J Certificates, first to the REMIC I
Regular Interest LJ-1 and then to the REMIC I Regular Interest LJ-2, in
each case, pro rata, until reduced to zero, and (xi) the Class L
Certificates, to the REMIC I Regular Interest LL-1 and then to REMIC I
Regular Interest LL-2, in each case, pro rata, 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-5, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificate Pass-Through
Rates were equal to the Weighted Average Adjusted Net Mortgage Rate and as
though the Class XC Notional Amount and the Class XP Notional Amount were
zero at all times and such that the amounts and timing of interest
distributions on each Corresponding REMIC I Regular Interest represent the
aggregate of the corresponding amounts on each Class of Corresponding
Certificates (or a pro rata portion thereof for a Class of Corresponding
Certificates with more than one Corresponding REMIC I Regular Interest)
and its related Component or Components of the Class XC and Class XP
Certificates; provided that (A) interest shall be deemed distributed on
such REMIC I Regular Interest only in the same priority and to the extent
actually distributable on such related Class of Certificates or related
Component and (B) interest distributable on a Class of Class X
Certificates shall be distributable pro rata among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Regular Certificates in the order of
priority set forth in clauses (i) through (xlix) below, satisfying in full, to
the extent required and possible, each priority before making any distribution
with respect to any succeeding priority.
(i) to distributions of interest to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, the Class
A-4 Certificates, the Class A-5 Certificates, the Class XP Certificates
and the Class XC Certificates, up to an amount equal to, and pro rata as
among such Classes in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4 Certificates and the Class A-5 Certificates in reduction of the
Class Principal Balances thereof (1) first, to the Holders of the Class
A-1 Certificates, in an amount up to the Principal Distribution Amount,
until the outstanding Class Principal Balance of the Class A-1
Certificates has been reduced to zero; (2) second, to the Holders of the
Class A-2 Certificates, in an amount up to the Principal Distribution
Amount remaining after payments to Holders of the 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;
(3) third, to the Holders of the Class A-3 Certificates, in an amount up
to the Principal Distribution Amount remaining after payments to Holders
of the 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; (4) fourth, to the
Holders of the Class A-4 Certificates, in an amount up to the Principal
Distribution Amount remaining after payments to Holders of the 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; and (5) fifth, to the Holders of
the Class A-5 Certificates, in an amount up to the Principal Distribution
Amount remaining after payments to Holders of the 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-5
Certificates has been reduced to zero;
(iii) to reimburse the Holders of the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates and 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 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;
(v) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates and
Class A-5 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;
(vi) 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;
(vii) 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;
(viii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates and Class B Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
C Certificates, in an amount (not to exceed the Class Principal Balance of
the Class C Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(ix) 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;
(x) 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;
(xi) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates, Class B Certificates and 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;
(xii) 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;
(xiii) 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;
(xiv) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates, Class B Certificates, Class C Certificates and
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;
(xv) 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;
(xvi) 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;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and 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;
(xviii) 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;
(xix) 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;
(xx) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates and 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;
(xxi) 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;
(xxii) 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;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and 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;
(xxiv) 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;
(xxv) 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;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates have been
reduced to zero, 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;
(xxvii) 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;
(xxviii) 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;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and 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;
(xxx) 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;
(xxxi) 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;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and 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;
(xxxiii) 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;
(xxxiv) 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;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and 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;
(xxxvi) 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;
(xxxvii) 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;
(xxxviii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates and 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;
(xxxix) 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;
(xl) 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;
(xli) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates and 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;
(xlii) 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;
(xliii) 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;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and 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;
(xlv) 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
(xlvi) 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 (xvii) 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, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and 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) and (xliv) 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, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and 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) and (xliv) 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, 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 will be distributed by the Trustee to the
following Classes: to the Class A-1 Certificates, Class A-2 Certificates, Class
A-3 Certificates, Class A-4 Certificates, Class A-5 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates and Class H Certificates in an amount
equal to the product of (a) a fraction whose numerator is the amount distributed
as principal to such Class on such Distribution Date, and whose denominator is
the total amount distributed as principal to the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class O Certificates and Class P
Certificates on such Distribution Date, (b) the Base Interest Fraction for the
related principal payment on such Class of Certificates, and (c) the aggregate
amount of Prepayment Premiums relating to the Mortgage Loans collected on such
principal prepayments during the related Collection Period. Any Prepayment
Premiums collected during the related Collection Period remaining after such
distributions will be distributed (i) to the holders of the Class XC and Class
XP Certificates, 70% and 30%, respectively, until and including the Distribution
Date in April 2011 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 used in accordance with the related
Mortgage Loan documents in calculating the Prepayment Premium with respect
to such Principal Prepayment and (b) whose denominator is the amount, if
any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents
in calculating the yield maintenance charge with respect to such principal
prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through Rate described in the preceding sentence, then the Base
Interest Fraction will equal zero.
(iii) No Prepayment Premiums will be distributed to the holders of
the Class J, Class K, Class L, Class M, Class N, Class O or Class P
Certificates. After the Certificate Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates have been
reduced to zero, (i) 70% and 30% 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 April 2011; 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 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 Internal Revenue Service 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
distributed by the Trustee to the Holders of the Class P Certificates.
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 (a "Distribution Date Statement"),
substantially in the form contemplated on pages C-1 through C-17 of the
Prospectus Supplement, 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 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) [Reserved];
(iv) the 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 that 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
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 and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates for
such Distribution Date;
(xiii) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xiv) any unpaid Distributable Certificate Interest in respect of
Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xv) the Pass-Through Rate for each Class of REMIC II Regular
Certificates 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;
(xvii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xviii) the Certificate Principal Balance or Notional Amount, as the
case may be, of Class of REMIC II Regular Certificates 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 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; and
(xxi) a brief description of any material waiver, modification or
amendment of any Mortgage 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 held in the Excess Liquidation Proceeds Account;
and
(xxvii) the CMSA Reconciliation of Funds Report.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xix)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) above of the description of Distribution Date Statement, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to the general public,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to the general public each month the Servicer
Reports, the CMSA Loan Setup File and the Trustee's Reports on the Trustee's
Website. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. For assistance with the above-referenced services, interested parties
may call (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 and Standard & Poor's Conquest or such other vendors as chosen by the
Depositor all electronic reports delivered or made available pursuant to Section
4.02 of this Agreement to the Certificateholders using a format mutually
acceptable to such vendors and the Trustee.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 12:00 noon (New York City time) on the third Business Day
following each Determination Date (or with respect to the CMSA Loan Periodic
Update File, by 3:00 p.m. (New York City time) on the second Business Day
following each Determination Date), the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties, would constitute a waiver of the
attorney-client privilege on behalf of the Trust or would otherwise materially
harm the Trust Fund. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure of
the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee, which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
Section 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans, 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. Any amounts held
in the Certificate 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 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 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. (000) 000-0000 (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.
(b) The aggregate amount of P&I Advances to be made in respect of
the Mortgage 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. In addition,
the aggregate amount of P&I Advances to be made in respect of the Mortgage Loans
shall include the Monthly Payment with respect to the Mortgage Loan with a Due
Date on the 10th day of each calendar month, which Advance shall not accrue
interest except to the extent such Monthly Payment is overdue and beyond any
related grace period.
(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, 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. The
determination by the Master Servicer, the Trustee or, if applicable, the Fiscal
Agent that it has made a Nonrecoverable P&I Advance 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 and the
Directing Certificateholder setting forth the basis for such determination,
together with (such determination is prior to the liquidation of the related
Mortgage 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) [Reserved].
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer, 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.
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 Regular Certificateholders on such date pursuant to Section 4.01(b),
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 that will be
outstanding immediately following such Distribution Date (provided, however,
that for purposes of this calculation, any principal collections used to pay
Workout-Delayed Reimbursement Amounts shall not reduce the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date). 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 and Class B
Certificates shall be reduced sequentially, in that order in each case, until
such excess or the related Class Principal Balance is reduced to zero (whichever
occurs first). If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of the second preceding sentence, then the respective Class
Principal Balances of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3 Certificates, Class A-4 Certificates and 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 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) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates (in the case of Realized Losses or Additional Trust Fund Expenses
on (i) the Class A-1 Certificates, first to the REMIC I Regular Interest LA-1-1,
second to the REMIC I Regular Interest LA-1-2, third to the REMIC I Regular
Interest LA-1-3, fourth to the REMIC I Regular Interest LA-1-4 and then to the
REMIC I Regular Interest LA-1-5, in each case, pro rata, until reduced to zero,
(ii) the Class A-2 Certificates, first to the REMIC I Regular Interest LA-2-1,
second to the REMIC I Regular Interest LA-2-2, third to the REMIC I Regular
Interest LA-2-3, fourth to the REMIC I Regular Interest LA-2-4, fifth to the
REMIC I Regular Interest LA-2-5 and then to the REMIC I Regular Interest LA-2-6,
pro rata, 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,
pro rata, in each case, until reduced to zero, (iv) the Class A-5 Certificates,
first to the REMIC I Regular Interest LA-5-1 and then to the REMIC I Regular
Interest LA-5-2, pro rata, in each case, until reduced to zero, (v) 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, pro rata,
in each case, until reduced to zero, (vi) 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, pro rata, in each case, until reduced
to zero, (vii) 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, pro rata, in each case, until reduced to zero, (viii) the
Class G Certificates, first to the REMIC I Regular Interest LG-1 and then to the
REMIC I Regular Interest LG-2 in each case, pro rata, until reduced to zero,
(ix) the Class H Certificates, first to the REMIC I Regular Interest LH-1 and
then to the REMIC Regular Interest LH-2 in each case, pro rata, until reduced to
zero, (x) the Class J Certificates, first to the REMIC I Regular Interest LJ-1
and then to the REMIC I Regular Interest LJ-2, in each case, pro rata, until
reduced to zero, and (xi) the Class L Certificates, to the REMIC I Regular
Interest LL-1 and then to REMIC I Regular Interest LL-2, in each case, pro rata,
until reduced to zero).
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 may be a sub-account of the Certificate Account.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account that 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 from the Certificate Account, in respect of each
Mortgage Loan that accrues interest on an Actual/360 Basis, 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 as
of the Due Date in the month preceding the month in which such Master Servicer
Remittance Date occurs, to the extent a Monthly Payment or P&I Advance is made
in respect thereof (all amounts so deposited in any consecutive January (if
applicable) and February, "Withheld Amounts"). On the Master Servicer Remittance
Date in March of each calendar year, the Master Servicer shall remit to the
Trust for deposit into the REMIC I Distribution Account the aggregate of all
Withheld Amounts on deposit in the Interest Reserve Account.
Section 4.06 Excess Interest Distribution Account.
The Trustee for the benefit of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in trust for the
benefit of the Class P 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 P 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-24; 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 and Class A-5 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 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
and Class P 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 each Class thereof may be issued in a different
denomination. Each Class of Residual Certificates will be issuable only in a
denomination representing the entire Class. With respect to any Certificate or
any beneficial interest in a Certificate, the "Denomination" thereof shall be
(i) the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Principal Balance or initial Notional Amount, as applicable, and
(iii) be in an authorized denomination, as set forth above. The Book Entry
Certificates will be issued as one or more certificates registered in the name
of a nominee designated by the Depository, and Certificate Owners will hold
interests in the Book Entry Certificates through the book entry facilities of
the Depository in the minimum Denominations and aggregate Denominations as set
forth in the above. No Certificate Owner of a Book Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at 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. 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 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 Section 4975 of the Code, or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") that
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation ss. 2510.3 101), other than (except with respect
to a Residual Certificate) an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption 95 60 or (ii) except for the Residual Certificates (which may not be
transferred to a Holder who does not make the representation described in clause
(i)(a) or (i)(b)), if such Certificate is presented for registration in the name
of a purchaser or transferee that is any of the foregoing, any Opinion of
Counsel or other certification as the Certificate Registrar may reasonably
require and in form and substance satisfactory to the Certificate Registrar and
the Depositor to the effect that the acquisition and holding of such Certificate
by such purchaser or transferee will not constitute or result in a "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar, the
Master Servicer, the Special Servicer, the Underwriters, the Initial Purchasers
or the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any such
Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) above or, with respect to the
ERISA Restricted Certificates, the Opinions of Counsel or other certification
described in clause (ii) above. The costs of any of the foregoing representation
letters, certifications or Opinions of Counsel shall not be borne by any of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Underwriters, the Initial Purchasers, the Certificate Registrar or
the Trust Fund. With respect to transfers of Book-Entry Certificates only, to
the extent the purchase or holding of a Certificate described in this Section
5.02(c) would be restricted by ERISA, the Code or Similar Law, each Certificate
Owner of such Certificate shall be deemed to represent that it is not a Person
specified in clause (i)(a) or (i)(b) above and therefore shall not be required
pursuant to this Section 5.02(c) to deliver to the Certificate Registrar the
representation letter in the form of Exhibit E attached hereto described in
clause (a) above, or the Opinion of Counsel or other certification described in
clause (ii) above. Any transfer, sale, pledge or other disposition of any such
Certificates that would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c) shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with
the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor
and its Affiliates, each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership Interest
in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as
Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service 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 Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a Book
Entry Certificate for a Definitive Certificate or Certificates. Following a
proper request for transfer or exchange, the Certificate Registrar shall,
execute and deliver at such offices or at the office of such transfer agent, as
the case may be, to the transferee (in the case of transfer) or Holder (in the
case of exchange) or send by first class mail (at the risk of the transferee in
the case of transfer or Holder in the case of exchange) to such address as the
transferee or Holder, as applicable, may request, a Definitive Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a Book
Entry Certificate representing a Non Registered Certificate is being held by or
for the benefit of a Person who is not an Institutional Accredited Investor, or
that such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right to void such transfer, if
permitted under applicable law, or to require the investor to sell such
Definitive Certificate or beneficial interest in such Book Entry Certificate to
an Institutional Accredited Investor within 14 days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2005, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) 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.
Section 5.03 Book Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
M, Class N, Class O, Class P, Class XC and Class XP 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. Each Depository Participant shall only
transfer the Ownership Interests in the Book Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. Neither the Certificate
Registrar nor the Trustee shall have any responsibility to monitor or restrict
the transfer of Ownership Interests in Certificates through the book entry
facilities of the Depository.
(b) The Depositor, the Trustee, the 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 Registrar 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 and (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, 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.
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
Class XC, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates to whom certain reports and other
information are required to be delivered hereunder, the Trustee and the Master
Servicer may rely, with respect to any such Certificates outstanding in book
entry form, on a certification, given to the Trustee and provided to the Master
Servicer, by any Person that such person is such a holder entitled to receive
such reports or information hereunder. With respect to the Class A-1 Class A-2,
Class A-2, Class A-4, Class A-5, Class XP, Class B, Class C, Class D, Class E,
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 Mortgage 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.
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
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 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. 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).
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 Mortgage 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 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 one day before the related Distribution Date, or (B) to deposit
into, or to remit to the Trustee for deposit into, the Distribution
Account on any Master Servicer Remittance Date, the full amount of any
Master Servicer Remittance Amount and Withheld Amounts, respectively,
required to be so deposited or remitted under this Agreement on such date;
or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
the applicable REO Account any amount required to be so deposited or
remitted under this Agreement that continues unremedied for three Business
Days following the date on which such deposit or remittance was first
required to be made, but in no event later than two days before the
related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however,
that if the Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the 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 as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, that if such covenant or agreement is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period shall be
extended for an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if such covenant or agreement is capable of being cured and
the REMIC Administrator is diligently pursuing such cure, such 30-day
period shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Moody's provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, that the Master Servicer or such
Special Servicer, as applicable shall have 60 days to resolve such matters
to the satisfaction of Moody's (or such longer time period as may be
agreed in writing by Moody's) prior to the downgrade of any Class of
Certificates, and in such case, such notice from Moody's shall not be
deemed to be an Event of Default; or
(xiii) either the Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from S&P's
approved special servicer list.
Each Event of Default listed above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clauses (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
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 Mortgage 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 or the Depositor, and the Trustee
has not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney in fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records reasonably requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts that shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b) or Section 3.23, continue to be
obligated for or entitled to receive all amounts accrued or owing by or to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). All costs and expenses of the Trustee and
the Trust (including, without limitation, any costs and expenses of any party
hereto reimbursable out of the Trust Fund) in connection with the termination of
the Master Servicer or Special Servicer, as applicable, under this Section
7.01(b) (including, without limitation, the requisite transfer of servicing)
shall be paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney in fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b) of this Agreement, if the Master
Servicer receives a notice of termination under Section 7.01(b) solely due to an
Event of Default under Section 7.01(a)(xii) or (xiii) and if the Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five Business Days after such termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three Persons
qualified to act as Master Servicer hereunder in accordance with Section 6.02
and Section 7.02 for which the Trustee has received written confirmation that
the appointment of such person would not result in the downgrade, withdrawal or
qualification of a current rating on any of the Certificates and that are
reasonably acceptable to the Directing Certificateholder (any such Person so
qualified, a "Qualified Bidder") or, if three Qualified Bidders cannot be
located, then from as many Persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the terminated Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three or no Qualified Bidders submit bids for the right to master service
the Mortgage Loans under this Agreement. Any "Qualified Bidder" referenced
hereunder shall be reasonably acceptable to the Directing Certificateholder. The
bid proposal shall require any Successful Bidder (as defined below), as a
condition of such bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof, within 45 days after the
termination of Master Servicer. The Trustee shall solicit bids (i) on the basis
of such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage 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 Mortgage Loans not subject to
a Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.5 basis points per Mortgage Loan serviced (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
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 by virtue of the
Trustee's negligence or fraud.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default hereunder that has not
been cured, to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys in fact, provided that the use of any such agent or attorney in fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney in fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Sellers.
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, or the
Special Servicer, 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 Mortgage 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 "A2" 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. 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 the Fiscal Agent 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 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 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.
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 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney in fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee that do not comply with
the provisions of Section 8.10(b).
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, either 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 Mortgage
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 Mortgage
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 2005 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 2004, the Trustee shall
prepare and properly file with the Commission on or before the due date
specified by the Commission, with respect to the Trust, an Annual Report on Form
10-K that complies in all material respects with the requirements of the
Exchange Act, the rules and regulations promulgated thereunder and applicable
"no-action letters" issued by the Commission, which shall include as exhibits
the Officer's Certificates and Annual 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 that 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.
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 for 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
"AA-" from S&P and "Aa3" from Xxxxx'x (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 face 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.
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 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 either Mortgage Loan Seller) the
Master Servicer, or the Special Servicer (in that order of priority) of all
Mortgage Loans and each REO Property remaining in REMIC I 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,
plus (B) the appraised value of each REO Property, if any, included in REMIC I
(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; 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) 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 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)
each may so elect to purchase all of the Mortgage Loans and each REO Property
remaining in 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 Initial Pool
Balance. In the event that the Master Servicer, the Special Servicer or any
Majority Certificateholder of the Class (other than the Depositor) elects to
purchase all of the Mortgage Loans and each REO Property remaining in 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). 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 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 REMIC
I.
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 all of the Mortgage Loans and each REO Property remaining in 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 REMIC I Regular Interests shall be made
on such date as provided in Section 4.01(a)(ii), Section 4.01(b), Section
4.01(c)(iv), Section 4.01(j) and Section 4.01(k).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-II
Certificateholders shall be entitled to all unclaimed funds and other assets
that remain subject thereto.
Section 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor) purchases
all of the Mortgage Loans and each REO Property remaining in REMIC I as provided
in Section 9.01, the Trust (and, accordingly, 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 REMIC I or REMIC II as defined in Section 860F of the Code or
cause 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 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 REMIC I 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 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 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 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 Class R-I Certificates are 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-5,
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) (in the case of the Class P Certificates exclusive of the portion
thereof representing a beneficial interest in the Excess Interest and the Excess
Interest Distribution Account), and the Class R-II Certificates are hereby
designated as the sole Class of "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC II. For the avoidance of doubt, the
Class XC and Class XP Certificates represent "specified portions," within the
meaning of Treasury Regulations Section 1.860G-1(a)(2), of the interest payments
on the REMIC I Regular Interests corresponding to their respective Components.
None of the REMIC Administrator, the Master Servicer, the Special Servicer or
the Trustee shall, to the extent it is within the control of such Person, create
or permit the creation of any other "interests" in REMIC I or REMIC II (within
the meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(ii) [Reserved].
(c) The Closing Date is hereby designated as the "startup day" of
each of the 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) is the
Rated Final Distribution Date and (ii) the Class XP Certificates, the
Distribution Date in April 2011.
(d) [Reserved].
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of 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 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 REMIC I or REMIC II, and otherwise act on behalf of each of
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 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 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 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 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
either of 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 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 REMIC I or REMIC II, or causing 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 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 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 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 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 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.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to 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 either Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed in lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account or the REO Account for gain; or (iii) the
acquisition of any assets for the Trust Fund (other than a Mortgaged Property
acquired through foreclosure, deed in lieu of foreclosure or otherwise in
respect of a Defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) 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 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 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 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 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 Internal Revenue
Service together with 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 P
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 Prepayment Date. Under no circumstances shall the Trustee, the
Master Servicer or the Special Servicer have the power to vary the investment of
the Class P 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, (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 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 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
either Mortgage Loan Seller without such Mortgage Loan Seller'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 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 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 REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II 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.
(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 shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder'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 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 from time to time as
partners or members of an association; nor shall any Certificateholder 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 shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder 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, XX0-000-000-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxx, 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, 000 X. Xxxxxx Xxxxxx, CA-9-706-06-42, 6th
Floor, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Servicing Manager,
telecopy number: (000) 000-0000, Reference: Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates Series 2004-2,
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: Asset Backed Securities Trust Services
Group--Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-2, 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: Asset Backed
Securities Trust Services Group, Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-2, 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,
Citigroup Alternative Investments, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Almond Xxxxxxxxx, telecopy number (212)
793-8148;
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. Except
as specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
Section 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor;
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Mortgage
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 or a Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificateholder (if requested by such Holder), by any of the Trustee, the
Master Servicer or the Special Servicer pursuant to this Section 11.09, shall be
so delivered or otherwise made available through an electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
Section 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O or Class P Certificate shall be entitled to,
upon request to the Master Servicer, receive a copy from the Master Servicer, of
any notice or report to be delivered hereunder to the Directing
Certificateholder.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency or any Holder of a Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O or Class P Certificate, is stated herein
to be entitled to obtain from the Master Servicer or the Special Servicer, upon
request, any particular report or other item of information obtained or prepared
with respect to the Mortgage 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/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 14th day of April 2004, 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 entities, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On April 7, 2004, before me, Wm. X. Xxxxxxxx, Notary Public,
personally appeared Xxxxx X. Xxxxxxx, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on
the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
Wintess my hand and offcial seal.
/s/ Wm. X. Xxxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
May 22, 0000
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 9th day of April 2004, 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 entities, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
April 11, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 14th day of April 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, known to me to be a Vice
President of LASALLE BANK NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entities, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
July 18, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 14th day of April 2004, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, Vice President and Xxxxxxx
Xxxx, Senior 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 entities, and acknowledged to me that
such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
Notary Public
[Notarial 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 2004-2
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
2.7640% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-1 Certificates as of the Issue
April 1, 2004 Date:
$76,756,000
Cut-off Date: Approximate Aggregate unpaid principal
April 1, 2004 balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such date
(the "Initial Pool Balance"):
$1,138,760,562
Issue Date:
April 13, 2004
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 2004-2
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
3.5200% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-2 Certificates as of the Issue
April 1, 2004 Date: $236,527,000
Cut-off Date: Approximate Aggregate unpaid principal
April 1, 2004 balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such date
(the "Initial Pool Balance"):
$1,138,760,562
Issue Date:
April 13, 2004
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 2004-2
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
4.0500% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3 Certificates as of the Issue
April 1, 2004 Date: $283,402,000
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 2004-2
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
4.1530 Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
April 1, 2004 Date: $125,682,000
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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-5 Certificate
CLASS A-5 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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
4.5800% per annum Certificate as of the Issue Date:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-5 Certificates as of the Issue
April 1, 2004 Date: $254,120,181
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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-6
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XC Certificates as of the Issue Date:
April 1, 2004 $1,138,760,562
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. XC-____ 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XP Certificates as of the Issue Date:
April 1, 2004 $1,104,576,380
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. XP-____ 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 ABM 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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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-8
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
April 1, 2004 Date: $27,045,564
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. 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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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-9
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
April 1, 2004 Date: $12,811,056
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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: 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 D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
April 1, 2004 Date: $24,198,662
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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-11
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
April 1, 2004 Date: $11,387,606
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. E-____ 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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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
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 F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
April 1, 2004 Date: $15,657,957
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. F-____ 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
April 1, 2004 Date: $9,964,155
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. G-____ 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
April 1, 2004 Date: $15,657,958
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. H-____ 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
April 1, 2004 Date: $4,270,352
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. 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 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
April 1, 2004 Date: $5,693,803
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. K-____ 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated: 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 L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
April 1, 2004 Date: $5,693,803
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. L-____ 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
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
April 1, 2004 Date: $7,117,253
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. 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 ABM 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
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
April 1, 2004 Date: $2,846,901
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. N-____ 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
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
April 1, 2004 Date: $2,846,901
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. O-____ 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
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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 IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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:
$______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
April 1, 2004 Date: $17,081,410
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Certificate No. P-____ 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
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) 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.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "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 (I) 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 AND (II)
AN UNDIVIDED INTEREST IN EXCESS INTEREST AND THE EXCESS INTEREST DISTRIBUTION
ACCOUNT.
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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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 Certificate No. R-I-____
Agreement:
April 1, 2004
Percentage Interest evidenced by this
Certificate in the related Class: 100%
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.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) 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.
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 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 [___________] 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, the Trustee and the 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
Disqualified Organization or a Non 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-2
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 Certificate No. R-II-____
Agreement:
April 1, 2004
Percentage Interest evidenced by this
Certificate in the related Class: 100%
Cut-off Date: April 1, 2004
Issue Date: April 13, 2004 Approximate Aggregate unpaid principal
balance of the Mortgage Pool as of the
Cut-off Date, after deducting payments
of principal due on or before such
date (the "Initial Pool Balance"):
$1,138,760,562
First Distribution Date:
May 10, 2004
Master Servicer:
Bank of America, N.A.
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.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) 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.
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 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 [____________] 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, the Trustee and the 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
Disqualified Organization or a Non 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, 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 either Mortgage Loan Seller), the Master
Servicer or the Special Servicer (in that order of priority) of all Mortgage
Loans and each REO Property remaining in REMIC I, 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. 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. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, 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 or REMIC II
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 Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- --------
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
__________ ________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2004-2
Banc of America 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 2004-2
------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of April 1, 2004 (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 2004-2 (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 to (i)
"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, pursuant to any other exemption from the registration requirements of the
1933 Act, 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. 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(s). 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(s) and states that such Purchaser is not
a U.S. Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with
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(s) and state that interest on the Certificate is, or is expected
to be, effectively connected with a U.S. trade or business. The Purchaser agrees
to provide to the Certificate Registrar updated IRS Forms [W-8BEN, W-8IMY or IRS
Forms W-8ECI, as the case may be]**, any applicable successor IRS forms, or such
other certificates 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. Person" means a citizen or resident of the
United States for U.S. 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 U.S. 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 were eligible to elect to be treated as U.S. persons).
8. Please make all payments due on the Certificates:***
|_| (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:
----------
* Each Purchaser must include one of the following two 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.
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 2004-2, 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: Asset Backed Securities Trust Services Group- BACM 2004-2
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-
Through Certificates, Series 2004-2, 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 April 1, 2004, 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: Asset Backed Securities Trust Services Group- BACM 2004-2
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 April 1, 2004 (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: Asset Backed Securities Trust Services Group- BACM 2004-2
Banc of America 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 2004-2
------------------------------------------------------------
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 2004-2, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of April 1, 2004 (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 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 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 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 Prohibited Transaction Class Exemption
95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) 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 "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Trustee, the Fiscal Agent, 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 Pooling and
Servicing Agreement, which Opinion of Counsel shall 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 X. Xxxxxxx
Re: Pooling and Servicing Agreement dated as of April 1, 2004 (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 2004-2
--------------------------------------------------
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, the
Fiscal Agent 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 Fiscal Agent, 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
[RESERVED]
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2004-2
Re: Pooling and Servicing Agreement dated as of April 1, 2004 (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 2004-2
-------------------------------------------------
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 2004-2
-----------------------------------
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 April 1, 2004, 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 April
1, 2004 (the "Pooling and Servicing Agreement"), among 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 2004-2
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 2004-2 (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 April 1, 2004 among Banc of America Commercial Mortgage
Inc., as Depositor, Bank of America, N.A., as Master Servicer, Midland Loan
Services, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee and REMIC Administrator, and ABN AMRO Bank N.V., as Fiscal Agent;
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.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2004-2 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2004-2
------------------------------------------------------------
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 April 1, 2004, among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee and REMIC Administrator, and ABN AMRO Bank
N.V., as Fiscal Agent, 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]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Originator Property Name
----------------------------------------------------------------------------------------------------------
1 57797 Bank of America Xxxxxxxx Xxxxxxxxxx
0 0000 Xxxxxxx Xxxxx Homes of Xxx Xxxxx
0 00000 Xxxx xx Xxxxxxx Xxxxxxxx Xxxxxxxxxx
0 0000 Xxxxxxx Xxxxxx Xxx Apartments
5 39285 BSCMI 0000 Xxxxxx Xxxxxx
6 39287 BSCMI 000 Xxxxx Xxxx Xxxxx
Sub-Total Crossed Loans
7 39677 BSCMI 2300 Grand Concourse
8 39284 BSCMI 000 Xxxxxx Xxxxxx
9 0000 Xxxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxxxx
00 00000 BSCMI 000 Xxxx 000xx Xxxxxx
00 00000 XXXXX 000 Xxxx 000xx Xxxxxx
00 00000 XXXXX 000 Xxxxxxx Xxxxxx
13 8165 Bridger Orchard on the Green Apartments
14 39670 BSCMI 0000 Xxxxxxx Xxxxxx
15 39674 BSCMI 0000 Xxxxxxxxxx Xxxxxx
16 39673 BSCMI 0000 Xxxxxxxxxxxx Xxxxxx
Sub-Total Crossed Loans
17 39669 BSCMI 0000 Xxxxxxx Xxxxxx
18 39279 BSCMI 0000 Xxxxxxxxxxx Xxxxxxx
19 39676 BSCMI 0000 Xxxxxxx Xxxxxx
20 39282 BSCMI 0000-0000 Xxxxxx Xxxxxx
21 57563 Bank of America Xxxxxxxxx Xxxxx Xxxxxxxxxx
00 00000 XXXXX Xxxx Prairie Mall
23 57995 Xxxx xx Xxxxxxx Xxxxxx Xxxxx Xxxxx
00 00000 Bank of America Springfield Plaza Shopping Center
25 38460 BSCMI Xxxxxx Xxxxx
00.0 00000 XXXXX Xxxxx at Park Place
26.2 38898 BSCMI Xxxx'x New Xxxxxxx
00 00000 XXXXX Xxxxxx TX-CT Retail Portfolio (Roll Up)
27.1 39083 BSCMI Xxxxx Plains Village
27.2 39083 BSCMI Clearwater Crossing
27.3 39083 BSCMI Goody's Family Clothing
27 39083 BSCMI Inland Georgia Retail Portfolio (Roll XX)
00 00000 XXXXX Xxxxx Xxxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Xxxx Xxxxxx Xxxxx
00.0 00000 Xxxx xx Xxxxxxx 000 Xxxxxxxxxx Xxxxxx
30.2 57748 Bank of America 00-00 XxXxxxx Xxxx
30.3 57748 Bank of America 0000 Xxx Xxxxxxx Xxxxxx
30.4 57748 Bank of America 000 Xxxxxxxxxx Xxxxxx
30 57748 Bank of America West Hartford Portfolio (Roll Up)
31.1 57720 Bank of America Colony Mill Marketplace
31.2 57720 Bank of America Center at Keene
31 57720 Bank of America Colony Mill Marketplace and Center at Keene (Roll Up)
32 57380 Bank of America Xxxxxxx City Commons
33 57765 Bank of America Bouquet Canyon Plaza
34 39207 BSCMI Xxxxxxx Xxxxxxx Xxxxxx
00 00000 XXXXX Xxxxxxxxx Market Center
36 39564 BSCMI Xxxxxxxxxx Xxxxx
00 00000 Xxxx xx Xxxxxxx Timpany Plaza
38 39179 BSCMI Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 XXXXX Xxxxxxx Xxxx Center
40 39328 BSCMI Manchester Stop & Shop
41 57768 Bank of America Xxxxx & Madison Market Place
42 57607 Bank of America Alton Corners Shopping Center
43 57707 Bank of America Bellevue Place Shopping Center
44 57706 Bank of America Spring Mall Shopping Center
45 39568 BSCMI Xxxxxxxxx Xxxxx
00 00000 XXXXX Xxxxxxxx Corners
47 38608 BSCMI 0000 Xxxxx Xxxxx 0
48 57742 Bank of America Woodford Square Shopping Center
49 39439 BSCMI Xxxxxxxxxx Xxxxx
00 0000 Xxxxxxx Xxxxxxxxx - Xxxxxxxx
51 57774 Bank of America Citrus Park Shops
52 57749 Bank of America Walgreens - Bluffton, IN
53 39566 BSCMI Houston Square
54 38549 BSCMI Eckerd Piedmont
55 57698 Bank of America XXX Xxxxx
00 00000 XXXXX Xxxxxxx Financial Center
57 57770 Bank of America 000 Xxxx 00xx Xxxxxx
58.1 39550 BSCMI 0000 Xxxx Xxxxx Xxxx
00.0 00000 XXXXX 00000 International Drive
58 39550 BSCMI Evergreen Portfolio C (Roll Up)
59 57580 Bank of America 0000 Xxxxxxxx
60 57718 Bank of America Paradise Valley Corporate Center
61 57526 Bank of America The Forbes Building
62 57469 Bank of America Xxxxxxx Xxxxxx Xxxxxxxx
00 0000 Xxxxxxx Xxxxxxxxxx XX Office Portfolio (Franklin Bldg.)
64 0000 Xxxxxxx Xxxxxxxxxx XX Office Portfolio (Xxxxx Bldg.)
Sub-Total Crossed Loans
65 57945 Bank of America Lakeside III
66 57777 Bank of America Xxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx DeVry Institute
68 57767 Bank of America Galleria at Red Bank
69 57909 Bank of America 4040 North Central Expressway
70 57691 Bank of America Xxxxxxx Xxx Xxxxxxxx XX
00 00000 Bank of America River Park One
72 57573 Bank of America Cross Street Medical Building
73 55600 Bank of America Xxxxxx Xxxxxx Xxxxxxxx - Xxxxxxxxx, XX
74.1 00000 Xxxx xx Xxxxxxx Xxxxxxx Xxxxx
00.0 00000 Xxxx xx Xxxxxxx Xxxx & Country
74.3 57524 Bank of America The Plaza
74 57524 Bank of America Xxxxxxx/Xxxxxx Office Portfolio (Roll Up)
75 56659 Bank of America Atrium Memorial Professional Building
76 57421 Bank of America Xxxxx Xxxxx
00 0000 Xxxxxxx Xxxxxx Xxxxx Office Building
78 57427 Bank of America Southport Business Park
79 00000 Xxxx xx Xxxxxxx XXX Xxxxxxxxx - Xxxxxxxxx Xxxxxxx
80 57678 Bank of America MHC Portfolio - Lake Fairways Country Club
81 57663 Bank of America MHC Portfolio - The Xxxxxxx at Countrywood
82 57662 Bank of America MHC Portfolio - The Lakes at Countrywood
Sub-Total Crossed Loans
83 6468 Bridger Holiday Ranch MHC-Happy Landings MHC
84 57659 Bank of America MHC Portfolio - Sweetbriar
85 57687 Bank of America The Store Room
86 57551 Bank of America Best Florida Mini Storage
87 57689 Bank of America A-1 Paramount Self Storage
88 57740 Bank of America Storgard Self Storage and RV
89 0000 Xxxxxxx Xxxxxx XX - Xxxxxxxxxxxx, XX
90 57688 Bank of America X-0 Xx Xxxxx Self Storage
91 57717 Bank of America Access Self Storage
92 8306 Bridger Leave it/Lock it Self Storage
93 8309 Bridger Allsafe Freeway Storage
94 7580 Xxxxxxx Xxxxxxx Self Storage
95 7847 Xxxxxxx Xxxxxxx Inn - Southwind II
Table Continued
Sequence Mortgage Amortization
Number Street Address City State Zip Code Rate (%) Basis
------------------------------------------------------------------------------------------------------------------------------------
1 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 4.840% ACT/360
2 0000 XX 00xx Xxxxxx Xxxxxx Xxxx XX 00000 5.398% ACT/360
3 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 5.131% ACT/360
4 939 and 000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 5.794% ACT/360
5 0000 Xxxxxx Xxxxxx Xxxxx XX 00000 5.101% ACT/360
6 000 Xxxxx Xxxx Xxxxx Xxxxx XX 00000 5.101% ACT/360
7 0000 Xxxxx Xxxxxxxxx Xxxxx XX 00000 4.908% ACT/360
8 000 Xxxxxx Xxxxxx Xxxxx XX 00000 4.851% ACT/360
9 000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxx Xx Xxx XX 00000 5.729% ACT/360
10 000 Xxxx 000xx Xxxxxx Xxxxx XX 00000 4.851% ACT/360
11 000 Xxxx 000xx Xxxxxx Xxxxx XX 00000 4.851% ACT/360
12 000 Xxxxxxx Xxxxxx Xxxxx XX 00000 5.101% ACT/360
13 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000 5.146% ACT/360
14 0000 Xxxxxxx Xxxxxx Xxxxx XX 00000 4.850% ACT/360
15 0000 Xxxxxxxxxx Xxxxxx Xxxxx XX 00000 4.850% ACT/360
16 0000 Xxxxxxxxxxxx Xxxxxx Xxxxx XX 00000 4.850% ACT/360
17 0000 Xxxxxxx Xxxxxx Xxxxx XX 00000 4.908% ACT/360
18 0000 Xxxxxxxxxx Xxxxxxx Xxxxx XX 00000 4.863% ACT/360
19 0000 Xxxxxxx Xxxxxx Xxxxx XX 00000 4.850% ACT/360
20 0000-0000 Xxxxxx Xxxxxx Xxxxx XX 00000 4.863% ACT/360
21 0 Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 5.410% ACT/360
22 000 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 4.670% ACT/360
23 000 Xxxx Xxxxxxxx Xxxxxx Xxxx XX 00000 3.452% ACT/360
24 0000-0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 5.912% ACT/360
25 0000 Xxxx Xxxxx Xxxx Xxxxxx XX 00000 5.125% ACT/360
26.1 0000 Xxxx Xxxxx Xxxxxxx Xxxxx XX 00000
26.2 0000 Xxxx Xxxx Xxxxxx Xxx Xxxxxxx XX 00000
26 Various Various Various Various 4.684% 30/360
27.1 0000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000
27.2 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
27.3 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
27 Various Various GA Various 5.000% 30/360
28 000 Xxxxx Xxxxxx Xxxxx Xxxxx XX 00000 4.900% 30/360
29 0000-0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 5.770% ACT/360
30.1 000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
30.2 00-00 XxXxxxx Xxxx Xxxx Xxxxxxxx XX 00000
30.3 0000 Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
30.4 000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
00 Xxxxxxx Xxxx Xxxxxxxx XX 00000 5.670% ACT/360
31.1 000 Xxxx Xxxxxx Xxxxx XX 00000
31.2 000 Xxxxxxx Xxxxxx Xxxxx XX 00000
31 Xxxxxxx Xxxxx XX 00000 6.070% ACT/360
32 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000 6.010% ACT/360
33 00000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 5.760% ACT/360
34 00000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000 4.940% 30/360
35 000 Xxxxx Xxxx 00xx Xxxxxx Xxxxxxxxx XX 00000 4.757% 30/360
36 0000 Xxxxx 00 Xxxxxxxxx XX 00000 4.581% 30/360
37 000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 6.083% ACT/360
38 000 Xxxxxxx Xx Xxxx 00 Xxxxxxxx XX 00000 4.940% 30/360
39 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000 4.600% 30/360
40 000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 4.755% 30/360
41 5410 & 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 5.410% ACT/360
42 000-000 Xxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 6.065% ACT/360
43 0000 Xxxxxxx 00 Xxxxx Xxxxxxxx XX 00000 5.130% 30/360
44 0000 Xxxxxx Xxxx Xxxxx Xxxxxxxxxxx XX 00000 4.660% 30/360
45 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 4.960% 30/360
46 8610 - 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.040% 30/360
47 0000 Xxxxx Xxxxx 0 Xxxx Xxxxxx XX 00000 5.190% ACT/360
48 000 Xxxxx Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 5.300% ACT/360
49 1715 - 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 4.910% 30/360
50 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 5.958% ACT/360
51 0000-0000 Xxxx Xxxxxxx Xxxxx XX 00000 5.960% ACT/360
52 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 6.000% ACT/360
53 000 Xxxxxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000 4.740% 30/360
54 000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 5.170% 30/360
00 Xxx-Xxx XXX Xxxxx Xxxxxxxxxx XX 00000 5.343% ACT/360
56 000 Xxxx Xxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 4.836% ACT/360
57 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 5.684% ACT/360
58.1 0000 Xxxx Xxxxx Xxxx Xxxxxx XX 00000
58.2 00000 Xxxxxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
58 Various Various CA Various 5.570% ACT/360
59 0000 Xxxxxxxx Xxx Xxxx XX 00000 5.830% ACT/360
60 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 5.790% ACT/360
61 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000 5.883% ACT/360
62 00000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 5.470% ACT/360
63 00 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 5.879% ACT/360
64 00 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 5.879% ACT/360
65 00000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 5.730% ACT/360
66 1450, 1465 & 0000 Xxxx Xxxxxx and 0000 Xxxx Xxxxx Xxxxxxx XX 00000 5.750% ACT/360
67 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 5.280% ACT/360
68 0-00 Xxxxxx Xxx. Xxx Xxxx XX 00000 5.360% ACT/360
69 0000 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 5.773% ACT/360
70 0000 Xxxxx 000xx Xxx Xxxxxxx Xxx XX 00000 5.446% ACT/360
71 00000 Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 5.770% ACT/360
72 00 Xxxxx Xxxxxx Xxxxxxx XX 00000 5.670% ACT/360
73 0000 Xxxxx Xxxxxxx 000 Xxxxxxxxx XX 00000 6.090% ACT/360
74.1 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74.2 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74.3 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74 7745, 7751 and 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 5.390% ACT/360
75 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 6.000% ACT/360
76 00-00 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.700% ACT/360
77 000 Xxxxx 00 Xxxxx Xxxxxxxxxx XX 00000 5.659% ACT/360
78 2928, 2934 and 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.875% ACT/360
79 000 Xxxx Xxxxx Xxxx XX 00000 6.327% ACT/360
80 00000 Xxxxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000 6.327% ACT/360
81 000 Xxxx Xxx Xxxxx Xxxx Xxxxx Xxxx XX 00000 5.715% ACT/360
82 000 Xxxx Xxx Xxxxx Xxxx Xxxxx Xxxx XX 00000 5.715% ACT/360
83 0000 Xxxxx Xxxxxxxx Xxxxx Xxxx Xxxx Xxxxx XX 00000 6.129% ACT/360
00 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxx 000 Xxxxx XX 00000 6.327% ACT/360
85 000 XX Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.980% ACT/360
86 0000 XX 00xx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 6.010% ACT/360
87 00000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.777% ACT/360
88 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 5.390% ACT/360
89 000 Xxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000 5.582% ACT/360
90 000 Xxxx Xxxxxxx Xxxx Xx Xxxxx XX 00000 5.930% ACT/360
91 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 6.050% ACT/360
92 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 5.704% ACT/360
93 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.698% ACT/360
94 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 6.050% ACT/360
95 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000 6.836% ACT/360
Table Continued
Remaining
Term To
Stated Stated Primary Master
Sequence Original Cut-off Maturity Maturity Due Monthly Administrative Servicing Servicing
Number Balance Balance (months) Date Date Payment Fee Rate Fee Rate Fee Rate
------------------------------------------------------------------------------------------------------------------------------------
1 $20,000,000 $19,977,938 59 3/1/2009 1st $105,417 0.122% 0.100% 0.120%
2 19,910,023 19,910,023 116 12/1/2013 1st 112,281 0.052% 0.030% 0.050%
3 12,400,000 12,400,000 83 3/1/2011 1st 67,562 0.122% 0.100% 0.120%
4 9,760,000 9,731,114 117 1/1/2014 1st 57,230 0.052% 0.030% 0.050%
5 3,617,000 3,604,663 57 1/1/2009 1st 19,641 0.032% 0.010% 0.030%
6 2,465,000 2,456,592 57 1/1/2009 1st 13,385 0.032% 0.010% 0.030%
6,082,000 6,061,256
7 4,210,000 4,205,429 59 3/1/2009 1st 22,364 0.032% 0.010% 0.030%
8 4,112,000 4,101,820 58 2/1/2009 1st 21,701 0.032% 0.010% 0.030%
9 4,050,000 4,037,850 117 1/1/2014 1st 23,581 0.112% 0.090% 0.110%
10 3,981,000 3,971,144 58 2/1/2009 1st 21,010 0.032% 0.010% 0.030%
11 3,692,000 3,682,859 58 2/1/2009 1st 19,485 0.032% 0.010% 0.030%
12 3,654,000 3,641,537 57 1/1/2009 1st 19,842 0.032% 0.010% 0.030%
13 3,600,000 3,560,428 177 1/1/2019 1st 28,743 0.052% 0.030% 0.050%
14 3,347,000 3,343,317 59 3/1/2009 1st 17,662 0.032% 0.010% 0.030%
15 1,969,000 1,966,833 59 3/1/2009 1st 10,390 0.032% 0.010% 0.030%
16 1,150,000 1,148,734 59 3/1/2009 1st 6,068 0.032% 0.010% 0.030%
3,119,000 3,115,567
17 2,936,000 2,932,812 59 3/1/2009 1st 15,596 0.032% 0.010% 0.030%
18 2,914,000 2,910,803 59 3/1/2009 1st 15,400 0.032% 0.010% 0.030%
19 2,230,000 2,227,546 59 3/1/2009 1st 11,768 0.032% 0.010% 0.030%
20 1,989,000 1,986,818 59 3/1/2009 1st 10,511 0.032% 0.010% 0.030%
21 1,675,000 1,667,998 116 12/1/2013 1st 9,416 0.122% 0.100% 0.120%
22 87,000,000 87,000,000 84 4/1/2011 1st 449,647 0.032% 0.010% 0.030%
23 42,000,000 42,000,000 60 4/1/2009 1st 187,475 0.062% 0.040% 0.060%
24 26,000,000 25,924,931 117 1/1/2014 1st 154,415 0.122% 0.100% 0.120%
25 25,250,000 25,164,292 57 1/1/2009 1st 137,483 0.072% 0.050% 0.070%
26.1 13,127,000 13,127,000
26.2 6,450,000 6,450,000
26 19,577,000 19,577,000 55 11/1/2008 1st 76,416 0.032% 0.010% 0.030%
27.1 9,900,000 9,900,000
27.2 7,800,000 7,800,000
27.3 1,185,000 1,185,000
27 18,885,000 18,885,000 80 12/1/2010 1st 78,688 0.032% 0.010% 0.030%
28 17,200,000 17,200,000 80 12/1/2010 1st 70,233 0.032% 0.010% 0.030%
29 16,000,000 15,884,422 115 11/1/2013 1st 100,850 0.122% 0.100% 0.120%
30.1 5,538,462 5,538,462
30.2 2,846,154 2,846,154
30.3 2,846,154 2,846,154
30.4 1,769,231 1,769,231
30 13,000,000 13,000,000 57 1/1/2009 1st 78,877 0.122% 0.100% 0.120%
31.1 7,077,778 7,052,166
31.2 5,522,222 5,502,240
31 12,600,000 12,554,406 116 12/1/2013 1st 76,111 0.122% 0.100% 0.120%
32 12,000,000 11,976,081 118 2/1/2014 1st 72,023 0.122% 0.100% 0.120%
33 12,000,000 11,964,232 117 1/1/2014 1st 70,105 0.122% 0.100% 0.120%
34 11,457,000 11,457,000 80 12/1/2010 1st 47,165 0.032% 0.010% 0.030%
35 10,355,000 10,355,000 82 2/1/2011 1st 41,049 0.032% 0.010% 0.030%
36 9,900,000 9,900,000 58 2/1/2009 1st 37,793 0.032% 0.010% 0.030%
37 8,900,000 8,875,216 117 1/1/2014 1st 53,836 0.122% 0.100% 0.120%
38 8,600,000 8,600,000 80 12/1/2010 1st 35,403 0.032% 0.010% 0.030%
39 7,250,000 7,250,000 80 12/1/2010 1st 27,792 0.032% 0.010% 0.030%
40 7,205,000 7,205,000 56 12/1/2008 1st 28,550 0.032% 0.010% 0.030%
41 7,000,000 6,993,259 119 3/1/2014 1st 39,351 0.122% 0.100% 0.120%
42 6,200,000 6,177,540 116 12/1/2013 1st 37,432 0.122% 0.100% 0.120%
43 5,985,000 5,985,000 116 12/1/2013 1st 0 0.122% 0.100% 0.120%
44 5,765,000 5,765,000 80 12/1/2010 1st 0 0.122% 0.100% 0.120%
45 5,300,000 5,300,000 81 1/1/2011 1st 21,907 0.032% 0.010% 0.030%
46 5,150,000 5,150,000 80 12/1/2010 1st 21,630 0.032% 0.010% 0.030%
47 4,000,000 3,980,908 57 1/1/2009 1st 23,829 0.032% 0.010% 0.030%
48 3,920,000 3,916,123 119 3/1/2014 1st 21,768 0.122% 0.100% 0.120%
49 3,750,000 3,750,000 81 1/1/2011 1st 15,344 0.032% 0.010% 0.030%
50 3,363,000 3,353,384 117 1/1/2014 1st 20,072 0.052% 0.030% 0.050%
51 3,000,000 2,993,963 118 2/1/2014 1st 17,909 0.122% 0.100% 0.120%
52 2,800,000 2,797,679 119 3/1/2014 1st 16,787 0.122% 0.100% 0.120%
53 2,750,000 2,750,000 57 1/1/2009 1st 10,863 0.032% 0.010% 0.030%
54 1,100,000 1,100,000 78 10/1/2010 1st 4,739 0.032% 0.010% 0.030%
55 116,000,000 115,704,055 81 1/1/2011 1st 624,479 0.042% 0.020% 0.040%
56 46,500,000 46,500,000 59 3/1/2009 10th 190,518 0.032% 0.010% 0.030%
57 36,500,000 36,467,173 119 3/1/2014 1st 211,472 0.122% 0.100% 0.120%
58.1 21,400,000 21,290,008
58.2 11,200,000 11,142,434
58 32,600,000 32,432,442 79 11/1/2010 1st 186,534 0.032% 0.010% 0.030%
59 28,000,000 27,917,752 117 1/1/2014 1st 164,826 0.122% 0.100% 0.120%
60 24,750,000 24,654,705 80 12/1/2010 1st 145,064 0.122% 0.100% 0.120%
61 21,000,000 21,000,000 114 10/1/2013 1st 127,624 0.122% 0.100% 0.120%
62 18,000,000 18,000,000 53 9/1/2008 1st 0 0.122% 0.100% 0.120%
63 9,200,000 9,140,613 112 8/1/2013 1st 65,271 0.052% 0.030% 0.050%
64 6,100,000 6,060,624 112 8/1/2013 1st 43,278 0.052% 0.030% 0.050%
15,300,000 15,201,236
65 15,120,000 15,106,560 119 3/1/2014 1st 88,044 0.122% 0.100% 0.120%
66 12,900,000 12,872,986 118 2/1/2014 1st 75,281 0.122% 0.100% 0.120%
67 11,450,000 11,362,451 137 9/1/2015 1st 63,440 0.122% 0.100% 0.120%
68 10,500,000 10,476,341 118 2/1/2014 1st 58,699 0.072% 0.050% 0.070%
69 10,000,000 9,979,150 118 2/1/2014 1st 58,503 0.122% 0.100% 0.120%
70 9,900,000 9,900,000 115 11/1/2013 1st 55,876 0.122% 0.100% 0.120%
71 8,500,000 8,467,129 116 12/1/2013 1st 49,712 0.122% 0.100% 0.120%
72 8,000,000 7,975,704 117 1/1/2014 1st 46,280 0.122% 0.100% 0.120%
73 6,800,000 6,781,092 144 4/1/2016 1st 41,164 0.122% 0.100% 0.120%
74.1 3,672,924 3,653,325
74.2 1,047,308 1,041,720
74.3 779,768 775,607
74 5,500,000 5,470,652 55 11/1/2008 1st 30,850 0.122% 0.100% 0.120%
75 5,250,000 5,220,907 114 10/1/2013 1st 31,476 0.122% 0.100% 0.120%
76 3,840,000 3,820,795 115 11/1/2013 1st 22,287 0.122% 0.100% 0.120%
77 1,500,000 1,490,049 117 1/1/2014 1st 10,453 0.052% 0.030% 0.050%
78 7,350,000 7,328,613 117 1/1/2014 1st 43,478 0.122% 0.100% 0.120%
79 30,953,930 30,953,930 139 11/1/2015 1st 192,142 0.122% 0.100% 0.120%
80 30,460,183 30,460,183 139 11/1/2015 1st 189,077 0.122% 0.100% 0.120%
81 18,292,718 18,292,718 79 11/1/2010 1st 106,345 0.122% 0.100% 0.120%
82 9,722,325 9,722,325 79 11/1/2010 1st 56,521 0.122% 0.100% 0.120%
28,015,043 28,015,043
83 8,951,936 8,951,936 114 10/1/2013 1st 54,747 0.062% 0.040% 0.060%
84 3,040,000 3,040,000 139 11/1/2015 1st 18,870 0.122% 0.100% 0.120%
85 7,250,000 7,215,840 115 11/1/2013 1st 43,374 0.122% 0.100% 0.120%
86 5,512,000 5,491,785 116 12/1/2013 1st 33,083 0.122% 0.100% 0.120%
87 4,840,000 4,812,445 116 12/1/2013 1st 30,526 0.122% 0.100% 0.120%
88 4,500,000 4,479,200 57 1/1/2009 1st 27,339 0.082% 0.060% 0.080%
89 4,200,000 4,196,125 119 3/1/2014 1st 24,064 0.102% 0.080% 0.100%
90 3,825,000 3,803,788 116 12/1/2013 1st 24,481 0.122% 0.100% 0.120%
91 3,100,000 3,091,307 117 1/1/2014 1st 18,686 0.122% 0.100% 0.120%
92 2,200,000 2,197,027 119 3/1/2014 1st 13,779 0.072% 0.050% 0.070%
93 1,900,000 1,897,429 119 3/1/2014 1st 11,893 0.072% 0.050% 0.070%
94 1,800,000 1,794,830 118 2/1/2014 1st 11,653 0.072% 0.050% 0.070%
95 6,000,000 5,978,211 117 1/1/2014 1st 41,781 0.082% 0.060% 0.080%
==============
Total $1,138,760,562
Table Continued
Original
Sequence Ownership Amortization
Number Interest Crossed (months) ARD Loan Grace Period
--------------------------------------------------------------------------------
1 Fee Simple No 360 No 10
2 Fee Simple No 356 Xx 0
0 Xxx Xxxxxx Xx 000 Xx 10
4 Fee Simple No 360 No 5
5 Fee Simple Yes(BACM 04-2-C) 360 No 5
6 Fee Simple Yes(BACM 04-2-C) 360 Xx 0
0 Xxx Xxxxxx Xx 000 Xx 5
8 Fee Simple No 360 Xx 0
0 Xxx Xxxxxx Xx 000 Xx 5
10 Fee Simple No 360 No 5
11 Fee Simple No 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
13 Fee Simple No 180 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
15 Fee Simple Yes(BACM 04-2-D) 360 No 5
16 Fee Simple Yes(BACM 04-2-D) 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
18 Fee Simple No 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
20 Fee Simple No 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
22 Fee Simple Xx 000 Xx 0
00 Xxxxxxxxx Xx 000 Xx 10
24 Fee Simple No 360 No 10
25 Fee Simple No 360 No 5
26.1 Fee Simple No
26.2 Fee Simple No
26 Fee Simple No 0 Yes 5
27.1 Fee Simple No
27.2 Fee Simple No
27.3 Fee Simple No
27 Fee Simple No 0 No 5
28 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
30.1 Fee Simple No
30.2 Fee Simple No
30.3 Fee Simple No
30.4 Fee Simple No
30 Fee Simple No 320 No 10
31.1 Fee Simple No
31.2 Fee Simple No
31 Fee Simple No 360 No 10
32 Fee Simple No 360 No 10
33 Fee Simple No 360 No 10
34 Fee Simple No 0 No 5
35 Leasehold No 0 No 5
36 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
38 Fee Simple No 0 No 5
39 Fee Simple No 0 No 5
40 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
42 Fee Simple No 360 No 10
43 Fee Simple No 0 No 10
44 Fee Simple No 0 No 10
45 Fee Simple No 0 No 5
46 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
48 Fee Simple No 360 No 10
49 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
51 Fee Simple No 360 No 10
52 Fee Simple No 360 No 10
53 Fee Simple No 0 No 5
54 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 0
56 Fee Simple No 0 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
58.1 Fee Simple No
58.2 Fee Simple No
58 Fee Simple No 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
60 Fee Simple No 360 No 10
61 Fee Simple No 336 No 10
62 Fee Simple No 0 No 10
63 Fee Simple Yes(BACM 04-2-B) 240 No 5
64 Fee Simple Yes(BACM 04-2-B) 240 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
66 Fee Simple No 360 No 10
67 Fee Simple No 360 No 10
68 Leasehold No 360 No 10
69 Fee Simple No 360 No 10
70 Fee Simple No 360 No 10
71 Fee Simple No 360 No 10
72 Fee Simple No 360 No 10
73 Fee Simple No 360 No 10
74.1 Fee Simple No
74.2 Fee Simple No
74.3 Fee Simple No
74 Fee Simple No 360 No 10
75 Fee Simple No 360 No 10
76 Fee Simple No 360 No 10
77 Fee Simple No 240 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
79 Fee Simple No 360 No 10
80 Fee Simple No 360 No 10
81 Fee Simple Yes(BACM 04-2-A) 360 No 10
82 Fee Simple Yes(BACM 04-2-A) 360 No 10
83 Fee Simple No 354 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
85 Fee Simple No 360 No 10
86 Fee Simple No 360 No 10
87 Fee Simple No 300 No 10
88 Fee Simple No 300 No 10
89 Fee Simple No 360 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 10
91 Fee Simple No 360 No 10
92 Fee Simple No 300 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
94 Fee Simple No 300 Xx 0
00 Xxx Xxxxxx Xx 000 Xx 5
SCHEDULE II
SUB-SERVICING AGREEMENTS
1. Sub-Servicing Agreement, dated as of April 1,2004, by and
between BANK OF AMERICA, N.A., as Master Servicer, LAUREATE CAPITAL LLC, X.X.
XXXXXX & COMPANY OF TEXAS, LP, COLLATERAL MORTGAGE CAPITAL, LLC, NORTHMARQ
CAPITAL, INC. and FINANCIAL FEDERAL SAVINGS BANK, each as Sub-Servicers.
2. Sub-Servicing Agreement, dated as of April 1, 2004, by and
between BANK OF AMERICA, N.A., as Master Servicer, and MIDLAND LOAN SERVICES,
INC., as Sub-Servicer.
3. Sub-Servicing Agreement, dated as of April 1, 2004, by and
between BANK OF AMERICA, N.A., as Master Servicer, and GMAC COMMERCIAL MORTGAGE
CORPORATION, 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 5/10/2004 5.24630% 43 11/10/2007 5.40200%
2 6/10/2004 5.40250% 44 12/10/2007 5.24650%
3 7/10/2004 5.24630% 45 1/10/2008 5.40180%
4 8/10/2004 5.40250% 46 2/10/2008 5.24650%
5 9/10/2004 5.40250% 47 3/10/2008 5.24660%
6 10/10/2004 5.24650% 48 4/10/2008 5.40160%
7 11/10/2004 5.40260% 49 5/10/2008 5.24510%
8 12/10/2004 5.24650% 50 6/10/2008 5.39990%
9 1/10/2005 5.24660% 51 7/10/2008 5.24500%
10 2/10/2005 5.24660% 52 8/10/2008 5.39980%
11 3/10/2005 5.24700% 53 9/10/2008 5.39970%
12 4/10/2005 5.40260% 54 10/10/2008 5.24490%
13 5/10/2005 5.24670% 55 11/10/2008 5.39950%
14 6/10/2005 5.40270% 56 12/10/2008 5.25660%
15 7/10/2005 5.24670% 57 1/10/2009 5.26050%
16 8/10/2005 5.40270% 58 2/10/2009 5.26710%
17 9/10/2005 5.40270% 59 3/10/2009 5.29410%
18 10/10/2005 5.24680% 60 4/10/2009 5.49030%
19 11/10/2005 5.40270% 61 5/10/2009 5.42060%
20 12/10/2005 5.24680% 62 6/10/2009 5.58240%
21 1/10/2006 5.24680% 63 7/10/2009 5.42050%
22 2/10/2006 5.24690% 64 8/10/2009 5.58220%
23 3/10/2006 5.24730% 65 9/10/2009 5.58210%
24 4/10/2006 5.40270% 66 10/10/2009 5.42020%
25 5/10/2006 5.24690% 67 11/10/2009 5.58190%
26 6/10/2006 5.40270% 68 12/10/2009 5.42010%
27 7/10/2006 5.24690% 69 1/10/2010 5.42000%
28 8/10/2006 5.40270% 70 2/10/2010 5.41990%
29 9/10/2006 5.40270% 71 3/10/2010 5.42060%
30 10/10/2006 5.24700% 72 4/10/2010 5.58130%
31 11/10/2006 5.40260% 73 5/10/2010 5.41960%
32 12/10/2006 5.24700% 74 6/10/2010 5.58110%
33 1/10/2007 5.24690% 75 7/10/2010 5.41950%
34 2/10/2007 5.24690% 76 8/10/2010 5.58080%
35 3/10/2007 5.24740% 77 9/10/2010 5.58070%
36 4/10/2007 5.40240% 78 10/10/2010 5.41920%
37 5/10/2007 5.24680% 79 11/10/2010 5.58110%
38 6/10/2007 5.40230% 80 12/10/2010 5.41110%
39 7/10/2007 5.24670% 81 1/10/2011 5.46970%
40 8/10/2007 5.40210% 82 2/10/2011 5.51910%
41 9/10/2007 5.40210% 83 3/10/2011 5.57210%
42 10/10/2007 5.24660% 84 4/10/2011 5.73190%
SCHEDULE V
MORTGAGE LOANS THAT INITIALLY PAY INTEREST ONLY
Sequence Loan Number Property Name Loan Type
3 57799 Overlook Apartments IO, Xxxxxxx
00 00000 Xxxxxx TX-CT Retail Portfolio (Roll Up) IO, Hyper Xx
00 00000 Xxxxxx Georgia Retail Portfolio (Roll UP) Interest Only
28 39444 Largo Towne Center Interest Only
30 57748 West Hartford Portfolio (Roll Up) IO, Balloon
34 39207 Denbigh Village Center Interest Only
35 39085 Hillsboro Market Center Interest Only
36 00000 Xxxxxxxxxx Xxxxx Interest Only
38 39179 Xxxxxxxx Central Shopping Center Interest Only
39 39086 Xxxxxxx Hill Center Interest Only
40 39328 Manchester Stop & Shop Interest Only
43 57707 Bellevue Place Shopping Center Interest Only
44 57706 Spring Mall Shopping Center Interest Only
45 00000 Xxxxxxxxx Xxxxx Interest Only
46 39219 Xxxxxxxx Corners Interest Only
49 00000 Xxxxxxxxxx Xxxxx Interest Only
53 00000 Xxxxxxx Xxxxxx Interest Only
54 38549 Eckerd Piedmont Interest Only
56 39463 Broward Financial Center Interest Only
61 57526 The Forbes Building IO, Balloon
62 57469 Cargill Office Building Interest Only
70 57691 Federal Way Building II IO, Balloon
79 57660 MHC Portfolio - Waterford Estates IO, Balloon
80 57678 MHC Portfolio - Lake Fairways Country Club IO, Balloon
81 57663 MHC Portfolio - The Xxxxxxx at Countrywood IO, Balloon
82 57662 MHC Portfolio - The Lakes at Countrywood IO, Balloon
84 57659 MHC Portfolio - Sweetbriar IO, Balloon
SCHEDULE VI
MORTGAGE LOANS CONTAINING ADDITIONAL DEBT
Existing
Existing Additional Debt
LoanNumber PropertyName Additional Debt Amount Existing Additional Debt Description
-------------------------------------------------------------------------------------------------------------------------------
57580 0000 Xxxxxxxx Xx
00000 Xxxxxxxx XXX No
00000 Xxxxxxx Xxx Building II No
6468 Holiday Ranch MHC-Happy Xx
Xxxxxxxx XXX
0000 Xxxx Xxxx Xxxxxxx Apartments No
57698 PPG Place Yes 59,000,000 Mezzanine
Allocated Mezzanine (Total Mezz Debt is
39550 Evergreen Portfolio C Yes 7,019,494 $45,200,000)
Future
Mortgage Debt Future Mortgage Debt
LoanNumber Permitted? Amount Permitted Future Mortgage Debt Description
--------------------------------------------------------------------------------------------------------
57580 Yes Variable: 80% LTV, Mezzanine
1.25x DSCR
Variable: After
8/24/2004, 75%
combined LTV ,1.00
to 1.15 combined
57945 Yes DSCR Mezzanine
Variable: After 3
years, 70% LTV,
57691 Yes 1.35x DSCR Mezzanine
Borrower may obtain unsecured loans
from its members and/or the affiliates
of Borrower and its members, provided,
that such unsecured loans are payable
solely from any excess cash flow from
the Property and, at no time, shall
such unsecured loans be paid prior to
any obligation owed to Mortgagee under
6468 Yes Variable the Loan Documents.
Variable: after 12
months, 95%
Occupancy, 80% LTV,
8096 Yes 1.00 to 1.20 XXXX Xxxxxxxxxxx
00000 Xx
00000 No
