EXHIBIT 4
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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Master Servicer,
LNR PARTNERS, INC.,
Special Servicer,
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
---------------------------------
$2,742,152,295
Commercial Mortgage Pass-Through Certificates
Series 2005-6
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE
CERTIFICATES
Section 1.01 Defined
Terms................................................
Section 1.02 Rules of
Construction; Other Definitional Provisions.........
Section 1.03 Certain
Calculations in Respect of the Mortgage Pool.........
Section 1.04
Cross-Collateralized Mortgage Loans..........................
Section 1.05
Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL
ISSUANCE
OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance of the Component Mortgage Loan REMIC and
REMIC I by Trustee..........................................
Section 2.03 Mortgage
Loan Sellers' Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04
Representations and Warranties of the Depositor..............
Section 2.05
Representations and Warranties of the Master Servicer........
Section 2.06
Representations and Warranties of the Special Servicer.......
Section 2.07
Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08
Execution, Authentication and Delivery of Class KC
Certificates; Creation of Component Mortgage Loan REMIC
Regular Interests and Component Mortgage Loan REMIC
Residual Interests..........................................
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 Serviced Loans.........................
Section 3.02
Collection of Mortgage Loan Payments.........................
Section 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts....
Section 3.04
Certificate Account, Distribution Account, Component
Mortgage Loan REMIC Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Interest Distribution Account, Excess Liquidation
Proceeds Account and Serviced Whole Loan Custodial
Account.....................................................
Section 3.05 Permitted
Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial
Accounts and the Excess Liquidation Proceeds Account........
Section 3.06
Investment of Funds in the Certificate Account, the
Servicing Account, the Interest Reserve Account, any
Serviced Whole Loan Custodial Account, the Excess
Interest Distribution Account, the Component Mortgage
Loan REMIC Distribution Account, the REMIC I
Distribution Account, the REMIC II Distribution Account,
the Excess Liquidation Proceeds Account, Interest
Reserve Account and the REO Account.........................
Section 3.07
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08
Enforcement of Alienation Clauses............................
Section 3.09
Realization Upon Defaulted Serviced 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 Serviced Loans and REO Properties....
Section 3.19
Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20
Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer
of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22
Sub-Servicing Agreements.....................................
Section 3.23
Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the
related Controlling Holder..................................
Section 3.24
Confidentiality..............................................
Section 3.25 No
Solicitation of Prepayments...............................
Section 3.26 Certain
Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27
Application of Default Charges...............................
Section 3.28 Matters
Regarding Serviced Whole Loans.......................
Section 3.29 Certain
Powers of Controlling Holders and Certain
Intercreditor Matters.......................................
Section 3.30 Matters
Relating to Certain Mortgage Loans...................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01
Distributions................................................
Section 4.02
Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I
Advances.................................................
Section 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest
Reserve Account.....................................
Section 4.06 Excess
Interest Distribution Account.........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02
Registration of Transfer and Exchange of Certificates........
Section 5.03
Book-Entry Certificates......................................
Section 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons
Deemed Owners........................................
Section 5.06
Certification by Certificate Owners..........................
Section 5.07 Regarding
the Identification of Certain Certificateholders...
ARTICLE VI
THE
DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
REMIC
ADMINISTRATOR
Section 6.01 Liability
of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
Section 6.02 Merger,
Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
Section 6.03
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
Section 6.04 Master
Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
Section 6.05 Rights of
the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03
Notification to Certificateholders...........................
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain
Matters Affecting the Trustee........................
Section 8.03 Trustee
Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee
May Own Certificates.................................
Section 8.05 Fees of
Trustee; Indemnification of Trustee..................
Section 8.06
Eligibility Requirements for Trustee.........................
Section 8.07
Resignation and Removal of the Trustee.......................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or
Consolidation of Trustee...........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee................
Section 8.11
Appointment of Custodians....................................
Section 8.12 Access to
Certain Information................................
Section 8.13 Filings
with the Securities and Exchange Commission..........
Section 8.14
[Reserved]...................................................
Section 8.15
Maintenance of Mortgage File.................................
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-SB
Certificate
EXHIBIT A-5 Form of Class A-4
Certificate
EXHIBIT A-6 Form of Class A-M
Certificate
EXHIBIT A-7 Form of Class A-J
Certificate
EXHIBIT A-8 Form of Class XW
Certificate
EXHIBIT A-9 Form of Class B
Certificate
EXHIBIT A-10
Form of Class C Certificate
EXHIBIT A-11
Form of Class D Certificate
EXHIBIT A-12
Form of Class E Certificate
EXHIBIT A-13
Form of Class F Certificate
EXHIBIT A-14
Form of Class G Certificate
EXHIBIT A-15
Form of Class H Certificate
EXHIBIT A-16
Form of Class J Certificate
EXHIBIT A-17
Form of Class K Certificate
EXHIBIT A-18
Form of Class L Certificate
EXHIBIT A-19
Form of Class M Certificate
EXHIBIT A-20
Form of Class N Certificate
EXHIBIT A-21
Form of Class O Certificate
EXHIBIT A-22
Form of Class P Certificate
EXHIBIT A-23
Form of Class Q Certificate
EXHIBIT A-24
Form of Class S Certificate
EXHIBIT A-25
Form of Class R-I Certificate
EXHIBIT A-26
Form of Class R-II Certificate
EXHIBIT A-27
Form of Class V Certificate
EXHIBIT A-28
Form of Class KC Certificate
EXHIBIT B Form of
Investment Representation Letter
EXHIBIT C-1 Form of Transfer
Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor
Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request
for Release
EXHIBIT E Form of
ERISA Representation Letter
EXHIBIT F Form of
Custodial Certification
EXHIBIT G Form of
Trustee Distribution Date Statement
EXHIBIT H Request
for Review
EXHIBIT I Form of
Notice Regarding Purchase Option Exercise
EXHIBIT J Form of
Notice and Certification Regarding Defeasance of a
Mortgage Loan
EXHIBIT K Form of
Certification to be Provided with Form 10-K
EXHIBIT L Form of
Certification to be Provided to Depositor
EXHIBIT M Form of
Regulation S Certificate
EXHIBIT N Form of
Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT O Form of
Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT P Form of
Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
SCHEDULE I Mortgage Loan
Schedule
SCHEDULE II Sub-Servicing
Agreements in Effect as of the Closing Date
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV Mortgage Loans that
Initially Pay Interest Only
SCHEDULE V Mortgage Loans
Containing Additional Debt
SCHEDULE VI Schedule of
Controlling Holders
SCHEDULE VII
Schedule of Earnout and Holdback Loans
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), dated
and
effective as of December 1, 2005, is by and among BANC OF AMERICA
COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, N.A., as Master
Servicer, LNR
PARTNERS, INC., as Special Servicer, and LASALLE BANK NATIONAL
ASSOCIATION, as
Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder
in multiple Classes, which in the aggregate will evidence the
entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that three
segregated
pools of assets within the Trust Fund, exclusive of the Excess
Interest and the
Excess Interest Distribution Account, be treated for federal income
tax purposes
as three separate real estate mortgage investment conduits (the
"Component
Mortgage Loan REMIC", "REMIC I" and "REMIC II", respectively).
Component Mortgage Loan REMIC
The Trustee will elect to treat the segregated pool of assets
consisting of the KC Component Mortgage Loan and certain other
related assets
subject to this Agreement as a REMIC for federal income tax
purposes, and such
segregated pool of assets will be designated as the "Component
Mortgage Loan
REMIC". The Component Mortgage Loan REMIC Residual Interest will
represent the
sole class of "residual interests" in the Component Mortgage Loan
REMIC for
purposes of the REMIC Provisions under federal income tax law, and
will be
represented by the Class R-I Certificates. The Component Mortgage
Loan REMIC
Regular Interests will consist of the KC Component Mortgage Loan
REMIC Senior
Regular Interest and the KC Component Mortgage Loan REMIC
Subordinate Regular
Interests. The KC Component Mortgage Loan REMIC Senior Regular
Interest will not
be certificated and will be held by REMIC I. The Class KC
Certificates will
represent the KC Component Mortgage Loan REMIC Subordinate Regular
Interests.
The initial KC Component Mortgage Loan Senior Balance is equal
to
$150,000,000. The following table sets forth the initial KC
Component Mortgage
Loan Subordinate Balances and the Corresponding KC Component
Mortgage Loan REMIC
Subordinate Regular Interests:
Corresponding KC Component
Initial KC Component Mortgage
Mortgage Loan REMIC
Loan Subordinate Balance
Subordinate Regular Interest
$25,930,034
Class KC-A Certificates
$23,759,036
Class KC-B Certificates
$23,727,357
Class KC-C Certificates
$59,460,946
Class KC-D Certificates
$23,727,357
Class KC-E Certificates
$43,395,270
Class KC-F Certificates
REMIC I
As provided herein, the Trustee will elect that the portion of
the
Trust Fund consisting of the Majority Mortgage Loans (exclusive of
Excess
Interest), the Component Mortgage Loan REMIC Senior Regular
Interest and certain
other related assets subject to this Agreement shall be treated as
a REMIC for
federal income tax purposes, and such segregated asset pool will be
designated
as "REMIC I". The REMIC I Regular Interests listed below under the
heading
"Corresponding REMIC I Regular Interests" constitute "regular
interests" in
REMIC I and the Class R-I Certificates constitute the sole Class of
"residual
interests" in REMIC I created hereunder for purposes of the REMIC
Provisions.
The following table sets forth the Class or Component
designation,
the corresponding REMIC I Regular Interest (the "Corresponding
REMIC I Regular
Interest"), and the Corresponding Components of the Class XW
Certificates for
each Class of the REMIC II Certificates (the "Corresponding
Certificates"):
<TABLE>
<CAPTION>
Corresponding
Corresponding REMIC I
REMIC I
Corresponding Components
Certificates
Regular Interests(1)
Principal Balance
of Class X Certificates(1)
----------------
---------------------
-----------------
--------------------------
<S>
<C>
<C>
<C>
Class A-1
LA-1
$119,000,000
XA-1
Class A-2
LA-2
$206,500,000
XA-2
Class A-3
LA-3
$50,000,000
XA-3
Class A-SB
LA-SB
$189,006,000
XA-SB
Class A-4
LA-4
$1,355,000,000
XA-4
Class A-M
LA-M
$274,215,000
XA-M
Class A-J
LA-J
$215,945,000
XA-J
Class B
LB
$27,421,000
XB
Class C
LC
$30,850,000
XC
Class D
LD
$20,566,000
XD
Class E
LE
$20,566,000
XE
Class F
LF
$34,277,000
XF
Class G
LG
$23,994,000
XG
Class H
LH
$27,421,000
XH
Class J
LJ
$30,849,000
XJ
Class K
LK
$27,422,000
XK
Class L
LL
$13,711,000
XL
Class M
LM
$17,138,000
XM
Class N
LN
$3,428,000
XN
Class O
LO
$6,855,000
XO
Class P
LP
$3,428,000
XP
Class Q
LQ
$10,283,000
XQ
Class S
LS
$34,277,295
XS
</TABLE>
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(1) The REMIC I
Regular Interest and the Component of the Class XW
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.
<PAGE>
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-SB, Class A-4, Class A-M, Class A-J,
Class XW,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates
will constitute "regular interests" in REMIC II, and the Class R-II
Certificates
will constitute the sole Class of "residual interests" in REMIC II
for purposes
of the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate, and the Initial Class Principal Balance
for each of
the Classes of REMIC II Regular Certificates, which are issued by
REMIC II, and
the Class KC Certificates, which are issued by the Component
Mortgage Loan
REMIC:
Approximate Initial
Initial Class
Designation
Pass-Through Rate
Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular Certificates
Class A-1
5.0010% per annum
$119,000,000
Class A-2
5.1650% per annum(1)
$206,500,000
Class A-3
5.1820% per annum(2)
$50,000,000
Class A-SB
5.1820% per annum(2)
$189,006,000
Class A-4
5.1820% per annum(2)
$1,355,000,000
Class A-M
5.1820% per annum(2)
$274,215,000
Class A-J
5.1820% per annum(2)
$215,945,000
Class B
5.1820% per annum(2)
$27,421,000
Class C
5.1820% per annum(2)
$30,850,000
Class D
5.1820% per annum(2)
$20,566,000
Class E
5.1820% per annum(2)
$20,566,000
Class F
5.1820% per annum(2)
$34,277,000
Class G
5.1820% per annum(2)
$23,994,000
Class H
5.1820% per annum(2)
$27,421,000
Class J
5.1820% per annum(2)
$30,849,000
Class K
5.1820% per annum(2)
$27,422,000
Class L
4.9270% per annum (1)
$13,711,000
Class M
4.9270% per annum (1)
$17,138,000
Class N
4.9270% per annum (1)
$3,428,000
Class O
4.9270% per annum (1)
$6,855,000
Class P
4.9270% per annum (1)
$3,428,000
Class Q
4.9270% per annum (1)
$10,283,000
Class S
4.9270% per annum (1)
$34,277,295
Class XW
0.0174% per annum (3)
$2,742,152,295 (4)
Class KC Certificates
Class KC-A
5.2700% per annum (5)
$25,930,034
Class KC-B
5.3180% per annum (5)
$23,759,036
Class KC-C
5.4610% per annum (5)
$23,727,357
Class KC-D
5.9380% per annum (5)
$59,460,946
Class KC-E
6.1290% per annum (5)
$23,727,357
Class KC-F
6.7000%
per annum (5)
$43,395,270
------------
(1) The
Pass-Through Rate for the Class A-2, Class L, Class M, Class N,
Class
O, Class
P, Class Q and Class S Certificates will not exceed the
Weighted
Average
Adjusted Net Mortgage Rate for such Distribution Date.
(2) The
Pass-Through Rate for the Class A-3, Class A-SB, Class A-4, Class
A-M,
Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J
and Class K Certificates for each Distribution Date will equal
the
Weighted
Average Adjusted Net Mortgage Rate for such Distribution Date.
(3) The
Pass-Through Rates for the Class XW Certificates will be calculated
in
accordance
with the definitions of "Class XW Pass-Through Rate".
(4) The Class XW
Certificates will not have a Class Principal Balance; rather,
the Class
XW Certificates will accrue interest as provided herein on the
Class XW
Notional Amount.
(5) The rate set
forth in the "Pass-Through Rate" column for the Class KC
Certificates is expressed on the basis of a 360-day year and the
actual
number of
days elapsed in the relevant month of accrual. For purposes of
calculating the Pass-Through Rate of the Class KC Certificates for
each
Interest
Accrual Period, each Pass-Through Rate will be converted to the
annualized
rate of interest at which interest would have to accrue on the
Certificate Balance of the Class KC Certificates (on a basis of a
360-day
year,
consisting of twelve 30-day months) to produce the aggregate
amount
of
interest which actually accrues on the Class KC Certificates for
such
Interest
Accrual Period at the respective rates set forth in the
"Pass-Through Rate" column.
The Class R-I and Class R-II Certificates will bear no
Pass-Through
Rate and will have no initial Certificate Principal Balances or
notional
amounts. Any Available Distribution Amount remaining in the (i)
Component
Mortgage Loan REMIC Distribution Account after the distribution of
all amounts
distributable in respect of the Component Mortgage Loan REMIC
Regular Interests
and (ii) 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 or the KC Component Mortgage Loan
Available
Distribution Amount for such Distribution Date, if any, remaining
in the
Component Mortgage Loan REMIC Distribution Account or in the REMIC
I
Distribution Account, as applicable). Any Available Distribution
Amount
remaining in the REMIC II Distribution Account after distributions
to the
Holders of the REMIC II Regular Certificates shall be distributed
to the Holders
of the Class R-II Certificates (but only to the extent of the
Available
Distribution Amount for such Distribution Date, if any, remaining
in the REMIC
II Distribution Account).
The portion of the Trust Fund consisting of the Excess Interest
and
the Excess Interest Distribution Account shall be treated as a
grantor trust
(the "Grantor Trust") for federal income tax purposes. The Class V
Certificates
represent undivided beneficial interests in the portion of the
Grantor Trust
representing Excess Interest and the Excess Interest Distribution
Account for
federal income tax purposes.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
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.
"277 Park Avenue Intercreditor Agreement": With respect to the
277
Park Avenue Whole Loan, the Agreement Among Noteholders dated as of
December 1,
2005 by and between the holder of the 277 Park Avenue Mortgage Loan
and the 277
Park Avenue Pari Passu Note A-2 Holder relating to the relative
rights of such
holders, as the same may be further amended from time to time in
accordance with
the terms thereof.
"277 Park Avenue Mezzanine Intercreditor Agreement": That
certain
Intercreditor Agreement, dated as of December 27, 2005 by and
between Bank of
America, N.A. as "Senior Lender" and the 277 Park Avenue Mezzanine
Loan Holder
as "Mezzanine Lender".
"277 Park Avenue Mezzanine Loan": That certain mezzanine loan
related to the 277 Park Avenue Mortgage Loan, which is evidenced by
that certain
Mezzanine Loan Agreement, dated as of September 30, 2005 by and
between Bank of
America, N.A. and the 277 Park Avenue Mezzanine Loan Borrower.
"277 Park Avenue Mezzanine Loan Borrower": Park Avenue Mezz I,
LLC,
a Delaware limited liability company.
"277 Park Avenue Mezzanine Loan Holder": Bank of America, N.A.
"277 Park Avenue Mortgage Loan": The Mortgage Loan identified
as
Loan No. 59147 in the Mortgage Loan Schedule, which, together with
the 277 Park
Avenue Pari Passu Note A-2, is secured by a Mortgage on the 277
Park Avenue
Mortgaged Property.
"277 Park Avenue Mortgaged Property": The property that secures
the
277 Park Avenue Whole Loan.
"277 Park Avenue Noteholders": The holder of the Mortgage Note
for
the 277 Park Avenue Mortgage Loan and the 277 Park Avenue Pari
Passu Note A-2
Holder.
"277 Park Avenue Pari Passu Note A-1": With respect to the 277
Park
Avenue Mortgage Loan, the related Mortgage Note that is included in
the Trust
Fund.
"277 Park Avenue Pari Passu Note A-2": The Mortgage Note related
to
the 277 Park Avenue Whole Loan that is not included in the Trust,
which is pari
passu in right of payment to the 277 Park Avenue Pari Passu Note
A-1 to the
extent set forth in the 277 Park Avenue Intercreditor
Agreement.
"277 Park Avenue Pari Passu Note A-2 Holder": The holder of the
277
Park Avenue Pari Passu Note A-2.
"277 Park Avenue Whole Loan": The 277 Park Avenue Mortgage Loan
together with the 277 Park Avenue Pari Passu Note A-2. References
herein to the
277 Park Avenue Whole Loan shall be construed to refer to the
aggregate
indebtedness under the 277 Park Avenue Pari Passu Note A-1 and the
277 Park
Avenue Pari Passu Note A-2.
"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
Class
KC Certificates and any Class of REMIC II Regular Certificates, for
any
Distribution Date, one month's interest (calculated on a 30/360
basis) at the
Pass-Through Rate applicable to such Class of Certificates for such
Distribution
Date, accrued on the related Class Principal Balance of such Class
of
Certificates outstanding immediately prior to such Distribution
Date and, with
respect to the Class XW 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
Class KC
Certificates and any Class of REMIC II Regular Certificates for any
Distribution
Date shall be deemed to have accrued during the applicable Interest
Accrual
Period.
"Accrued Component Interest": With respect to each Component of
the
Class XW Certificates for any Distribution Date, one month's
interest at the
Class XW 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 definition of Class XW Strip Rate
with respect to
any applicable Component and any Distribution Date, and shall be
deemed to
accrue during the calendar month preceding the month in which such
Distribution
Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the
basis
of the actual number of days elapsed during any calendar month (or
other
applicable recurring accrual period) in a year assumed to consist
of 360 days.
"Additional Collateral": Any non-real property collateral
pledged
and/or delivered by or on behalf of the related Mortgagor and held
by the
related Mortgagee to secure payment on any Loan.
"Additional Exclusions": Exclusions relating to terrorist or
similar
acts in addition to those customarily found in insurance policies
for Mortgaged
Properties prior to September 11, 2001.
"Additional Master Servicing Compensation": As defined in
Section
3.11(b).
"Additional Special Servicing Compensation": As defined in
Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or
shortfall
experienced with respect to the Trust Fund and not otherwise
included in the
calculation of a Realized Loss, that would result in the Holders of
the
Principal Pay Certificates receiving less than the full amount of
principal
and/or interest to which they are entitled on any Distribution
Date.
"Adjusted Net Mortgage Rate": With respect to any Majority
Mortgage
Loan or REO Serviced Loan or the KC Component Mortgage Loan Senior
Component,
for any Distribution Date, the annualized rate at which interest
would have to
accrue thereon on a 30/360 Basis during the most recently ended
calendar month
to produce the actual amount of interest accrued (or, if such Loan
or REO
Serviced Loan or the KC Component Mortgage Loan Senior Component,
as the case
may be, is prepaid, in whole or in part, or otherwise liquidated
during such
calendar month, that otherwise would have accrued) in respect of
such Loan or
REO Serviced Loan or the KC Component Mortgage Loan Senior
Component, as the
case may be, at the related Net Mortgage Rate in effect for such
Loan or REO
Serviced Loan or the KC Component Mortgage Loan Senior Component
during such
calendar month. Such rate shall be calculated by multiplying (i)
the Net
Mortgage Rate (and, in the case of an ARD Loan after its
Anticipated Repayment
Date, without giving effect to any Excess Interest or the Excess
Interest Rate)
by (ii) the actual number of days of accrued interest for the
related period for
such Loan or REO Serviced Loan or the KC Component Mortgage Loan
Senior
Component divided by 30; provided, however, that with respect to
such Loan or
REO Serviced Loan or the KC Component Mortgage Loan Senior
Component, the
Adjusted Net Mortgage Rate for the one-month period (a) prior to
the Due Dates
in January and February in any year that is not a leap year or in
February in
any year that is a leap year will be the per annum rate stated in
the related
Mortgage Note (or, in the case of the KC Component Mortgage Loan
Senior
Component, 5.23563709643111%) as of the Closing Date less the
related
Administrative Fee Rate and (b) prior to the Due Date in March will
be
determined inclusive of one day of interest retained for each of
the one-month
periods prior to the Due Dates in January and February in any year
that is not a
leap year or February in any year that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan
and
REO Serviced Loan, as specified in the Mortgage Loan Schedule,
being the sum of
the related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any
Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in
accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of
the
status of the Grantor Trust as a "grantor trust" under subpart E,
Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon the
Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating
thereto, as of
any date of determination, the qualification, downgrade or
withdrawal of the
rating then assigned to such Class of Rated Certificates by such
Rating Agency
(or the placing of such Class of Rated Certificates on "negative
credit watch"
status in contemplation of any such action with respect
thereto).
"Adverse REMIC Event": With respect to any of the Component
Mortgage
Loan REMIC, REMIC I or REMIC II, either (i) the endangerment of the
status of
such REMIC as a REMIC or (ii) except as permitted by Section
3.17(a), the
imposition of a tax upon such REMIC or any of its assets or
transactions
(including, without limitation, the tax on prohibited transactions
as defined in
Section 860F(a)(2) of the Code and the tax on certain contributions
set forth in
Section 860G(d) of the Code).
"Affiliate": With
respect to any specified Person, any
other Person
controlling or
controlled by or under common control with such
specified Person.
For the purposes of
this definition,
"control" when
used
with respect to any specified Person means the power to direct
the management
and policies of such
Person, directly or indirectly, whether through the
ownership of voting
securities,
by contract or otherwise, and the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all
amendments hereof and supplements hereto.
"Annual Accountant's
Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Loan, the
date
specified on the related Mortgage Note, as of which Excess Interest
shall begin
to accrue on such Loan, which date is prior to the Stated Maturity
Date for such
Loan.
"Applicable State Law": For purposes of Article X, the
Applicable
State Law shall be (a) the laws of any state in which the Corporate
Trust Office
of the Trustee is located, (b) the laws of the states in which any
loan
documents are held and/or any REO Properties are located, (c) such
other state
and local law whose applicability shall have been brought to the
attention of
the REMIC Administrator by either (i) an Opinion of Counsel
delivered to it or
(ii) written notice from the appropriate taxing authority as to
the
applicability of such state law, and (d) such other state or local
law as to
which the REMIC Administrator has actual knowledge of
applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property
as to which an appraisal is required to be performed pursuant to
the terms of
this Agreement, a narrative appraisal complying with Title XI of
FIRREA (or, in
the case of a Loan or REO Serviced Loan with a Stated Principal
Balance as of
the date of such appraisal of $2,000,000 or less, at the Special
Servicer's
option, either a limited appraisal and a summary report or an
internal valuation
prepared by the Special Servicer) that indicates the "market value"
of the
subject property, as defined in 12 C.F.R. ss.225.62(g), and is
conducted by a
Qualified Appraiser (or by the Special Servicer in the case of a
limited
appraisal and summary report or internal valuation with respect to
a Loan or an
REO Serviced 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
Serviced Loan, an amount (calculated as of the Determination Date
by the Special
Servicer 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
Serviced Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such
Required
Appraisal
Serviced 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 Charges) accrued on such
Required
Appraisal Serviced 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 Serviced Loan, (d) all
related
unreimbursed Advances made by or on behalf of the Master Servicer,
the
Special
Servicer or the Trustee with respect to such Required Appraisal
Serviced
Loan and reimbursable out of the Trust Fund and all Advances
related to
such Required Appraisal Serviced Loan that were not reimbursed
out of
collections on such Required Appraisal Serviced 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
Serviced
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 Serviced 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 Serviced 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 Serviced 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 Serviced 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
Serviced 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
Serviced Loans.
In addition, notwithstanding the foregoing and for the avoidance
of
doubt, for purposes of calculating Appraisal Reduction Amounts for
determining
change of control with respect to any Serviced Whole Loan,
references to the
Stated Principal Balance will be to the entire Stated Principal
Balance thereof
(i.e., the aggregate Stated Principal Balances of the related
Mortgage Loan and
the related Companion Loan(s)).
For the avoidance of doubt and for purposes of calculating
Appraisal
Reduction Amounts (i) in connection with any P&I Advance
required to be made
under this Agreement for (A) a Mortgage Loan constituting a part of
a Serviced
Whole Loan, such calculation shall be made based upon and allocated
solely to
the Stated Principal Balance of the related Mortgage Loan contained
in the
related Serviced Whole Loan and shall exclude the Stated Principal
Balance of
the related Companion Loan, (B) the KC Component Mortgage Loan,
shall be
allocated to the KC Component Mortgage Loan Subordinate Components
in reverse
sequential order and then to the KC Component Mortgage Loan Senior
Component,
the KinderCare Portfolio Pari Passu Note A-2 and the KinderCare
Portfolio Pari
Passu Note A-3, pro rata, based on their respective Principal
Balances, and (C)
the 277 Park Avenue Whole Loan, shall be allocated to the 277 Park
Avenue Pari
Passu Note A-1 and 277 Park Avenue Pari Passu Note A-2, pro rata,
based on their
respective Principal Balances, and (ii) for purposes of calculating
a Control
Appraisal Period with respect to the KC Component Mortgage Loan,
shall be
calculated based on the entire Stated Principal Balance thereof
(including the
KC Component Mortgage Loan Subordinate Components) and allocated to
the KC
Component Mortgage Loan Subordinate Components in reverse
sequential order and
then to the KC Component Mortgage Loan Senior Component, the
KinderCare
Portfolio Pari Passu Note A-2 and the KinderCare Portfolio Pari
Passu Note A-3,
pro rata, based on their respective Principal Balances.
Any Appraisal Reduction Amount for any Serviced Whole Loan shall
be
deemed allocated, first, to the related Subordinate Interest(s) to
the extent of
its outstanding principal balance, and then to the related senior
Serviced
Loan(s).
"Appraisal Trigger Event": With respect to any Serviced Loan, any
of
the following events:
(i) such Serviced Loan becomes a Modified Serviced Loan;
(ii) any Monthly Payment with respect to such Serviced 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 Serviced
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 Serviced 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 Serviced 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 Serviced 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 Serviced
Loan set forth below (in each case subject to the limitations set
forth in
Section 3.21(e) and Section 3.21(f)):
(i) with respect to any Performing Serviced Loan, the Master
Servicer
shall obtain the approval or consent of the Special Servicer in
connection
with a Special Action;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP
Serviced
Whole Loan that is a Performing Serviced Loan that involves an
extension
of the maturity date of such Loan or (B) in connection with a
Special
Action for any Non-Partitioned Loan or Post CAP Serviced Whole
Loan that
is a Performing Serviced Loan, the Master Servicer shall obtain
the
approval and consent of the Special Servicer and the Special
Servicer
shall
obtain the approval and consent of the Directing
Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP
Serviced
Whole Loan
that is a Specially Serviced Loan, the Special Servicer shall
obtain the
approval and consent of the Directing Certificateholder in
connection
with a Special Action;
(iv) with respect to a Serviced Whole Loan during any time
period
that a
related Control Appraisal Period does not exist, the Master
Servicer,
if such Serviced Whole Loan is a then Performing Serviced Loan,
shall seek
the approval and consent of the Special Servicer, and the
Special
Servicer shall then obtain the approval and consent of the
related
Controlling Holder in connection with a Special Action;
(v) with respect to a Serviced Whole Loan during any time
period
that a
related Control Appraisal Period does not exist, the Special
Servicer,
if such Serviced Whole Loan is a then Specially Serviced Loan,
shall
obtain the approval and consent of the related Controlling Holder
in
connection
with a Special Action;
(vi) with respect to the KC Component Mortgage Loan during any
time
period
that a KC Control Appraisal Period does not exist, the Master
Servicer,
if the KC Component Mortgage Loan is a then Performing Loan,
shall
obtain the approval and consent of the Special Servicer, and
the
Special Servicer
shall then obtain the approval and consent of the KC
Controlling Holder in connection with a Special Action; and
(vii) with respect to the KC Component Mortgage Loan during any
time
period
that a KC Control Appraisal Period does not exist, the Special
Servicer,
if the KC Component Mortgage Loan is a then Specially Serviced
Loan,
shall obtain the approval and consent of the KC Controller Holder
in
connection
with a Special Action.
With respect to any extension or Special Action set forth in
clauses
(ii), (iv) and (vi) above, the Special Servicer shall respond to
the Master
Servicer in writing (which may be via e-mail or facsimile) of its
decision to
grant or deny the Master Servicer's request for approval and
consent within ten
Business Days of its receipt of such request and all information
reasonably
requested by the Special Servicer, as such time frame may be
extended if the
Special Servicer is required to seek the consent of the
Directing
Certificateholder, any Controlling Holder or any Rating Agency. If
the Special
Servicer so fails to respond to the Master Servicer within the time
period
referenced in the immediately preceding sentence, such approval and
consent
shall be deemed granted. With respect to any Special Action
described in clauses
(ii) and (iii) above, the Directing Certificateholder shall respond
to the
Special Servicer within ten Business Days of its receipt of such
request in
writing along with any reasonably requested information (which may
be via e-mail
or facsimile) and such request will be deemed granted if the
Directing
Certificateholder does not respond in such time frame. With respect
to any
Special Action described in clauses (iv) through (vii) above, the
related
Controlling Holder shall respond in writing along with any
reasonably requested
information (which may be via e-mail or facsimile) to the Master
Servicer or
Special Servicer, as applicable, within ten Business Days of its
receipt of a
request for its approval and consent, and such request will be
deemed granted if
the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in
payments
and accrual of interest, including the capture of Excess Interest
from the
related mortgaged property and an increase in the applicable
Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each
Mortgage Loan
that is an ARD Loan is 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 of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the related Loan, as
amended,
modified, renewed or extended through the date hereof and from time
to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such Serviced 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 Serviced 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
Serviced 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 Serviced Loan granted or agreed to by the Master
Servicer or
Special Servicer pursuant to Section 3.20). With respect to any REO
Serviced
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 Serviced Loan on the last Due
Date prior
to its becoming an REO Serviced Loan.
"Available Distribution Amount": With respect to any
Distribution
Date, the sum of (I) with respect to each Majority Mortgage Loan,
an amount
equal to (a) the balance on deposit in the Certificate Account as
of the close
of business on the related Determination Date, including, without
limitation, if
and to the extent on deposit therein as of such time, the Master
Servicer
Remittance Amount for the related Master Servicer Remittance Date,
any P&I
Advances made by the Master Servicer or the Trustee 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 REMIC I Distribution
Account pursuant
to Section 4.05, net of (b) any portion of the amounts described in
clause (a)
of this definition that represents one or more of the following:
(i) collected
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any payments of principal (including,
without
limitation, Principal Prepayments) and interest, Liquidation
Proceeds and
Insurance Proceeds received after the end of the related Collection
Period,
(iii) Prepayment Premiums, (iv) Excess Interest, (v) any amounts
payable or
reimbursable to any Person from the REMIC I Distribution Account
pursuant to any
of clauses (ii) through (vi) of Section 3.05(b), (vi) any amounts
deposited into
the REMIC I Distribution Account in error, (vii) all funds released
from the
Excess Liquidation Proceeds Account with respect to such
Distribution Date,
(viii) any amounts payable or reimbursable to any Person from the
Certificate
Account pursuant to clauses (ii) through (xvii) of Section 3.05(a);
(ix) with
respect to each Mortgage Loan that accrues interest on an
Actual/360 Basis and
any Distribution Date relating to the one-month period preceding
the
Distribution Date in each February (and in any January of a year
that is not a
leap year), an amount equal to the related Withheld Amount pursuant
to Section
4.05; and (x) with respect to the first Distribution Date, the
related Interest
Deposit Amount; provided that the Available Distribution Amount for
the Final
Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii),
and (b)(iii) of this definition; and (II) with respect to the KC
Component
Mortgage Loan, all amounts distributable pursuant to clauses (i),
(ii) and (iii)
of Section 4.01(j).
"BACM": Banc of America Commercial Mortgage Inc., or its
successors
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue
of
any modification entered into as of the Closing Date (or, in the
case of a
Replacement Mortgage Loan, as of the related date of substitution)
provides for
an amortization schedule extending beyond its Stated Maturity Date
and as to
which, in accordance with such terms, the Monthly Payment due on
its Stated
Maturity Date is at least two times larger than the Monthly Payment
due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any
date
of determination, the Monthly Payment payable on the Stated
Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any
Balloon
Loan that is included as part of the Trust Fund, with a Stated
Maturity Date
that occurs after, or that provides for a grace period for its
Balloon Payment
that runs past, the Determination Date in any calendar month, and
as to which
the Balloon Payment is actually received after the Determination
Date in such
calendar month (but no later than its Stated Maturity Date or, if
there is an
applicable grace period, beyond the end of such grace period), the
amount of
interest, to the extent not collected from the related
Determination Date, that
would have accrued on the principal portion of such Balloon Payment
during the
period from the related Stated Maturity Date to, but not including,
the first
day of the calendar month following the month of maturity (less the
amount of
related Master Servicing Fees that would have been payable from
that uncollected
interest and, if applicable, exclusive of any portion of that
uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Barclays": Barclays Capital Real Estate Inc., and its successors
in
interest.
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated September 30,
2005,
relating to trust funds established by the Depositor and publicly
offered
mortgage pass-through certificates evidencing interests
therein.
"Book-Entry Certificate": Any Certificate registered in the name
of
the Depository or its nominee.
"Borrower":
Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person
that has not
signed the related Mortgage Note but owns an interest in the
related Mortgaged
Property, which interest has been encumbered to secure such
Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller
pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale
Agreement.
"BSCMI": Bear Stearns Commercial Mortgage, Inc., and its
successors
in interest.
"Burnett Plaza Loan": That certain Mortgage Loan identified as
Loan
No. 58791 on the Mortgage Loan Schedule.
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in Illinois, Ohio, Pennsylvania, New
York, any city
in which the office of the Certificate Registrar is located or any
city in which
the Corporate Trust Office of the Trustee or principal place of
business of the
Master Servicer or Special Servicer is located are authorized or
obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2005-6, as executed by the
Trustee and
authenticated and delivered hereunder by the Certificate
Registrar.
"Certificate Account": The segregated account or accounts
created
and maintained by the Master Servicer pursuant to Section 3.04(a)
on behalf of
the Trustee in trust for Certificateholders, which shall be
entitled "Bank of
America, N.A., as Master Servicer, in trust for the registered
holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2005-6, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II
Regular
Certificates or any Class of Class KC Certificates, as of any date
of
determination, a fraction, expressed as a decimal carried to at
least eight
places, the numerator of which is the then related Class Principal
Balance or
Class XW Notional Amount, as the case may be, and the denominator
of which is
the related Initial Class Principal Balance or Initial Class XW
Notional Amount,
as the case may be.
"Certificate Notional Amount": With respect to any Class XW
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 XW Notional
Amount.
"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 or any Class KC Certificate, as of any date of
determination, the
then outstanding principal amount of such Certificate equal to the
product of
(a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the
then Class Principal Balance of the Class of Certificates to which
such
Certificate belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed pursuant to Section
5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided
that solely for
the purposes of giving any consent, approval or waiver pursuant to
this
Agreement, any Certificate registered in the name of the Depositor,
a Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator
or the Trustee or any Affiliate of any of them shall be deemed not
to be
outstanding, and the Voting Rights to which any of them is entitled
shall not be
taken into account in determining whether the requisite percentage
of Voting
Rights necessary to effect any such consent, approval or waiver has
been
obtained, except as otherwise provided in Sections 7.04 and
11.01(b) or except
in connection with the Controlling Class exercising its rights
under Section
3.23, or unless such Persons collectively own an entire Class of
Certificates
and only the Holders of such Class of Certificates are entitled to
grant such
consent, approval or waiver. The Certificate Registrar shall be
entitled to
request and rely upon a certificate of the Depositor, the Master
Servicer, the
Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the
case may be, in determining whether or not a Certificate is
registered in the
name of an Affiliate of such Person. All references herein to
"Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners
as they may
indirectly exercise such rights through the Depository and the
Depository
Participants, except as otherwise specified herein; provided,
however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is
registered in
the Certificate Register.
"Certification Party": As defined in Section 8.13(c).
"Certifying Person": As defined in Section 8.13(c).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation and
each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior
Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-M and Class A-J
Certificates.
"Class A Senior Certificates": Any one of the Class A-1, Class
A-2,
Class A-3, Class A-SB and Class A-4 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
5.0010%.
"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 per annum rate equal to
5.1650%;
provided, however, that the Class A-2 Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"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 per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class A-4 Certificate": Any one of the Certificates with a
"Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class A-J Certificate": Any one of the Certificates with a
"Class
A-J" designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class A-M Certificate": Any one of the Certificates with a
"Class
A-M" designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class A-SB Certificate": Any one of the Certificates with a
"Class
A-SB" 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-SB Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class A-SB Planned Principal Amount": The planned principal
amount
set forth on Annex D to the Prospectus Supplement relating to
principal payments
for the Class A-SB Certificates.
"Class B Certificate": Any one of the Certificates with a "Class
B"
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 B Pass-Through Rate": A per annum rate equal to 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-10
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date.
"Class D Certificate": Any one of the Certificates with a "Class
D"
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 D Pass-Through Rate": A per annum rate equal to 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-12
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date.
"Class F Certificate": Any one of the Certificates with a "Class
F"
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 F Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date.
"Class G Certificate": Any one of the Certificates with a "Class
G"
designation on the face thereof, substantially in the form of
Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date.
"Class H Certificate": Any one of the Certificates with a "Class
H"
designation on the face thereof, substantially in the form of
Exhibit A-15
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-16
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 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-17
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 the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date.
"Class KC Certificates": Each of the Class KC-A, Class KC-B,
Class
KC-C, Class KC-D, Class KC-E and Class KC-F Certificates.
"Class KC Pass-Through Rate": With respect to any Distribution
Date
and any Class of Class KC Certificates, the rate per annum set
forth in the
Preliminary Statement hereto.
"Class KC-A Certificate": Any one of the Certificates with a
"Class
KC-A" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class KC-B Certificate": Any one of the Certificates with a
"Class
KC-B" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class KC-C Certificate": Any one of the Certificates with a
"Class
KC-C" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class KC-D
Certificate": Any one of the Certificates with a "Class
KC-D" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class KC-E Certificate": Any one of the Certificates with a
"Class
KC-E" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class KC-F Certificate": Any one of the Certificates with a
"Class
KC-F" designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing a "regular interest" in the
Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class
L"
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 L Pass-Through Rate": A per annum rate equal to 4.9270%;
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-19
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 4.9270%;
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-20
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 4.9270%;
provided, however, that the Class N Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class
O"
designation on the face thereof, substantially in the form of
Exhibit A-21
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 4.9270%;
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-22
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 4.9270%;
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 or any Class of Class KC
Certificates
outstanding as of any date of determination. As of the Closing
Date, the Class
Principal Balance of each such Class of Certificates shall equal
the Initial
Class Principal Balance thereof. On each Distribution Date, the
Class Principal
Balance of each Class of Sequential Pay Certificates and each Class
of Class KC
Certificates shall be permanently reduced by the amount of any
distributions of
principal made thereon on such Distribution Date pursuant to
Section 4.01(b) and
Section 4.01(j), as applicable, and shall be further permanently
reduced on such
Distribution Date as and to the extent provided in Section
4.04.
"Class Q
Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of
Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Q
Pass-Through Rate": A per annum rate equal to 4.9270%;
provided, however, that the Class Q Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class R-I Certificate": Any one of the Certificates with a
"Class
R-I" designation on the face thereof, substantially in the form of
Exhibit A-25
attached hereto, and evidencing the Component Mortgage Loan REMIC
Residual
Interest and the REMIC I Residual Interest for purposes of the
REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class
R-II" designation on the face thereof, substantially in the form of
Exhibit A-26
attached hereto, and evidencing the sole Class of "residual
interest" in REMIC
II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class
S"
designation on the face thereof, substantially in the form of
Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class S Pass-Through Rate": A per annum rate equal to 4.9270%;
provided, however, that the Class S Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class V Certificate": Any one of the Certificates with a "Class
V"
designation on the face thereof, substantially in the form of
Exhibit A-27
attached hereto, and evidencing undivided beneficial interests in
the portion of
the Trust Fund consisting of Excess Interest and the Excess
Interest
Distribution Account.
"Class XW Certificate": Any one of the Certificates with a
"Class
XW" 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 XW Notional Amount": As of any date of determination, the
sum
of the then Component Notional Amounts of all of the
Components.
"Class XW Pass-Through Rate": With respect to the initial
Distribution Date, 0.0174% per annum, and for any subsequent
Distribution Date,
the weighted average of the Class XW 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 XW Strip Rate": With respect to any Class of Components
for
any Distribution Date, a rate per annum equal to (i) the Weighted
Average
Adjusted Net Mortgage Rate for such Distribution Date, minus (ii)
the
Pass-Through Rate for the Corresponding Certificates (provided that
in no event
shall any Class XW Strip Rate be less than zero).
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": December 29, 2005.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, issuers, placement
agents and
underwriters generally involved in the commercial mortgage loan
securitization
industry that is the principal such association or organization in
the
commercial mortgage loan securitization industry and one of whose
principal
purposes is the establishment of industry standards for
reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be selected
by the Master Servicer and reasonably acceptable to the Trustee,
the Special
Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Advance Recovery Report" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Advance Recovery Report" available as of the
Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Financial File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Historical Liquidation Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Investor Reporting Package": Collectively refers to:
(a) the
following seven electronic files: (i) CMSA Bond Level File,
(ii) CMSA
Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan
Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA
Financial
File, and
(vii) CMSA Special Servicer Loan File;
(b) the following nine supplemental reports: (i) CMSA
Comparative
Financial
Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA
Historical Loan Modification and Corrected Mortgage Loan Report,
(iv)
CMSA
Historical Liquidation Report, (v) CMSA Operating Statement
Analysis
Report,
(vi) CMSA NOI Adjustment Worksheet, (vii) CMSA REO Status
Report,
(viii)
CMSA Servicer Watch List and (ix) CMSA Loan Level Reserve - LOC
Report;
(c) the CMSA Advance Recoverability Report; and
(d) such other reports as CMSA may designate as part of the
CMSA
Investor
Reporting Package that are reasonably acceptable to the Master
Servicer,
Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Level Reserve LOC Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be recommended by the CMSA for commercial mortgage securities
transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Loan Periodic Update File" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer, the Special Servicer
and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any
event, shall
present the computations made in accordance with the methodology
described in
such form to "normalize" the full year net operating income and
debt service
coverage numbers used in the other reports required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Operating Statement Analysis Report" available as of
the Closing
Date on the CMSA Website or in such other form for the presentation
of such
information and containing such additional information as may from
time to time
be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally and is reasonably acceptable to the Master
Servicer.
"CMSA Property File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date on the CMSA Website, or such
other form
for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Reconciliation of Funds Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a
report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Servicer Watch List" available as of the
Closing Date
on the CMSA Website, or in such other final form for the
presentation of such
information and containing such additional information as may from
time to time
be promulgated as recommended by the CMSA for commercial mortgage
securities
transactions generally and, insofar as it requires the presentation
of
information in addition to that called for by the form of the
"Servicer Watch
List" available as of the Closing Date on the CMSA Website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Special Servicer Loan File": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Special Servicer Loan File" available as of the
Closing Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in
the calendar
month preceding the month in which such Distribution Date occurs
(or, in the
case of the initial Distribution Date, commencing immediately
following the
Cut-off Date) and ending on and including the Determination Date in
the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loans": Collectively, the 277 Park Avenue Companion
Loan
and the KinderCare Portfolio Companion Loans.
"Companion Loan Holder": With respect to the 277 Park Avenue
Whole
Loan, the 277 Park Avenue Companion Loan Holder and, with respect
to the
KinderCare Portfolio Whole Loan, the KinderCare Portfolio Note A-2
Holder and
the KinderCare Portfolio Note A-3 Holder.
"Compensating Interest Payment": With respect to any
Distribution
Date, any payment made by the Master Servicer pursuant to Section
3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment
Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XA-1, Component XA-2, Component
XA-3,
Component XA-SB, Component XA-4, Component XA-M, Component XA-J,
Component XB,
Component XC, Component XD, Component XE, Component XF, Component
XG, Component
XH, Component XJ, Component XK, Component XL, Component XM,
Component XN,
Component XO, Component XP, Component XQ and Component XS.
"Component Mortgage Loan REMIC": A segregated pool of assets
subject
hereto and to be administered hereunder, with respect to which a
REMIC election
is to be made, consisting of: (i) the KC Component Mortgage Loan,
any related
REO Property and all payments under and proceeds of KC Component
Mortgage Loan
or related REO Property received or receivable after the Cut-off
Date (other
than payments of principal, interest and other amounts due and
payable on the KC
Component Mortgage Loan on or before the Cut-off Date), together
with all
documents, Escrow Payments and Reserve Funds delivered or caused to
be delivered
hereunder by the related Mortgage Loan Seller with respect to the
KC Component
Mortgage Loan, (ii) the rights of the Depositor under Sections 2,
3, 4, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20 and 21 of the related Mortgage Loan
Purchase and
Sale Agreement with respect to the KC Component Mortgage Loan and
(iii) such
amounts on or with respect to clause (i) as from time to time are
deposited into
the Distribution Account, the Certificate Account, the Interest
Reserve Account
and the REO Account (if established) and the Excess Liquidation
Proceeds Account
(if established), to the extent of the Trust's interest in each of
the
foregoing.
"Component Mortgage Loan REMIC Distribution Account": As defined
in
Section 3.04(c)(iii).
"Component Mortgage Loan REMIC Regular Interest": Any of the KC
Component Mortgage Loan REMIC Senior Regular Interest and the KC
Component
Mortgage Loan REMIC Subordinate Regular Interests.
"Component Mortgage Loan REMIC Residual Interest": The sole class
of
"residual interests" in the Component Mortgage Loan REMIC for
purposes of the
REMIC Provisions and evidenced by the Class R-I Certificates.
"Component 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": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-1 as of any date
of
determination.
"Component XA-2": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-2 as of any date
of
determination.
"Component XA-3": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-3 as of any date
of
determination.
"Component XA-4": One of the 23 components of the Class XW
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-J": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-J as of any date
of
determination.
"Component XA-M": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-M as of any date
of
determination.
"Component XA-SB": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-SB as of any
date of
determination.
"Component XB": One of the 23 components of the Class XW
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 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LC as of any date
of
determination.
"Component XD": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LD as of any date
of
determination.
"Component XE": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LE as of any date
of
determination.
"Component XF": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LF as of any date
of
determination.
"Component XG": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LG as of any date
of
determination.
"Component XH": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LH as of any date
of
determination.
"Component XJ": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LJ as of any date
of
determination.
"Component XK": One of the 23 components of the Class XW
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": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LL as of any date
of
determination.
"Component XM": One of the 23 components of the Class XW
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 23 components of the Class XW
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 23 components of the Class XW
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 23 components of the Class XW
Certificates 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.
"Component XQ": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LQ as of any date
of
determination.
"Component XS": One of the 23 components of the Class XW
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LS 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 loan documents or
any other
applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to KinderCare
Portfolio
Whole Loan, the KC Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest
Payment
Priority (the Class A Senior Certificates being treated as a single
Class for
this purpose) that has a then outstanding Class Principal Balance
at least equal
to 25% of the Initial Class Principal Balance thereof (or, if no
Class of
Sequential Pay Certificates has a Class Principal Balance at least
equal to 25%
of the Initial Class Principal Balance thereof, then the
"Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with
the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or
Certificate
Owner, if applicable) of a Certificate of the Controlling Class as
certified to
the Trustee from time to time by such Holder (or Certificate
Owner).
"Controlling Class Optionholder": The Purchase Option held by
the
Majority Certificateholder of the Controlling Class pursuant to
Section 3.18(c).
"Controlling Holder": With respect to (i) the 277 Park Avenue
Whole
Loan, the 277 Park Avenue Controlling Holder and (ii) the
KinderCare Portfolio
Whole Loan, the KinderCare Portfolio Controlling Holder. Each such
initial
Controlling Holder is set forth on Schedule VI hereto.
"Corporate Trust Office": The principal corporate trust office
of
the Trustee, for purposes of Certificate transfer services, at the
date of the
execution of this Agreement is located at 135 South LaSalle, Suite
1625,
Chicago, Illinois 60603, Attention: Global Securities and Trust
Services Group,
BACM 2005-6, and with respect to any successor Trustee, the
principal office
thereof as designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced 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 KC Component Mortgage Loan Subordinate Component"
and
"Corresponding Class of Class KC Certificates": The related KC
Component
Mortgage Loan Subordinate Components and Class of Class KC
Certificates set
forth below:
KC Component
Mortgage Loan
Corresponding
Subordinate Class of
Class
Component
KC
Certificates
KC-A
Class KC-A
KC-B
Class KC-B
KC-C
Class KC-C
KC-D
Class KC-D
KC-E
Class KC-E
KC-F
Class KC-F
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate
or any
Corresponding Component.
"Courtney
Oaks Apartments Loan": That certain Mortgage Loan
identified as Loan No. 59086 on the Mortgage Loan Schedule.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Loans that is
cross-defaulted and cross-collateralized with each other."
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other
Loan.
"Cure": As defined in Section 3.29(e)(i).
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section
1.03) equal
to the aggregate of, without duplication (excluding, except with
respect to
clause (6) below, any amounts received in respect of the KC
Component Mortgage
Loan):
(1) the principal portions of all Monthly Payments (other than
Balloon
Payments) and any Assumed Monthly Payments due or deemed due,
as
the case
may be, made by or on behalf of the related borrower or
advanced
in respect
of the Mortgage Loans and any REO Serviced Loans for their
respective
Due Dates occurring during the related Collection Period or any
prior Collection
Period;
(2) all Principal Prepayments received on the Mortgage Loans
during
the
related Collection Period;
(3) with respect to any Balloon Loan that is included in the
Trust
Fund, as
to which the related Stated Maturity Date occurred during or
prior to
the related Collection Period, any payment of principal
(exclusive
of any Principal Prepayment and any amount described in
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;
(4) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance
Proceeds (net of related expenses) and Condemnation Proceeds
(net of
related expenses) received on or in respect of the Mortgage
Loans
during the
related Collection Period that were identified and applied by
the Master
Servicer as recoveries of principal thereof, in each case net
of any
portion of such amounts that represents a recovery of the
principal
portion of
any Monthly Payment (other than a Balloon Payment) due, or of
the
principal portion of any Assumed Monthly Payment deemed due, in
respect of
any such Mortgage Loan on a Due Date during or prior to the
related
Collection Period and not previously recovered;
(5) 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
Serviced 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 Serviced
Loan or
the predecessor Mortgage Loan on a Due Date during or prior to
the
related
Collection Period and not previously recovered; and
(6) the KC Component Mortgage Loan Senior Component Principal
Distribution Amount.
"Custodian": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of
either of them.
"Cut-off Date": December 1, 2005 (or, with respect to Loan No.
59445
and Loan No. 14848, December 6, 2005 and December 8, 2005,
respectively).
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Loan as
of the Cut-off
Date, net of all unpaid payments of principal due in respect
thereof on or
before such date. With respect to the KC Component Mortgage Loan,
the
outstanding principal balance of the KC Component Mortgage Loan
Senior Component
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 Loan, as of
any
date of determination, and calculated without regard to any
cross
collateralization feature of such Loan, the ratio of (x) the Net
Cash Flow
(before payment of any debt service on such Loan) generated by the
related
Mortgaged Property or Mortgaged Properties during the most recently
ended period
of not more than 12 months or less than three months for which
financial
statements (whether or not audited) have been received by or on
behalf of the
Mortgage Loan Seller (prior to the Closing Date) or the Master
Servicer or the
Special Servicer (following the Closing Date), to (y) the product
of the amount
of the Monthly Payment in effect for such Loan as of such date of
determination,
multiplied by the number of months represented in the financial
statements. The
Master Servicer may, in accordance with CMSA reporting standards,
report Net
Cash Flow with respect to each Mortgaged Property where one or more
Loans are
secured by multiple Mortgaged Properties; provided, however, that
for purposes
of determining Debt Service Coverage Ratio compliance, calculations
shall be
made at the Loan level.
"Default Charges": Any Default Interest and/or late payment
charges
that are paid or payable, as the context may require, in respect of
any Loan or
REO Serviced Loan.
"Default Interest": With respect to any Loan (or successor REO
Serviced Loan), any amounts collected thereon, other than late
payment charges
or Prepayment Premiums that represent interest in excess of
interest accrued on
the principal balance of such Loan (or REO Serviced Loan) at the
related
Mortgage Rate, such excess interest arising out of a default under
such Mortgage
Loan.
"Defaulted Serviced Loan": A Serviced 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 Serviced 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 Serviced Loan
will
immediately become a Defaulted Serviced 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": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not
cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement
Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository
for purposes
of registering those Certificates that are to be Book-Entry
Certificates, is
Cede & Co. The Depository shall at all times be a "clearing
corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the
State of New
York and a "clearing agency" registered pursuant to the provisions
of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date,
the
earlier of (i) the sixth day of the month in which such
Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately
preceding
Business Day, and (ii) fourth Business Day before such Distribution
Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority
Certificateholder
of the Controlling Class, as certified by the Trustee from time to
time;
provided, however, that (i) absent such selection, or (ii) until a
Directing
Certificateholder is so selected, or (iii) upon receipt of a notice
from a
majority of the Controlling Class, by Certificate Principal
Balance, that a
Directing Certificateholder is no longer designated, the
Controlling Class
Certificateholder that owns the largest aggregate Certificate
Principal Balance
of the Controlling Class will be the Directing Certificateholder.
The initial
Directing Certificateholder is LNR Securities Holdings, 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 or the Component Mortgage
Loan REMIC
other than through an Independent Contractor; provided, however,
that the
Special Servicer (or any Sub-Servicer on behalf of the Special
Servicer) shall
not be considered to Directly Operate an REO Property solely
because the Special
Servicer (or any Sub-Servicer on behalf of the Special Servicer)
establishes
rental terms, chooses tenants, enters into or renews leases, deals
with taxes
and insurance, or makes decisions as to, or funds, repairs or
capital
expenditures with respect to such REO Property (including, without
limitation,
construction activity to effect repairs or in conjunction with
leasing
activity).
"Discount Rate" As defined in Section 4.01(c).
"Disqualified Non-U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other
than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate
in connection
with the conduct of a trade or business within the United States
and has
furnished the transferor and the Certificate Registrar with an
effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has
delivered to
both the transferor and the Certificate Registrar an opinion of a
nationally
recognized tax counsel to the effect that the transfer of the Class
R-I or Class
R-II Certificate to it is in accordance with the requirements of
the Code and
the regulations promulgated thereunder and that such transfer of
the Class R-I
or Class R-II Certificate will not be disregarded for federal
income tax
purposes.
"Disqualified Organization": Any of the following: (i) the
United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality that is a corporation if all of its activities are
subject to
tax and, except for Freddie Mac, a majority of its board of
directors is not
selected by any such governmental unit), (ii) a foreign
government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv)
rural
electric and telephone cooperatives described in Section 1381 of
the Code or (v)
any other Person so designated by the REMIC Administrator based
upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense)
that the
holding of an Ownership Interest in a Residual Certificate by such
Person may
cause the Trust or any Person having an Ownership Interest in any
Class of
Certificates, other than such Person, to incur a liability for any
federal tax
imposed under the Code that would not otherwise be imposed but for
the Transfer
of an Ownership Interest in a Residual Certificate to such Person.
The terms
"United States", "State" and "international organization" shall
have the
meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": For any Distribution Date
with
respect to any Class of REMIC II Regular Certificates and any Class
of Class KC
Certificates, the Accrued Certificate Interest in respect of such
Class of
Certificates for such Distribution Date, reduced (to not less than
zero) by that
portion, if any, of the Net Aggregate Prepayment Interest Shortfall
for such
Distribution Date allocated to such Class of Certificates as set
forth below.
Except with respect to Net Aggregate Prepayment Interest Shortfalls
allocated to
any Class of Class KC Certificates, as described below, the Net
Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date
shall be
allocated, pro rata, to each Class of REMIC II Regular Certificates
based on
Accrued Certificate Interest for each such Class of Certificates
for such
Distribution Date. The Net Aggregate Prepayment Interest Shortfall
for the KC
Component Mortgage Loan, if any, for each Distribution Date shall
be allocated,
first, to the Class KC Certificates in reverse sequential
alphabetical order, up
to an amount equal to the lesser of any such Net Aggregate
Prepayment Interest
Shortfall and any Accrued Certificate Interest in respect of the
particular
Class of Class KC Certificates for such Distribution Date; and,
thereafter, if
and to the extent that any portion of such Net Aggregate Prepayment
Interest
Shortfall remains unallocated, to the KC Component Mortgage Loan
REMIC Senior
Regular Interest and among the REMIC II Regular Certificates as
described above.
"Distributable KC Component Mortgage Loan Certificate Interest":
In
respect of the KC Component Mortgage Loan Components an amount
equal to the KC
Component Mortgage Loan Accrued Component Interest in respect of
each KC
Component Mortgage Loan Component reduced by such component's
allocable share of
any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date.
"Distribution Account": The segregated account or accounts
created
and maintained by the Trustee pursuant to Section 3.04(b) in trust
for the
Certificateholders, which shall be entitled "LaSalle Bank National
Association,
as Trustee, in trust for the registered holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-6,
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
January 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any
document
required to be part of the related Mortgage File that has not been
properly
executed, is missing, contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule (and the terms of such document have not been modified by
written
instrument contained in the related Mortgage File), or does not
appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent
global
certificates that represents the Certificates sold in reliance on
Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its
Stated
Maturity Date, the day of the month set forth in the related
Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first
due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth
in the
related Mortgage Note on which each Monthly Payment on such Loan
had been
scheduled to be first due; and (iii) any REO Serviced Loan, the day
of the month
set forth in the related Mortgage Note on which each Monthly
Payment on the
related Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution or trust company,
including, without
limitation, the Trustee (if it meets the following rating
criteria), the
long-term unsecured debt obligations of which are rated no less
than "Aa3" by
Moody's and "AA-" by S&P (or "A-" by S&P if such
depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the
deposits are to be
held in the account for more than 30 days) (or if such account is
maintained
with PNC Bank, National Association, or KeyBank National
Association rated no
less than "A1" by Moody's and with respect to S&P meets the
requirements set
forth in clause (i)), or the short-term unsecured debt obligations
of which are
rated no less than "P-1" by Moody's and "A-1" by S&P (if the
deposits are to be
held in the account for 30 days or less), in each case, at any time
funds are on
deposit therein, (ii) a segregated trust account or accounts
maintained with the
corporate trust department of a federally chartered depository
institution or
trust company, including, without limitation, the Trustee, acting
in its
fiduciary capacity and subject to the regulations regarding
fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b) that has a combined
capital surplus
of at least $50,000,000, (iii) a segregated trust account or
accounts maintained
with the corporate trust department of a state chartered depository
institution
or trust company, including, without limitation, the Trustee,
acting in its
fiduciary capacity and subject to regulations regarding fiduciary
funds on
deposit therein substantially similar to 12 C.F.R. ss.9.10(b) that
has a
combined capital surplus of at least $50,000,000, or (iv) any other
account that
would not result in the downgrade, qualification (if applicable) or
withdrawal
of the rating then assigned by either Rating Agency to any Class of
Certificates
(as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Advance, whether or not it is a
Servicing
Advance that, pursuant hereto, the Special Servicer has the option
to make or to
request the Master Servicer to make, that must be made within five
Business Days
of the Special Servicer's becoming aware that it must be made to
avoid any
material penalty, any material harm to a Mortgaged Property or any
other
material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution
conditions
and/or other environmental conditions in effect with respect to
such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade
Sequential
Pay Certificate; provided, that any such Certificate (a) will cease
to be
considered an ERISA Restricted Certificate and (b) will cease to be
subject to
the transfer restrictions contained in Section 5.02(c) if, as of
the date of a
proposed transfer of such Certificate, either (i) it is rated in
one of the four
highest generic ratings categories by a Rating Agency or (ii)
relevant
provisions of ERISA would permit transfer of such Certificate to a
Plan.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums and
similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the
Euroclear
System, or its successor in such capacity.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Loan at the Excess Interest Rate (the payment of which
interest shall,
under the terms of such Loan, be deferred until the entire
outstanding principal
balance of such ARD Loan has been paid), together with all
interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Distribution Account": The segregated account
or
sub-account of the Distribution Account created and maintained by
the Trustee
pursuant to Section 4.06, which shall be entitled "LaSalle Bank
National
Association, in trust for the registered Holders of Banc of America
Commercial
Mortgage, Inc. Commercial Mortgage Pass-Through Certificates,
Series 2005-6,
Excess Interest Distribution Account", and which must be an
Eligible Account.
The Excess Interest Distribution Account shall not be an asset of
the Component
Mortgage Loan REMIC, REMIC I or REMIC II formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment
Date.
"Excess Liquidation Proceeds": An amount equal to the excess,
if
any, of (a) the Net Liquidation Proceeds from the sale or
liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i)
the amount
needed to pay off the Loan or related REO Serviced Loan in full,
including any
related Workout-Delayed Reimbursement Amounts, (ii) all unpaid
Advances and any
unpaid Advance Interest thereon, and (iii) any related Liquidation
Fee.
"Excess Liquidation Proceeds Account": The segregated account
or
sub-account of the Distribution Account created and maintained by
the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders,
which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust
for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial
Mortgage Pass-Through Certificates, Series 2005-6, Excess
Liquidation Proceeds
Account".
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exchange Certificate": The certificate necessary to exchange
an
interest in a Regulation S Global Certificate for an interest in a
Domestic
Global Certificate, which is in the form of Exhibit P attached
hereto, or the
certificate necessary to exchange an interest in a Domestic Global
Certificate
for an interest in a Regulation S Global Certificate, which is in
the form of
Exhibit N or Exhibit O, as applicable, hereto, in each case as
described in
Section 5.02(m).
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which
any
distributions are to be made on the Certificates as contemplated by
Section
9.01.
"Final Recovery Determination": A determination made by the
Special
Servicer, in its reasonable, good faith judgment and in accordance
with the
Servicing Standard, with respect to any Mortgage Loan or REO
Property (other
than a Mortgage Loan that is paid in full and other than a Mortgage
Loan or REO
Property, as the case may be, that is repurchased or replaced by
the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
and Sale
Agreement or purchased by the Master Servicer, the Special Servicer
or any
Controlling Class Certificateholder(s) pursuant to Section 9.01),
that there has
been a recovery of all related Insurance Proceeds, Condemnation
Proceeds,
Liquidation Proceeds and other payments or recoveries that will
ultimately be
recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Fixed Prepayment Premium" As defined in Section 4.01(c).
"Freddie Mac": The Federal Home Loan Mortgage Corporation or
any
successor.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global
Certificates.
"Grace Period": As defined in Section 3.29(e)(i).
"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 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 REMIC
Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial
interest in or
any material indirect financial interest in any of the Depositor,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof as an officer, employee, promoter, 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 REMIC
Administrator or any
Affiliate thereof merely because such Person is the beneficial
owner of 1% or
less of any Class of securities issued by the Depositor, the Master
Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate
thereof, as the case may be; provided, further, that such ownership
constitutes
less than 1% of the total assets owned by such Person.
"Independent Contractor": Any Person that would be an
"independent
contractor" with respect to the Component Mortgage Loan REMIC or
REMIC I, as
applicable, within the meaning of Section 856(d)(3) of the Code if
the Component
Mortgage Loan REMIC or REMIC I were a real estate investment trust
(except that
the ownership test set forth in that section shall be considered to
be met by
(i) any Person that owns, directly or indirectly, 35 percent or
more of any
Class of Certificates, or such other interest in any Class of
Certificates as is
set forth in an Opinion of Counsel, which shall not be an expense
of the
Trustee, the REMIC Administrator or the Trust, delivered to the
Trustee and the
REMIC Administrator), so long as the Component Mortgage Loan REMIC
or REMIC I,
as applicable, does not receive or derive any income from such
Person and
provided that the relationship between such Person and the
Component Mortgage
Loan REMIC or REMIC I, as applicable, is at arm's length, all
within the meaning
of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other
Person upon
receipt by the Trustee and the REMIC Administrator of an Opinion of
Counsel,
which shall be at no expense to the Trustee, the REMIC
Administrator or the
Trust, to the effect that the taking of any action in respect of
any REO
Property by such Person, subject to any conditions therein
specified, that is
otherwise herein contemplated to be taken by an Independent
Contractor will not
cause such REO Property to cease to qualify as "foreclosure
property" within the
meaning of Section 860G(a)(8) of the Code, or cause any income
realized in
respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates and Class KC Certificates, the initial
Class
Principal Balance thereof as of the Closing Date, in each case as
set forth in
the Preliminary Statement hereto.
"Initial Class XW Notional Amount": With respect to the Class
XW
Certificates, the initial Class XW Notional Amount thereof as of
the Closing
Date equal to $2,742,147,258.
"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,
Bear,
Stearns & Co. Inc. and Barclays Capital 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 Loan or REO Property, any
hazard insurance policy, seismic (earthquake) insurance policy,
business
interruption insurance policy, flood insurance policy, title policy
or other
insurance policy that is maintained from time to time in respect of
such Loan
(or the related Mortgaged Property) or in respect of such REO
Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to
the extent such proceeds are not applied to the restoration of the
related
Mortgaged Property or REO Property or released to the Mortgagor or
any other
third party as permitted under the related loan documents, in
either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreements": The 277 Park Avenue Intercreditor
Agreement and the KinderCare Portfolio Intercreditor Agreement.
"Interest Accrual Basis": The basis on which interest accrues
in
respect of any Mortgage Loan, any Component Mortgage Loan REMIC
Regular
Interest, any REMIC I Regular Interest, or any Class of REMIC II
Regular
Certificates, consisting of one of the following: (i) a 30/360
Basis or (ii) an
Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of
Component
Mortgage Loan REMIC Regular Interests, each Class of REMIC I
Regular Interests
and each Class of REMIC II Regular Certificates for any
Distribution Date, the
calendar month immediately preceding the month in which such
Distribution Date
occurs.
"Interest Deposit Amount": $310,396.11, with respect to one
Mortgage
Loan identified on the Mortgage Loan Schedule as Loan No. 59445 and
$114,183.33,
with respect to one Mortgage Loan identified on the Mortgage Loan
Schedule as
Loan No. 14848, in each case which amount represents the amount of
interest that
would have accrued at the related Mortgage Rate on the Stated
Principal Balance
as of December 1, 2005 of such Mortgage Loan had such Mortgage Loan
been
originated on December 1, 2005, for the period from and including
December 1,
2005 to but excluding January 1, 2006.
"Interest Reserve Account": The segregated account or sub-account
of
the Certificate Account created and maintained by the Master
Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be
entitled
"Bank of America, N.A. on behalf of LaSalle Bank National
Association, as
Trustee, in trust for the registered holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-6,
Interest Reserve Account".
"Interested Person": The Depositor, each Mortgage Loan Seller,
the
Master Servicer, any Sub-Servicer, the Special Servicer, the
Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A,
Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and
Class KC Certificates.
"Investment Representation Letter": As defined in Section
5.02(b).
"IRS": The Internal Revenue Service or any successor.
"KC Component Mortgage Loan": The Mortgage Loan identified as
Loan
No. 59414 in the Mortgage Loan Schedule, which, together with the
KinderCare
Portfolio Pari Passu Note A-2 and the KinderCare Portfolio Pari
Passu Note A-3,
is secured by a Mortgage on the KinderCare Portfolio Mortgaged
Property.
"KC Component Mortgage Loan Accrued Component Interest": In
respect
of the KC Component Mortgage Loan Components for each Distribution
Date, an
amount equal to one calendar month's interest at the applicable
interest rate
for each KC Component Mortgage Loan Component which in the case of
the KC
Component Mortgage Loan Senior Component is equal to
5.23563709643111% per annum
and in the case of the KC Component Mortgage Loan KC-A Component,
the KC
Component Mortgage Loan KC-B Component, the KC Component Mortgage
Loan KC-C
Component, the KC Component Mortgage Loan KC-D Component, the KC
Component
Mortgage Loan KC-E Component, and the KC Component Mortgage Loan
KC-F Component,
respectively, is equal to the Pass-Through Rate of the Class KC-A,
Class KC-B,
Class KC-C, Class KC-D, Class KC-E, and Class KC-F Certificates,
respectively.
"KC Component Mortgage Loan Available Distribution Amount":
With
respect to the KC Component Mortgage Loan and any Distribution
Date, an amount
equal to (a) the balance on deposit in the Certificate Account as
of the close
of business on the related Determination Date relating to the KC
Component
Mortgage Loan, any P&I Advances made by the Master Servicer or
the Trustee to
cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed
due during the related Collection Period with respect to the KC
Component
Mortgage Loan, and any Compensating Interest Payments made by the
Master
Servicer to cover Prepayment Interest Shortfalls incurred during
the related
Collection Period with respect to the KC Component Mortgage Loan,
and for the
Distribution Date occurring in each March, the related Withheld
Amounts remitted
to the Component Mortgage Loan REMIC Distribution Account pursuant
to Section
4.05 with respect to the KC Component Mortgage Loan, net of (b) any
portion of
the amounts described in clause (a) of this definition that
represents one or
more of the following: (i) collected Monthly Payments with respect
to the KC
Component Mortgage Loan that are due on a Due Date following the
end of the
related Collection Period, (ii) any payments of principal
(including, without
limitation, Principal Prepayments) and interest, Liquidation
Proceeds and
Insurance Proceeds received after the end of the related Collection
Period with
respect to the KC Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any
amounts payable or reimbursable to any Person from the Component
Mortgage Loan
REMIC Distribution Account pursuant to any of clauses (ii) through
(vi) of
Section 3.05(b), (v) any amounts deposited into the Component
Mortgage Loan
REMIC Distribution Account in error, (vi) any amounts payable or
reimbursable to
any Person from the Certificate Account pursuant to clauses (ii)
through (xx) of
Section 3.05(a), and (vii) with respect to the KC Component
Mortgage Loan and
any Distribution Date relating to the one-month period preceding
the
Distribution Date in each February (and in any January of a year
that is not a
leap year), an amount equal to the related Withheld Amount pursuant
to Section
4.05; and (c) provided that the KC Component Mortgage Loan
Available
Distribution Amount for the Final Distribution Date shall be
calculated without
regard to clauses (b)(i) and (b)(ii) of this definition.
"KC Component Mortgage Loan Component": Each of the KC
Component
Mortgage Loan Senior Component, the KC Component Mortgage Loan KC-A
Component,
the KC Component Mortgage Loan KC-B Component, the KC Component
Mortgage Loan
KC-C Component, the KC Component Mortgage Loan KC-D Component, the
KC Component
Mortgage Loan KC-E Component, and the KC Component Mortgage Loan
KC-F Component.
"KC Component Mortgage Loan Component Principal Entitlement": In
the
absence of a monetary event of default or other material event of
default under
the KC Component Mortgage Loan, principal will be paid on the KC
Component
Mortgage Loan Senior Component and the KC Component Mortgage Loan
KC-A
Component, the KC Component Mortgage Loan KC-B Component, the KC
Component
Mortgage Loan KC-C Component, the KC Component Mortgage Loan KC-D
Component, the
KC Component Mortgage Loan KC-E Component, and the KC Component
Mortgage Loan
KC-F Component, pro rata (in accordance with their respective
outstanding
principal balances). If any of the events of default described in
the prior
sentence exists with respect to the KC Component Mortgage Loan,
principal will
be paid first to the KC Component Mortgage Loan Senior Component
until its
outstanding principal balance is reduced to zero, and then
sequentially to each
of the KC Component Mortgage Loan KC-A Component, the KC Component
Mortgage Loan
KC-B Component, the KC Component Mortgage Loan KC-C Component, the
KC Component
Mortgage Loan KC-D Component, the KC Component Mortgage Loan KC-E
Component, and
the KC Component Mortgage Loan KC-F Component until the principal
balance of
each such Component is reduced to zero. Accordingly, the "KC
Component Mortgage
Loan Component Principal Entitlement" with respect to any KC
Component is (a)
prior to the occurrence of any event of monetary default or other
material event
of default under the KC Component Mortgage Loan, an amount equal to
such KC
Component's pro rata share of the KC Component Mortgage Loan
Principal
Distribution Amount and (b) after the occurrence of any event of
monetary
default or other material event of default under the KC Component
Mortgage Loan,
an amount equal to the lesser of (i) the outstanding principal
balance of such
KC Component and (ii) the portion of the Class KC Component
Mortgage Loan
Principal Distribution Amount remaining after giving effect to all
distributions
of higher priority on such Distribution Date.
"KC Component Mortgage Loan Current Principal Distribution
Amount":
For any Distribution Date will, in general, equal the aggregate of
the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed
due, as the
case may be, made by or on behalf of the related borrower or
advanced, as the
case may be, in respect of the KC Component Mortgage Loan for the
related Due
Date occurring during the related Collection Period;
(ii) all Principal Prepayments received on the KC Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the KC Component Mortgage Loan if its
Stated Maturity Date occurred during or prior to the related
Collection Period,
any payment of principal (exclusive of any Principal Prepayment and
any amount
described in clause (iv) below) that was made by or on behalf of
the related
Mortgagor during the related Collection Period, net of any portion
of such
payment that represents a recovery of the principal portion of any
Monthly
Payment (other than a Balloon Payment) due, or the principal
portion of any
Assumed Monthly Payment deemed due, in respect of the KC Component
Mortgage Loan
on a Due Date during or prior to the related Collection Period and
not
previously recovered; and
(iv) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds, Condemnation Proceeds and REO Revenues received
on or in
respect of the KC Component Mortgage Loan during the related
Collection Period
that were identified and applied by the Master Servicer as
recoveries of
principal thereof, in each case net of any portion of such amounts
that
represents a recovery of the principal portion of any Monthly
Payment (other
than a Balloon Payment) due, or the principal portion of any
Assumed Monthly
Payment deemed due, in respect of the KC Component Mortgage Loan on
a Due Date
during or prior to the related Collection Period and not previously
recovered.
"KC Component Mortgage Loan KC-A Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-A
Certificates.
"KC Component Mortgage Loan KC-B Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-B
Certificates.
"KC Component Mortgage Loan KC-C Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-C
Certificates.
"KC Component Mortgage Loan KC-D Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-D
Certificates.
"KC Component Mortgage Loan KC-E Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-E
Certificates.
"KC Component Mortgage Loan KC-F Component": One of the seven
KC
Component Mortgage Loan Components and that corresponds to the
Class KC-F
Certificates.
"KC Component Mortgage Loan Principal Distribution Amount":
With
respect to any Distribution Date, the aggregate of the KC Component
Mortgage
Loan Current Principal Distribution Amount for such Distribution
Date and, if
such Distribution Date is subsequent to the initial Distribution
Date, the
excess, if any, of the KC Component Mortgage Loan Current Principal
Distribution
Amount for the preceding Distribution Date, over the aggregate
distributions of
principal made on the KC Component Mortgage Loan Senior Component
and the Class
KC Certificates on the preceding Distribution Date.
"KC Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial ownership interest in the
Component
Mortgage Loan REMIC issued hereunder and designated as a "regular
interest" in
the Component Mortgage Loan REMIC, as set forth in the Preliminary
Statement
hereto.
"KC Component Mortgage Loan REMIC Subordinate Regular
Interests":
The Class KC-A, Class KC-B, Class KC-C, Class KC-D, Class KC-E and
Class KC-F
Certificates.
"KC Component Mortgage Loan Senior Balance": With respect to
the KC Component Mortgage Loan Senior Component, the principal
balance of the KC
Component Mortgage Loan Senior Component outstanding from time to
time which, as
of the Closing Date is equal to the amount set forth in the
Preliminary
Statement. On each Distribution Date, the KC Component Mortgage
Loan Senior
Balance shall be reduced by the amount of any distributions of
principal
allocated to KC Component Mortgage Loan REMIC Senior Regular
Interest on such
Distribution Date pursuant to Section 4.01(j)(ii) or 9.01, as
applicable, and
shall be further reduced by the amount of any Realized Losses and
Additional
Trust Fund Expenses incurred with respect to the KC Component
Mortgage Loan
allocated to any Class of Sequential Pay Certificates on such
Distribution Date
pursuant to Section 4.04. Distributions in respect of a
reimbursement of
Realized Losses and Additional Trust Fund Expenses in respect of
the KC
Component Mortgage Loan previously allocated to any Class of
Sequential Pay
Certificates shall not constitute distributions of principal and
shall not
result in reduction of the KC Component Mortgage Loan Senior
Balance.
"KC Component Mortgage Loan Senior Component": One of the seven
KC
Component Mortgage Loan Components, represented by the KC Component
Mortgage
Loan REMIC Senior Regular Interest.
"KC Component Mortgage Loan Senior Component Principal
Distribution
Amount": As defined in Section 4.01(j)(ii).
"KC Component Mortgage Loan Subordinate Balance": With respect
to
each KC Component Mortgage Loan Subordinate Component, the
aggregate principal
amount of KC Component Mortgage Loan Subordinate Components
outstanding from
time to time which, on any date, shall equal the Class Principal
Balance of the
Corresponding Class KC Certificates on such date. On each
Distribution Date,
such KC Component Mortgage Loan Subordinate Balance shall be
reduced by the
amount of any distributions of principal allocated to the
Corresponding Class KC
Certificates on such Distribution Date pursuant to Section
4.01(j)(v), (viii),
(xi), (xiv), (xvii), or 9.01, as applicable, and shall be further
reduced by the
amount of any Realized Losses and Additional Trust Fund Expenses
incurred with
respect to the KC Component Mortgage Loan allocated to the
Corresponding Class
of Class KC Certificates on such Distribution Date pursuant to
Section 4.04(a).
"KC Component Mortgage Loan Subordinate Component": Any of the
undivided subordinate ownership interests in the Component Mortgage
Loan REMIC,
represented by each of the Class KC-A, Class KC-B, Class KC-C,
Class KC-D, Class
KC-E and Class KC-F Certificates.
"KC Control Appraisal Period": If the outstanding aggregate
principal balance of all of the KC Component Mortgage Loan
Subordinate
Components of the KC Component Mortgage Loan (net of any Appraisal
Reduction
Amounts, principal payments, Realized Losses and unreimbursed
Additional Trust
Fund Expenses) is less than 25% of its original principal
balance.
"KC Controlling Class": As of any date of determination, the
outstanding Class of Class KC Certificates with the lowest payment
priority that
has a then outstanding Certificate Balance (net of Appraisal
Reduction Amounts
allocable to such Class) at least equal to 25% of its initial
Certificate
Balance. The KC Controlling Class as of the Delivery Date will be
the Class KC-F
Certificates.
"KC Controlling Class Holder": As defined in Section 3.29.
"KC Controlling Holder": With respect to any date of
determination
(a) prior to the occurrence of a KC Control Appraisal Period, the
KC Controlling
Class Holder and (b) during the occurrence and the continuance of a
KC Control
Appraisal Period, the Directing Certificateholder.
"KinderCare Portfolio Intercreditor Agreement": With respect to
the
KinderCare Portfolio Whole Loan, the Intercreditor and Servicing
Agreement,
dated as of December 1, 2005, by and between the holder of the KC
Component
Mortgage Loan, the KinderCare Portfolio Pari Passu Note A-2
Noteholder and the
KinderCare Portfolio Pari Passu Note A-3 Noteholder relating to the
relative
rights of such holders, as the same may be further amended from
time to time in
accordance with the terms thereof.
"KinderCare Portfolio Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of December 1, 2005 by
and between
Bank of America, N.A. as "Senior Lender" and the KinderCare
Portfolio Mezzanine
Loan Holder as "Mezzanine Lender".
"KinderCare Portfolio Mezzanine Loan": That certain mezzanine
loan
related to the KC Component Mortgage Loan, which is evidenced by
that certain
Mezzanine Loan Agreement, dated as of November 9, 2005 by and
between Bank of
America, N.A. and the KinderCare Portfolio Mezzanine Loan
Borrower.
"KinderCare Portfolio Mezzanine Loan Borrower": KC Mezco I LLC,
a
Delaware limited liability company.
"KinderCare Portfolio Mezzanine Loan Holder": Bank of America,
N.A.
"KinderCare Portfolio Mortgaged Property": With respect to the
corresponding KinderCare Portfolio Whole Loan, the property that
secures such
KinderCare Portfolio Whole Loan.
"KinderCare Portfolio Non-Securitized Note": On any date of
determination that any KinderCare Portfolio Note is not included in
a
securitization or a collateralized debt obligation in which
interests in such
KinderCare Portfolio Note are issued or created. On the date
hereof, each of the
KinderCare Portfolio Pari Passu Note A-2 and the KinderCare
Portfolio Pari Passu
Note A-3 is a KinderCare Portfolio Non-Securitized Note.
"KinderCare Portfolio Note": With respect to the KinderCare
Portfolio Whole Loan, individually, any of the KinderCare Portfolio
Pari Passu
Note A-1, the KinderCare Portfolio Pari Passu Note A-2 and the
KinderCare
Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Noteholders": With respect to the
KinderCare
Portfolio Whole Loan, collectively, the holder of the Mortgage Note
for the KC
Component Mortgage Loan, the KinderCare Portfolio Pari Passu Note
A-2 Companion
Loan Noteholder and the KinderCare Portfolio Pari Passu Note A-3
Companion Loan
Noteholder.
"KinderCare Portfolio Notes": With respect to the KinderCare
Portfolio Whole Loan, collectively, the KinderCare Portfolio Pari
Passu Note
A-1, the KinderCare Portfolio Pari Passu Note A-2 and the
KinderCare Portfolio
Pari Passu Note A-3.
"KinderCare Portfolio Pari Passu Note A-1": With respect to the
KC
Component Mortgage Loan, the related Mortgage Note that is included
in the Trust
Fund.
"KinderCare Portfolio Pari Passu Note A-2": With respect to the
KinderCare Portfolio Whole Loan, the related Mortgage Note
identified as "Note
A-2" in the KinderCare Portfolio Intercreditor Agreement, which
Note is not
included in the Trust and which Note is pari passu in right of
payment to the
KinderCare Portfolio Pari Passu Note A-1 and the KinderCare
Portfolio Pari Passu
Note A-3.
"KinderCare Portfolio Pari Passu Note A-2 Companion Loan": The
loan
evidenced by the KinderCare Portfolio Pari Passu Note A-2.
"KinderCare Portfolio Pari Passu Note A-2 Companion Loan
Noteholder": The KinderCare Portfolio Pari Passu Note A-2
Noteholder.
"KinderCare Portfolio Pari Passu Note A-2 Companion Loan
Securities": For so long as the KinderCare Portfolio Pari Passu
Note A-1 or a
successor REO Loan with respect to the KinderCare Portfolio Pari
Passu Note A-1,
is part of the Mortgage Pool, any class of securities backed by the
KinderCare
Portfolio Pari Passu Note A-2.
"KinderCare Portfolio Pari Passu Note A-2 Noteholder": The holder
of
the KinderCare Portfolio Pari Passu Note A-2.
"KinderCare Portfolio Pari Passu Note A-3": With respect to the
KinderCare Portfolio Whole Loan, the related Mortgage Note
identified as "Note
A-3" in the KinderCare Portfolio Intercreditor Agreement, which
Note is not
included in the Trust and which Note is pari passu in right of
payment to the
KinderCare Portfolio Pari Passu Note A-1 and the KinderCare
Portfolio Pari Passu
Note A-2.
"KinderCare Portfolio Pari Passu Note A-3 Companion Loan": The
loan
evidenced by the KinderCare Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Pari Passu Note A-3 Companion Loan
Noteholder": The KinderCare Portfolio Pari Passu Note A-3
Noteholder.
"KinderCare Portfolio Pari Passu Note A-3 Companion Loan
Securities": For so long as the KinderCare Portfolio Pari Passu
Note A-1 or a
successor REO Loan with respect to the KinderCare Portfolio Pari
Passu Note A-1,
is part of the Mortgage Pool, any class of securities backed by the
KinderCare
Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Pari Passu Note A-3 Noteholder": The holder
of
the KinderCare Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Purchase Option Holder": The meaning
assigned
to "Purchase Option Holder" in the KinderCare Portfolio
Intercreditor Agreement.
"KinderCare Portfolio Securitized Note": As defined in Section
4.03(f).
"KinderCare Portfolio Whole Loan": With respect to KC Component
Mortgage Loan, such Mortgage Loan together with the KinderCare
Portfolio Pari
Passu Note A-2 and the KinderCare Portfolio Pari Passu Note A-3.
References
herein to the KinderCare Portfolio Whole Loan shall be construed to
refer to the
aggregate indebtedness under the KinderCare Portfolio Pari Passu
Note A-1,
KinderCare Portfolio Pari Passu Note A-2 and the KinderCare
Portfolio Pari Passu
Note A-3.
"Late Collections": With respect to any Serviced 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 Serviced 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 Serviced 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 Serviced Loan or of an Assumed Monthly
Payment in respect
of such REO Serviced Loan due or deemed due, as the case may be,
for a Due Date
in a previous Collection Period and not previously received or
recovered.
"Letter of Credit": With respect to any Loan, any third-party
letter
of credit delivered by or at the direction of the Mortgagor
pursuant to the
terms of such Loan in lieu of the establishment of, or deposit
otherwise
required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Loan, any of the
following
events: (i) such Loan is paid in full; (ii) a Final Recovery
Determination is
made with respect to such Loan; (iii) such Loan (or related REO
Serviced Loan)
is repurchased by the Mortgage Loan Seller pursuant to Section 4 of
the Mortgage
Loan Purchase Agreement; (iv) such Loan is purchased by the
Directing
Certificateholder, the Special Servicer, any Controlling Holder (if
the related
Defaulted Serviced Loan is the Mortgage Loan included in the
related Whole Loan)
or an assignee of such Person pursuant to Section 3.18(c) or the
related
Mezzanine Loan Holder (if the related Defaulted Serviced Loan has a
related
Mezzanine Loan) pursuant to any Mezzanine Intercreditor Agreement;
(v) such Loan
is purchased by the Special Servicer or the Master Servicer
pursuant to Section
9.01(b); or (vi) in the case of a Whole Loan, such Whole Loan is
purchased by
the Whole Loan Purchase Option Holder or its designee pursuant to
the related
Intercreditor Agreement. With respect to any REO Property (and the
related REO
Serviced Loan), any of the following events: (i) a Final Recovery
Determination
is made with respect to such REO Property or (ii) such REO Property
is purchased
by the Master Servicer or the Special Servicer pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise
covered by
Servicing Advances) in connection with the liquidation of any
Specially Serviced
Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including,
without limitation, legal fees and expenses, committee or referee
fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan
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 Serviced Loan by
the Majority
Certificateholder of the Controlling Class, the KC Controlling
Holder (if the
Defaulted Serviced Loan is the KinderCare Portfolio Whole Loan), by
the related
Whole Loan Purchase Option Holder pursuant to the related
Intercreditor
Agreement or the related Mezzanine Loan holder (if the related
Defaulted
Serviced Loan has a related Mezzanine Loan) pursuant to the related
Mezzanine
Intercreditor Agreement or pursuant to any applicable purchase
right set forth
in Section 3.18(c) or (m); provided any such purchase occurs within
90 days of
such Person's option first becoming exercisable, (b) with respect
to a purchase
of a related Defaulted Serviced Loan at its fair value as
determined in Section
3.18, provided any such purchase occurs within 90 days from the
date that the
Special Servicer initially determined the fair value of the related
Serviced
Loan, (c) the purchase option of the Majority Certificateholder of
the
Controlling Class, the Master Servicer or the Special Servicer
pursuant to
Section 9.01 or (d) the repurchase by the related Mortgage Loan
Seller of a
Mortgage Loan so required to be repurchased by it pursuant to
Section 4 of the
related Mortgage Loan Purchase and Sale Agreement and Section 2.03
not later
than 180 days after it has been notified pursuant to of its
obligation to so
repurchase under Section 2.03 and Section 4 of the Mortgage Loan
Purchase and
Sale Agreement.
"Liquidation Fee Rate": With respect to each Specially Serviced
Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100
basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the
Master
Servicer or the Special Servicer in connection with: (i) the
liquidation of a
Mortgaged Property or other collateral constituting security for a
Defaulted
Serviced Loan, through trustee's sale, foreclosure sale, REO
Disposition or
otherwise, exclusive of any portion thereof required to be released
to the
related Mortgagor in accordance with applicable law and/or the
terms and
conditions of the related loan documents; (ii) the realization upon
any
deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a
Defaulted Serviced Loan pursuant to Section 3.18(c), by the Special
Servicer
pursuant to Section 3.18(d), by any Whole Loan Purchase Option
Holder pursuant
to the related Intercreditor Agreement, by the KC Controlling
Holder pursuant to
Section 3.18(l) or by the related Mezzanine Loan Holder pursuant to
the related
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); and (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).
"Litigation Control": As defined in Section 2.03(i).
"Loan": Any Mortgage Loan or any Companion Loan.
"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 loan
documents to
receive revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class
or
Classes of Certificates, as of any date of determination, any
Holder or
particular group of Holders of Certificates of such Class or
Classes, as the
case may be, entitled to a majority of the Voting Rights allocated
to such Class
or Classes, as the case may be.
"Majority Mortgage Loan": All of the Mortgage Loans other than
the
KC Component Mortgage Loan.
"Master Servicer": Bank of America, N.A., its successor in
interest
or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the
Certificate Account as of the commencement of business on such
Master Servicer
Remittance Date, net of (b) any portion of the amounts described in
clause (a)
of this definition that represents one or more of the following:
(i) collected
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any unscheduled payments of principal
(including,
without limitation, Principal Prepayments, and interest,
Liquidation Proceeds
and Insurance Proceeds) received after the end of the related
Collection Period,
(iii) any Prepayment Premiums received after the end of the related
Collection
Period, (iv) any amounts payable or reimbursable to any Person from
the
Certificate Account pursuant to any of clauses (ii) through (xix)
of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts
deposited into
the Certificate Account in error, and (vii) with respect to each
Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution
Date relating
to the one-month period preceding the Distribution Date in each
February (and in
any January of a year that is not a leap year), an amount equal to
the related
Withheld Amount pursuant to Section 4.05; provided that, with
respect to the
Master Servicer Remittance Date that occurs in the same calendar
month as the
Final Distribution Date, the Master Servicer Remittance Amount will
be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this
definition; provided, further, that in no event shall any amounts
be included in
the Master Servicer Remittance Amount to the extent that it is
payable to any
Subordinate Interest Holder pursuant to the related Intercreditor
Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO
Serviced
Loan, the fee payable to the Master Servicer pursuant to Section
3.11(a) and
from which any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage
Loan
and any related REO Serviced Loan, the Administrative Fee Rate
specified for
each such Mortgage Loan on the Mortgage Loan Schedule minus the
Trustee Fee
Rate; (b) with respect to the 277 Park Avenue Companion Loan and
any related REO
Serviced Loan, the Master Servicing Fee Rate shall be the same as
the Master
Servicing Fee Rate for the 277 Park Avenue Pari Passu Note A-1
Mortgage Loan;
and (c) with respect to the KinderCare Portfolio Companion Loans
and any related
REO Serviced Loan, the Master Servicing Fee Rate shall be the same
as the Master
Servicing Fee Rate for the KinderCare Portfolio Pari Passu Note A-1
Mortgage
Loan.
"Material Breach": A Breach that materially and adversely
affects
the interests of the Certificateholders, or any of them, with
respect to the
affected Mortgage Loan, including but not limited to a material and
adverse
effect on any of the distributions payable with respect to any of
the
Certificates or on the value of such Certificates or such Mortgage
Loan.
"Material Document Defect": A Document Defect that materially
and
adversely affects the interests of the Certificateholders, or any
of them, with
respect to the affected Mortgage Loan, including but not limited to
a material
and adverse effect on any of the distributions payable with respect
to any of
the Certificates or on the value of such Certificates or such
Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to the 277
Park
Avenue Mezzanine Loan, the KinderCare Portfolio Mezzanine Loan and
the Shaw's
Supermarket Mezzanine Loan, the 277 Park Avenue Mezzanine
Intercreditor
Agreement, the KinderCare Portfolio Mezzanine Intercreditor
Agreement and the
Shaw's Supermarket Mezzanine Intercreditor Agreement, respectively,
and, with
respect to any Mortgage Loan with permitted future mezzanine
indebtedness, the
mezzanine intercreditor agreement related to such future mezzanine
loan.
"Mezzanine
Loan": Collectively, the 277 Park Avenue Mezzanine Loan,
the KinderCare Portfolio Mezzanine Loan, the Shaw's Supermarket
Mezzanine Loan
and, with respect to any Loan with permitted future mezzanine
indebtedness, such
future mezzanine loan.
"Mezzanine Loan Holder": With respect to the 277 Park Avenue
Mezzanine Loan, the KinderCare Portfolio Mezzanine Loan and the
Shaw's
Supermarket Mezzanine Loan, the 277 Park Avenue Mezzanine Loan
Holder, the
KinderCare Portfolio Mezzanine Loan Holder and the Shaw's
Supermarket Mezzanine
Loan Holder, respectively, and, with respect to any Mortgage Loan
with permitted
future mezzanine indebtedness, the mezzanine lender under such
future mezzanine
loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by
the Special
Servicer pursuant to Section 3.20 in a manner that:
(1) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing current
Monthly
Payments with respect to such Serviced Loan);
(2) except as expressly contemplated by the related loan
documents,
results in
a release of the lien of the Mortgage on any material portion
of the
related Mortgaged Property without a corresponding Principal
Prepayment
in an amount or the delivery of substitute real property
collateral
with a fair market value (as is) that is not less than the fair
market
value (as is), as determined by an Appraisal delivered to the
Special
Servicer (at the expense of the related Mortgagor and upon
which
the
Special Servicer may conclusively rely), of the property to be
released;
or
(3) in the good faith and reasonable judgment of the Special
Servicer,
otherwise materially impairs the security for such Serviced
Loan
or reduces
the likelihood of timely payment of amounts due thereon.
"Monetary Default": As defined in Section 3.29(e)(i).
"Monetary Default Cure Period": As defined in Section
3.29(e)(i).
"Monthly Payment": With respect to any Loan, for any Due Date as
of
which such Loan is outstanding, the scheduled monthly payment (or,
in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum
required
monthly payment, exclusive of any Excess Interest and any excess
cash flow) of
principal and/or interest on such Loan, including, without
limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from
time to time
under the terms of the related Mortgage Note (as such terms may be
changed or
modified in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20
and applicable law); provided that the Monthly Payment due in
respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess
Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in
existence, "Moody's"
shall be deemed to refer to such other nationally recognized
statistical rating
agency or other comparable Person designated by the Depositor,
notice of which
designation shall be given to the Trustee, the Master Servicer, the
Special
Servicer and the REMIC Administrator, and specific ratings of
Moody's herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of
trust and/or
other similar document or instrument securing the related Mortgage
Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either on
the
face
thereof or pursuant to a separate allonge) "Pay to the order of
LaSalle
Bank National Association, as Trustee for the registered
holders
of Banc of
America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-6, without recourse" or in
blank,
and
further showing a complete, unbroken chain of endorsement from
the
originator
(if such originator is other than the related Mortgage Loan
Seller);
or alternatively, if the original executed Mortgage Note has
been
lost, a
lost note affidavit and indemnity from the applicable Mortgage
Loan
Seller with a copy of such Mortgage Note; and (B) in the case of
each
Companion
Loan, a copy of the executed Mortgage Note for such Companion
Loan;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this
definition, in each case (unless the particular item has not been
returned
from the
applicable recording office) with evidence of recording
indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage) and of any
intervening
assignments thereof that precede the assignment referred to in
clause (v)
of this
definition, in each case (unless the particular item has not
been
returned
from the applicable recording office) with evidence of
recording
indicated
thereon;
(iv) subject to the provisos at the end of this paragraph, an
original
executed assignment of the Mortgage, in favor of "LaSalle Bank
National
Association, as Trustee for the registered holders of Banc of
America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-6" or in blank, in recordable form
(except for
any
missing recording information with respect to such Mortgage) and
in
the case
of each Whole Loan, also to LaSalle Bank National Association
in
its
capacity as "lead lender" on behalf of the holders of the
related
Companion
Loan(s); provided that, if the related Mortgage has not been
returned
from the applicable public recording office, such assignment of
Mortgage
may exclude the information to be provided by the recording
office;
and provided, further, if the related Mortgage has been
recorded
in the
name of Mortgage Electronic Registration Systems, Inc. ("MERS")
or
its
designee, no assignment of Mortgage in favor of the Trustee will
be
required
to be prepared or delivered and instead, the Master Servicer
shall take
all actions as are necessary to cause the Trustee to be shown
as, and
the Trustee shall take all actions necessary to confirm that it
is
shown as,
the owner of the related Mortgage on the records of MERS for
purposes
of the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(v) an original executed assignment of any related Assignment
of
Leases (if
such item is a document separate from the Mortgage), in favor
of
"LaSalle Bank National Association, as Trustee for the
registered
holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-6" or in blank, in
recordable form
(except
for any missing recording information with respect to such
Assignment of Leases)
and in the case of each Whole Loan, also to LaSalle
Bank
National Association in its capacity as "lead lender" or on behalf
of
the
holders of the related Companion Loan(s); provided that if the
related
Mortgage
has been recorded in the name of MERS or its designee, no
assignment
of Assignment of Leases in favor of the Trustee will be
required
to be prepared or delivered and instead, the Master Servicer
shall take
all actions as are necessary to cause the Trustee to be shown
as, and
the Trustee shall take all actions necessary to confirm that it
is
shown as,
the owner of the related Mortgage on the records of MERS for
purposes
of the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(vi) originals or copies of any written assumption,
modification,
written
assurance and substitution agreements in those instances where
the
terms or
provisions of the Mortgage or Mortgage Note have been modified
or
the
Mortgage Loan has been assumed, in each case (unless the
particular
item has
not been returned from the applicable recording office) with
evidence
of recording indicated thereon if the instrument being modified
or assumed
is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance
or, if such policy has not yet been issued, a "marked-up" pro
forma
title policy or commitment for title insurance marked as binding
and
countersigned by the issuer or its authorized agent either on its
face or
by an
acknowledged closing instruction or escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor
of the
originator of such Mortgage Loan or in favor of any assignee
prior
to the
Trustee (but only to the extent the 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
2005-6 or
in blank, in a form that is complete and suitable for filing or
recording,
and sufficient to assign to the Trustee the security interest
held by
the originator of the Mortgage Loan or its assignee; provided,
if
the
related Mortgage Loan has been recorded in the name of MERS or
its
designee,
no UCC Financing Statement in favor of the Trustee will be
required
to be prepared or delivered and instead, the Master Servicer
shall take
all actions as are necessary to cause the Trustee, on behalf of
the
Certificateholders, to be shown as, and the Trustee shall take
all
actions
necessary to confirm that it is shown as, the owner of the
related
Mortgage
on the records of MERS for purposes of the system of recording
transfers
of beneficial ownership of mortgages maintained by MERS;
(ix) the original or a copy of any environmental indemnity
agreement
relating
solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan
agreement,
Ground Lease and/or Ground Lease estoppels relating to such
Mortgage
Loan;
(xi) any original documents (including any security
agreement(s))
relating
to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening
assignments
thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender
agreement, agreement among noteholders or similar agreement
relating
to such Mortgage Loan and a copy of any Letter of Credit;
(xiii) with respect to any Companion Loan, a copy of each
related
Companion
Loan note;
(xiv) with respect to hospitality properties, a copy of the
franchise
agreement, an original copy of the comfort letter and any
transfer
documents with respect to such comfort letter, if any; and
(xv) a list attached to each Mortgage File indicating the
documents
to be
included in each such Mortgage File (the "Mortgage Loan
Checklist")
which list
may be modified within 180 days by the related Mortgage Loan
Seller
after the Closing Date to correct any errors in accordance with
Section
2.02(e);
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf
such term shall
not be deemed to include such documents and instruments required to
be included
therein unless they are actually so received; provided, further,
however, that
on the Closing Date, with respect to item (iv), the Depositor has
delivered to
the Trustee a copy of such assignment of Mortgage in blank and has
caused the
Master Servicer to retain the completed assignment of Mortgage for
recording as
described below, unless such Mortgage has been recorded in the name
of MERS or
its designee.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and from time to time held
in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage
Note, Mortgage and other security documents contained in the
related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of
Mortgage
File.
"Mortgage Loan Purchase and Sale Agreements": The Mortgage Loan
Purchase and Sale Agreement, dated as of December 29, 2005, between
Bank of
America and the Depositor, the Mortgage Loan Purchase and Sale
Agreement, dated
as of December 29, 2005, between BSCMI and the Depositor, and the
Mortgage Loan
Purchase and Sale Agreement, dated as of December 29, 2005, between
Barclays and
the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of the Trust Fund, which
list is
attached hereto as Schedule I and may be amended from time to time
in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth,
among other
things, the following information with respect to each Mortgage
Loan:
(i) the loan number, the control number and the trust mortgage
loan
identification number;
(ii) the street address or addresses (including city, state and
zip
code) of
the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date and
(b)
whether
the Mortgage Loan accrues interest on the basis of the actual
number of
days elapsed in the relevant month of accrual and a 360-day
year
(an
"Actual/360 Basis") or on the basis of a 360-day year consisting
of
twelve
30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity
Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date
following
the Cut-off Date;
(ix) the
Administrative Fee Rate (inclusive of the Master Servicer
Fee Rate,
the Trustee Fee Rate, and the Primary Servicing Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related Mortgaged
Property
is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage
Loan and,
if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) whether the Mortgage Loan is an ARD Loan; and (xvi) the
applicable
grace period.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form
of more than
one list, collectively setting forth all of the information
required.
"Mortgage Loan Sellers": Bank of America (and its successors
and
assigns), Barclays (and its successors and assigns) and BSCMI (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 Serviced Loans. The Mortgage Pool does not include
the 277 Park
Avenue Companion Loan, the KinderCare Portfolio Companion Loans or
any related
REO Serviced Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to
its
Stated Maturity Date, the annualized rate at which interest is
scheduled (in the
absence of a default) to accrue on such Loan from time to time in
accordance
with the terms of the related Mortgage Note (as such may be
modified at any time
following the Closing Date) and applicable law, (ii) any Loan after
its Stated
Maturity Date, the annualized rate described in clause (i) above
determined
without regard to the passage of such Stated Maturity Date, and
(iii) any REO
Serviced Loan, the annualized rate described in clause (i) or (ii)
above, as
applicable, determined as if the related Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the
context
may require, each real property (together with all improvements and
fixtures
thereon) subject to the lien of a Mortgage and constituting
collateral for a
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 Serviced Loan or REO
Serviced 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(i).
"Net Modification Application Fee": As defined in Section
3.20(i).
"Net Mortgage Rate": With respect to any Majority Mortgage Loan,
the
KC Component Mortgage Loan Senior Component, or any REO Serviced
Loan, as of any
date of determination, a rate per annum equal to the related
Mortgage Rate then
in effect, or in the case of the KC Component Mortgage Loan Senior
Component, a
per annum rate equal to 5.23563709643111%, in each case minus the
related
Administrative Fee Rate, if applicable. With respect to any
Companion Loan or
successor REO Loan as of any date of determination a per annum rate
equal to the
Mortgage Rate then in effect minus the related Administrative Fee
Rate. With
respect to each of the KC Component Mortgage Loan Subordinate
Components, the
Net Mortgage Rate set forth for such Subordinate Component in the
table below.
For purposes of calculating the Pass-Through Rate for each Class of
Certificates
(other than the Class V Certificates and the Residual Certificates)
from time to
time, the Net Mortgage Rate for any Mortgage Loan will be
calculated without
regard to any modification, waiver or amendment of the terms of
such Mortgage
Loan subsequent to the Closing Date.
KC Component Mortgage
Loan REMIC
Subordinate Component
Net Mortgage Rate
---------------------------------------
------------------------------
KC-A
5.270%
KC-B
5.318%
KC-C
5.461%
KC-D
5.938%
KC-E
6.129%
KC-F
6.700%
"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 (and any related
Companion Loan
Holder, to the extent of its interest), including any lease
renewed, modified or
extended on behalf of the Trust, if the Trust has the right to
renegotiate the
terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class
L,
Class M, Class N, Class O, Class P, Class Q and Class S
Certificates.
"Non-Monetary Default": As defined in Section 3.29(e)(iv).
"Non-Monetary Default Cure Period": As defined in Section
3.29(e)(iv).
"Non-Partitioned Loans": Each Mortgage Loan, other than the 277
Park
Avenue Pari Passu Note A-1 Mortgage Loan and the KinderCare
Portfolio Pari Passu
Note A-1 Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class XW, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O, Class P, Class Q, Class S, Class KC-A, Class
KC-B, Class
KC-C, Class KC-D, Class KC-E, Class KC-F, Class V, Class R-I and
Class R-II
Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section
4.03(c), any
P&I Advance previously made or to be made in respect of any
Serviced Loan or any
REO Serviced 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 Serviced Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance made
or
proposed to be made in respect of a Serviced Loan or REO Property
that, as
determined by the Master Servicer or, if applicable, the Special
Servicer or the
Trustee in reasonable and good faith judgment, will not be
recoverable (together
with Advance Interest accrued thereon), or that in fact was not
ultimately
recovered, from Default Charges, Insurance Proceeds, Liquidation
Proceeds or any
other recovery on or in respect of such Serviced Loan or REO
Property (without
giving effect to potential recoveries on deficiency judgments or
recoveries from
guarantors); provided, however, that the Special Servicer may, at
its option,
make a determination in accordance with the Servicing Standard and
Section
3.11(h), that any Servicing Advance previously made or proposed to
be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and
the Trustee notice of such determination and any such determination
shall be
conclusive and binding on the Master Servicer and the Trustee.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, a Responsible
Officer of the
Trustee or any authorized officer of a Mortgage Loan Seller, as the
case may be.
"Opinion of Counsel": A written opinion of counsel (who must,
in
connection with any opinion rendered pursuant hereto with respect
to tax matters
or a resignation under Section 6.04, be Independent counsel, but
who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC
Administrator,
the Master Servicer or the Special Servicer), which written opinion
is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Serviced Loan,
any
advance made by the Master Servicer or the Trustee pursuant to
Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential
Pay
Certificates, the rate per annum specified as such in respect of
such Class of
Certificates in the Preliminary Statement hereto. With respect to
the Class XW
Certificates, for any Distribution Date, the Class XW Pass-Through
Rate. With
respect to any Class of Class KC Certificates, for any Distribution
Date, the
related Class KC Pass-Through Rate.
"Past Grace Period Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly
Payment remaining
unpaid past its Due Date and past any applicable grace period for
such Monthly
Payment as of the Determination Date on the same calendar
month.
"Payment Priority": With respect to any Class of Certificates
(other
than the Class KC and Class V Certificates), the priority of the
Holders thereof
in respect of the Holders of the other Classes of Certificates to
receive
distributions out of the Available Distribution Amount for any
Distribution
Date. The Payment Priority of the respective Classes of
Certificates shall be,
in descending order, as follows: first, the respective Classes of
Senior
Certificates; second, the Class A-M Certificates; third, the Class
A-J
Certificates; fourth the Class B Certificates; fifth, the Class C
Certificates;
sixth, the Class D Certificates; seventh, the Class E Certificates;
eighth, the
Class F Certificates; ninth, the Class G Certificates; tenth, the
Class H
Certificates; eleventh, the Class J Certificates; twelfth, the
Class K
Certificates; thirteenth, the Class L Certificates; fourteenth, the
Class M
Certificates; fifteenth, the Class N Certificates; sixteenth, the
Class O
Certificates; seventeenth, the Class P Certificates; eighteenth,
the Class Q
Certificates; nineteenth, the Class S Certificates; and last, the
respective
Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate or Class KC 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 XW Notional Amount, as the case may be, of the
relevant Class.
With respect to a Class V Certificate or a Residual Certificate,
the percentage
interest in distributions to be made with respect to the relevant
Class, as
stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.13(c).
"Performing Serviced Loan": As of any date of determination,
any
Serviced 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 or
Serviced
Companion Loan Securities, evidence of which shall be confirmed
in writing
by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence
either the right
to receive (a) only interest with respect to such investment or (b)
a yield to
maturity greater than 120% of the yield to maturity at par of the
underlying
obligations; and provided, further, that no investment described
hereunder may
be purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided, further, that each investment described hereunder shall,
by its terms,
have a predetermined fixed amount of principal due at maturity
(that cannot vary
or change) and either a fixed interest rate or variable interest
rate tied to a
single interest rate index plus a single fixed spread; and
provided, further,
that each investment described hereunder shall be a "cash flow
investment", as
defined in the REMIC Provisions; and provided, further, that no
investment
described hereunder shall have a maturity in excess of one year;
and provided,
further, that no investment described hereunder shall be liquidated
prior to its
maturity date; and provided, further, that no investment described
hereunder may
have an "r" highlighter or other comparable qualifier attached to
its rating.
"Permitted Mezzanine Loan Holder": With respect to the
Mezzanine
Loans, any "qualified transferee" with respect to which each Rating
Agency has
confirmed in writing that the holding of the related Mezzanine Loan
by such
Person would not cause a qualification, downgrade or withdrawal of
any of such
Rating Agency's then-current ratings on the Certificates or that
otherwise meets
the qualifications set forth in the related Mezzanine Intercreditor
Agreement to
be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual
Certificate
other than any of a Plan or a Person acting on behalf of or using
the assets of
a Plan, a Disqualified Organization, a Disqualified Non U.S. Person
or a U.S.
Person with respect to whom income on a Residual Certificate is
attributable to
a foreign permanent establishment or fixed base, within the meaning
of an
applicable income tax treaty, of such Person or any other U.S.
Person or any
nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization, limited
liability company or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or,
in
the case of any Serviced Loan having an initial principal balance
under
$1,000,000, a transaction screen, as described in, and meeting the
criteria of
the American Society for Testing and Materials.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section
3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "LNR Partners, Inc., as Special Servicer, for the benefit
of LaSalle
Bank National Association, as Trustee, in trust for registered
Holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2005-6, REO Account". Any such account or
accounts shall be
an Eligible Account.
"Post CAP Serviced Whole Loan": Any Serviced Whole Loan
following
the occurrence and during the continuance of a related Control
Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan
(other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and
that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its
Anticipated
Repayment Date, such assumption to be used for determining the
accrual of
original issue discount, market discount and premium, if any, on
the Mortgage
Loans, the Component Mortgage Loan REMIC Senior Regular Interest,
the REMIC I
Regular Interests and the REMIC II Regular Certificates, and the
Class KC
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Serviced 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 Serviced
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 Serviced
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 Serviced 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
Serviced Loan and ending on the last day of such calendar month,
inclusive. A
Prepayment Interest Shortfall in respect of the KC Component
Mortgage Loan shall
be allocated as set forth in the definition of "Distributable
Certificate
Interest".
"Prepayment Premium": Any premium, penalty or fee paid or
payable,
as the context requires, by a Mortgagor in connection with a
Principal
Prepayment on, or other early collection of principal of, a Loan or
any
successor REO Serviced Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that
is
subject to a Sub-Servicing Agreement as of the Closing Date, the
monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master
Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee
Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage
Loan
that is subject to a Sub-Servicing Agreement as of the Closing
Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer,
the
office thereof primarily responsible for performing its respective
duties under
this Agreement, initially located in Charlotte, North Carolina,
and, with
respect to the Special Servicer, the office thereof primarily
responsible for
performing its respective duties under this Agreement, initially
located in
Florida.
"Principal Distribution Amount": With respect to any
Distribution
Date and in respect of any Mortgage Loan, the aggregate of the
Current Principal
Distribution Amount for such Distribution Date and, if such
Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of
the
Principal Distribution Amount for the preceding Distribution Date,
over the
aggregate distributions of principal made on the Sequential Pay
Certificates on
the preceding Distribution Date; provided that the Principal
Distribution Amount
for any Distribution Date shall be reduced by the amount of any
reimbursements
of Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts
plus
interest on such Nonrecoverable Advances or Workout-Delayed
Reimbursement
Amounts that are paid or reimbursed from principal collections on
the Mortgage
Loans in a period during which such principal collections would
have otherwise
been included in the Principal Distribution Amount for such
Distribution Date
(provided, that if any of the amounts that were reimbursed from
principal
collections on the Mortgage Loans are subsequently recovered on the
related
Mortgage Loan, such recovery will increase the Principal
Distribution Amount for
the Distribution Date related to the period in which such recovery
occurs).
"Principal Pay Certificates": Collectively, the Sequential Pay
Certificates and the Class KC Certificates.
"Principal Prepayment": Any voluntary payment of principal made
by
the Mortgagor on a Loan that is received in advance of its
scheduled Due Date
and that is not accompanied by an amount of interest (without
regard to any
Prepayment Premium that may have been collected) representing
scheduled interest
due on any date or dates in any month or months subsequent to the
month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement
dated
December 16, 2005, relating to the Class A-1, Class A-2, Class A-3,
Class A-SB,
Class A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E
and Class F
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 up to but not including the Due
Date in the
Collection Period of purchase, (b) all related unreimbursed Master
Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances
that are
unreimbursed from related collections on such Mortgage Loan, (c)
all accrued and
unpaid Advance Interest in respect of related Advances, (d) any
Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any
Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but
not so
reimbursed by the related Mortgagor or other party or from
Insurance Proceeds or
Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any)
payable in
connection with a purchase of a Mortgage Loan and (f) any cost,
fees and
expenses of enforcement (including attorneys fees) of a repurchase
obligation
pursuant to Section 2.03(h) of this Agreement. With respect to any
REO Property,
a price equal to the unpaid principal balance of the related REO
Serviced 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 Serviced Loan at the related Mortgage
Rate to but
not including the Due Date in the Collection Period of purchase,
(b) all related
unreimbursed Master Servicing Fees, Special Servicing Fees, Trustee
Fees and
Servicing Advances that are unreimbursed from related collections
on such
Mortgage Loan, (c) all related unreimbursed Servicing Advances, (d)
all accrued
and unpaid Advance Interest in respect of related Advances, (e) any
Additional
Trust Fund Expenses in respect of such REO Property (including any
Additional
Trust Fund Expenses previously reimbursed or paid by the Trust Fund
but not so
reimbursed by the related Mortgagor or other party or from
Insurance Proceeds or
Condemnation Proceeds or otherwise), (f) Liquidation Fees (if any)
payable in
connection with a purchase of a Mortgage Loan and (g) any cost,
fees and
expenses of enforcement (including attorneys fees) of a repurchase
obligation
pursuant to Section 2.03 of this Agreement. The Purchase Price of
any Mortgage
Loan or REO Property is intended to include, without limitation,
principal and
interest previously advanced with respect thereto and not
previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Loan,
Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with
at least five years of experience in respect of the relevant
geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section
2.03, any
other mortgage loan that, on the date of substitution: (i) has a
principal
balance, after deduction of the principal portion of any unpaid
Monthly Payment
due on or before the date of substitution, not in excess of the
Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest
at a fixed
rate of interest at least equal to that of the Defective Mortgage
Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly
Payments
that is no longer than, the Due Date and grace period,
respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same
basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day
year consisting
of twelve 30-day months); (v) has a remaining term to stated
maturity not
greater than, and not more than two years less than, that of the
Defective
Mortgage Loan and, in any event, has a maturity date not later than
two years
prior to the Rated Final Distribution Date; (vi) has a then
current
loan-to-value ratio not higher than, and a then current debt
service coverage
ratio not lower than, the loan-to-value ratio and debt service
coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing
Date; (vii) has
comparable prepayment restrictions to those of the Defective
Mortgage Loan;
(viii) will comply (except in a manner that would not be adverse to
the
interests of the Certificateholders (as a collective whole) in or
with respect
to such mortgage loan), as of the date of substitution, with all of
the
representations relating to the Defective Mortgage Loan set forth
in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement;
(ix) has a
Phase I Environmental Assessment and a property condition report
relating to the
related Mortgaged Property in its Servicing File, which Phase I
Environmental
Assessment will evidence that there is no material adverse
environmental
condition or circumstance at the related Mortgaged Property for
which further
remedial action may be required under applicable law, and which
property
condition report will evidence that the related Mortgaged Property
is in good
condition with no material damage or deferred maintenance; and (x)
constitutes a
"qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the
Code; provided, however, that if more than one mortgage loan is to
be
substituted for any Defective Mortgage Loan, then all such proposed
Replacement
Mortgage Loans shall, in the aggregate, satisfy the requirement
specified in
clause (i) of this definition and each such proposed Replacement
Mortgage Loan
shall, individually, satisfy each of the requirements specified in
clauses (ii)
through (x) of this definition; and provided, further, that no
mortgage loan
shall be substituted for a Defective Mortgage Loan unless (x) such
prospective
Replacement Mortgage Loan shall be acceptable to the Directing
Certificateholder
(or, if there is no Directing Certificateholder then serving, to
the Holders of
Certificates representing a majority of the Voting Rights allocated
to the
Controlling Class), in its (or their) sole discretion, and (y) each
Rating
Agency shall have confirmed in writing to the Trustee that such
substitution
will not in and of itself result in an Adverse Rating Event with
respect to any
Class of Rated Certificates (such written confirmation to be
obtained by, and at
the expense of, the related Mortgage Loan Seller effecting such
substitution).
"Rated Certificate": Any of the Certificates to which a rating
has
been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date": As to each Class of
Certificates
(other than the Class KC Certificates), the Distribution Date in
September 2047.
As to the Class KC Certificates, the Distribution Date in December
2024.
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to each Defaulted Serviced Loan as
to
which a Final Recovery Determination has been made, or with respect
to any REO
Serviced 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 Serviced Loan or REO Serviced 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 Serviced Loan or REO Serviced 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 Serviced Loan or REO Serviced 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 Serviced 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 Serviced
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 Serviced 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 Serviced
Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to
Section
3.20, the amount of the consequent reduction, if any, in the
interest portion of
each successive Monthly Payment due thereon. Each such Realized
Loss shall be
deemed to have been incurred on the Due Date for each affected
Monthly Payment.
With respect to any Serviced Whole Loan, Realized Losses shall
be
deemed allocated first to the related Subordinate Interest(s) and
then to the
related senior Serviced Loan(s).
"Record Date": With respect to each Class of Certificates, for
any
Distribution Date, the last Business Day of the calendar month
immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been
registered
under the Securities Act.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit
M
attached hereto.
"Regulation S Global Certificate": A global certificate
representing
interests in a Class of Certificates as provided in Section
5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully
registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the
accrual
of Advance Interest, which rate per annum shall be equal to the
"prime rate" as
published in the "Money Rates" section of The Wall Street Journal,
as such
"prime rate" may change from time to time. If The Wall Street
Journal ceases to
publish such "prime rate", then the Trustee, in its sole
discretion, shall
select an equivalent publication that publishes such "prime rate";
and if such
"prime rate" is no longer generally published or is limited,
regulated or
administered by a governmental or quasi-governmental body, then the
Trustee
shall select a comparable interest rate index. In either case, such
selection
shall be made by the Trustee in its sole discretion and the Trustee
shall notify
the Master Servicer and the Special Servicer in writing of its
selection.
"Release Date": The 40th day after the later of (i) the
commencement
of the offering of the Certificates and (ii) the Closing Date.
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code.
"REMIC Administrator": LaSalle Bank National Association, its
successor in interest, or any successor REMIC administrator
appointed as herein
provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is
to be made,
consisting of: (i) the Majority Mortgage Loans (other than Excess
Interest) as
from time to time are subject to this Agreement and all payments
under and
proceeds of such Mortgage Loans received or receivable after the
Cut-off Date
(other than payments of principal, interest and other amounts due
and payable on
the Mortgage Loans on or before the Cut-off Date), together with
all documents,
Escrow Payments and Reserve Funds delivered or caused to be
delivered hereunder
by the related Mortgage Loan Seller with respect to such Mortgage
Loans; (ii)
the KC Component Mortgage Loan REMIC Senior Regular Interest, (iii)
any REO
Property acquired in respect of a Majority Mortgage Loan and all
payments and
proceeds of such REO Property; (iv) the rights of the Depositor
under Sections
2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the
Mortgage Loan
Purchase and Sale Agreements with respect to such Mortgage Loans;
and (v) such
amounts on or with respect to clauses (i), (ii) or (iii) as from
time to time
are deposited into the Distribution Account, the Certificate
Account, the
Interest Reserve Account and the REO Account (if established) and
the Excess
Liquidation Proceeds Account (if established), and in the case of a
Whole Loan,
to the extent of the Trust's interest in each of the foregoing.
"REMIC I Distribution Account": The segregated account or
accounts
created and maintained as a separate trust account or accounts by
the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle Bank
National
Association, as Trustee, in trust for Holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-6,
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 KC
Certificate, a Class V Certificate or 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 2005-6,
REMIC II Distribution Account" and which account shall be an
Eligible Account
and a sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other
than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and temporary and final Treasury regulations (or
proposed
regulations that would apply by reason of their proposed effective
date to the
extent not inconsistent with temporary or final regulations) and
any rulings
promulgated thereunder, as the foregoing may be in effect from time
to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in Section 856(d) of the Code,
which income,
subject to the terms and conditions of that Section of the Code in
its present
form, does not include:
(1) except as provided in Section 856(d)(4) or (6) of the Code,
any
amount
received or accrued, directly or indirectly, with respect to
such
REO
Property, if the determination of such amount depends in whole or
in
part on
the income or profits derived by any Person from such property
(unless
such amount is a fixed percentage or percentages of receipts or
sales and
otherwise constitutes Rents from Real Property);
(2) any amount received or accrued, directly or indirectly, from
any
Person if
the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person
determined
in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(3) any amount received or accrued, directly or indirectly,
with
respect to
such REO Property if any Person Directly Operates such REO
Property;
(4) any amount charged for services that are not customarily
furnished
in connection with the rental of property to tenants in
buildings
of a similar class in the same geographic market as such REO
Property
within the meaning of Treasury Regulations Section
1.856-4(b)(1)(whether or not such charges are separately stated);
and
(5) rent attributable to personal property unless such personal
property
is leased under, or in connection with, the lease of such REO
Property
and, for any taxable year of the Trust Fund, such rent is no
greater
than 15 percent of the total rent received or accrued under, or
in
connection
with, the lease.
"REO Account": The Pool REO Account and/or a Serviced Whole Loan
REO
Account, as applicable.
"REO Acquisition": The acquisition of an REO Property for
federal
income tax purposes pursuant to Treasury Regulations Section
1.856-6.
"REO Disposition": The sale or other disposition of the REO
Property
pursuant to Section 3.18.
"REO Extension": As
defined in Section 3.16(a).
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the
Certificateholders
(and, in the case of a related Mortgaged Property securing a
Serviced Whole
Loan, for the benefit of the Certificateholders and the related
Companion Loan
Holder(s), as their interests may appear) pursuant to Section 3.09
through
foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with the default or
imminent
default of a Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Serviced Loan": The mortgage loan deemed for purposes hereof
to
be outstanding with respect to each REO Property acquired in
respect of any
Serviced Loan. Each REO Serviced 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
Serviced
Loan. Each REO Serviced 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 Serviced
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 Serviced
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 Serviced Loan. In
addition,
Nonrecoverable Advances (including interest on such Nonrecoverable
Advances) and
Workout-Delayed Reimbursement Amounts with respect to such REO
Serviced Loan
that were reimbursed from collections on the Serviced Loans and
resulted in
principal distributed to the Certificateholders being reduced as a
result of the
first proviso of the definition of "Principal Distribution Amount",
shall be
deemed outstanding until recovered or until a Final Recovery
Determination is
made. All amounts payable or reimbursable to the Master Servicer,
the Special
Servicer or the Trustee in respect of the related Serviced Loan as
of the date
of the related REO Acquisition, including, without limitation, any
unpaid
Servicing Fees and any unreimbursed Advances, together with any
Advance Interest
accrued and payable to the Master Servicer, the Special Servicer or
the Trustee
in respect of such Advances, shall continue to be payable or
reimbursable to the
Master Servicer, the Special Servicer or the Trustee as the case
may be, in
respect of an REO Serviced Loan. If the Loans comprising the 277
Park Avenue
Whole Loan become REO Serviced Loans, amounts received by the Trust
with respect
to such REO Serviced Loans shall be applied to amounts due and
owing in respect
of such REO Serviced Loans as provided in Section 1(b) of the 277
Park Avenue
Intercreditor Agreement. If the Serviced Loans comprising the
KinderCare
Portfolio Whole Loan become REO Serviced Loans, amounts received by
the Trust
with respect to such REO Serviced Loans shall be applied to amounts
due and
owing in respect of such REO Serviced Loans as provided in Section
1(c) of the
KinderCare Portfolio Intercreditor Agreement. Collections in
respect of each REO
Serviced 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 Serviced Loan, that
were reimbursed
from collections on the Serviced 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 Serviced 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
Serviced 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 Serviced Loan; fifth, as a recovery of any other amounts deemed
to be due
and owing in respect of the related REO Serviced Loan (other than,
in the case
of an REO Serviced 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 Serviced 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
Serviced Loan to but not including the date of receipt by or on
behalf of the
Trust, in that order.
"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 Serviced Loan": As defined in Section
3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the
following minimum
ratings assigned to such carrier by at least one of the other
following parties
and, in any event, by each Rating Agency that assigned a rating to
the
claims-paying ability of such insurance carrier: Moody's ("A2" or
better), S&P
("A" or better) and A.M. Best ("A: VIII" or better) or any
insurance carrier
backed or guaranteed by an insurer with such required ratings;
provided,
however, that a rating by A.M. Best shall be disregarded and shall
not be
applicable as one of the two required ratings except with respect
to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer
and then
only to the extent in force as of the Closing Date. Notwithstanding
the
preceding sentence, an insurance carrier with lower or fewer
claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying
Ratings" if
the applicable Rating Agency has confirmed in writing that such
insurance
carrier shall not result, in and of itself, in a downgrading,
withdrawal or
qualification (if applicable) of the then current rating assigned
by such Rating
Agency to any Class of Certificates, unless, with respect to
policies maintained
by borrowers, a higher claims-paying ability rating is required
under any of the
loan documents.
"Reserve Account": The account or accounts created and
maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered
by
the related Mortgagor (and not previously disbursed) to be held in
escrow by or
on behalf of the mortgagee representing reserves for principal and
interest
payments, repairs, replacements, capital improvements (including,
without
limitation, tenant improvements and leasing commissions), and/or
environmental
testing and remediation with respect to the related Mortgaged
Property.
"Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Resolution Extension Period": 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 Global Securities and Trust Services Group,
any vice
president, any assistant vice president, any assistant secretary,
any assistant
treasurer, or any other officer of the Trustee customarily
performing functions
similar to those performed by any of the above designated officers
to whom a
particular matter is referred by the Trustee because of such
officer's knowledge
of and familiarity with the particular subject. When used with
respect to any
Certificate Registrar (other than the Trustee), any officer or
assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation
S
commencing on the later of (a) the date upon which the Certificates
are first
offered to persons other than the managers and any other
distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest. If
neither S&P nor
any successor remains in existence, "S&P" shall be deemed to
refer to such other
nationally recognized statistical rating agency or other comparable
Person
designated by the Depositor, notice of which designation shall be
given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator,
and specific ratings of Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Certification": As defined in Section 8.13(b).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument,
whether contained
in the related Mortgage or executed separately, creating in favor
of the holder
of such Mortgage a security interest in the personal property
constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4 and Class XW Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance
of the Class
A-1, Class A-2, Class A-3, Class A-SB and Class A-4 Certificates
outstanding
immediately prior to such Distribution Date exceeds the sum of (a)
the aggregate
Stated Principal Balance of the Mortgage Pool (less the aggregate
KC Component
Mortgage Loan Subordinate Component Balance of the KC Component
Mortgage Loan
Subordinate Components) 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, Class A-2, Class A-3, Class
A-SB and Class
A-4 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, Class P, Class Q or Class S Certificate.
"Serviced Companion Loans": Collectively, the 277 Park Avenue
Pari
Passu Note A-2, the KinderCare Pari Passu Note A-2 and the
KinderCare Pari Passu
Note A-3.
"Serviced Companion Loan Securities": For so long as the
Mortgage
Loan related thereto or any successor REO Serviced Loan thereof is
part of the
Mortgage Pool, any class of securities backed by a Serviced
Companion Loan. Any
reference herein to a "series" of Serviced Companion Loan
Securities shall refer
to separate securitizations of one or more of the Serviced
Companion Loans.
"Serviced Loan": Any Mortgage Loan or Serviced Whole Loan.
"Serviced Whole Loan": The 277 Park Avenue Whole Loan and the
KinderCare Portfolio Whole Loan.
"Serviced Whole Loan Custodial Account": With respect to
Serviced
Whole Loans, the segregated account or accounts created and
maintained by the
Master Servicer pursuant to Section 3.04(e) on behalf of (i) the
277 Park Avenue
Noteholders, which shall be entitled "Bank of America, N.A., as
Master Servicer,
in trust for the 277 Park Avenue Noteholders, as their interests
may appear",
and (ii) the KinderCare Portfolio Noteholders, which shall be
entitled "Bank of
America, N.A., as Master Servicer, in trust for the KinderCare
Portfolio
Noteholders, as their interests may appear", as applicable. Any
such account
shall at all times be an Eligible Account.
"Serviced Whole Loan Remittance Amount": With respect to any
Master
Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the
related Serviced Whole Loan Custodial Account as of the
commencement of business
on such Master Servicer Remittance Date, net of (b) any portion of
the amounts
described in clause (a) of this definition that represents one or
more of the
following: (i) collected Monthly Payments that are due on a Due
Date following
the end of the related Collection Period, (ii) any unscheduled
payments of
principal (including, without limitation, Principal Prepayments,
Liquidation
Proceeds and Insurance Proceeds) received after the end of the
related
Collection Period, (iii) any Prepayment Premiums received after the
end of the
related Collection Period), (iv) any amounts payable or
reimbursable to any
Person from the related Serviced Whole Loan Custodial Account
pursuant to any of
clauses (ii) through (xx) of Section 3.05(f), (v) any Excess
Liquidation
Proceeds, and (vi) any amounts deposited into the related Serviced
Whole Loan
Custodial Account in error; provided that, with respect to the
Master Servicer
Remittance Date that occurs in the same calendar month as the Final
Distribution
Date, the Serviced Whole Loan Remittance Amount will be calculated
without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition.
"Serviced Whole Loan REO Account": As defined in Section
3.16(b).
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan
Modification and
Corrected Mortgage Loan Report, (iv) CMSA Historical Liquidation
Report, (v)
CMSA Comparative Financial Status Report, (vi) CMSA Servicer Watch
List Report,
(vii) CMSA NOI Adjustment Worksheet, (viii) CMSA Operating
Statement Analysis
Report, (ix) CMSA Loan Level Reserve-LOC Report, (x) CMSA Loan
Periodic Update
File, (xi) CMSA Property File, (xii) CMSA Financial File and (xiii)
CMSA Advance
Recovery Report.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect
to
any Serviced Loan, all customary, reasonable and necessary "out of
pocket" costs
and expenses incurred or to be incurred, as the context requires,
by the Master
Servicer or, with respect to the Specially Serviced Loans, by the
Master
Servicer at the direction of the Special Servicer or by the Special
Servicer
(or, if applicable, the Trustee) in connection with the servicing
of a Serviced
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 Serviced 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
Serviced 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
Serviced 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 Serviced
Loan, the date that servicing thereof is returned by the Special
Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master
Servicer
and the Special Servicer subject to applicable law and the express
terms of the
relevant Loans and in the case of a Whole Loan, the related
Intercreditor
Agreement, to service and administer the Serviced 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 Serviced Loans, the full collection of all
Prepayment
Premiums that may become payable under the Serviced Loans and, in
the case of
the Special Servicer, if a Serviced 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 Serviced Loan to the Certificateholders, and, in
the case of a
Serviced Whole Loan, on behalf of the related Companion Loan
Holder(s) as a
collective whole, on a net present value basis; and (c) without
regard to: (i)
any known relationship that the Master Servicer (or any Affiliate
thereof) or
the Special Servicer (or any Affiliate thereof), as the case may
be, may have
with the related Mortgagor or with any other party to this
Agreement; (ii) the
ownership of any Certificate, any Companion Loan or any interest in
any
mezzanine loan by the Master Servicer (or any Affiliate thereof) or
the Special
Servicer (or any Affiliate thereof), as the case may be; (iii) the
obligation of
the Master Servicer to make Advances, (iv) the obligation of the
Special
Servicer to make, or direct the Master Servicer to make, Servicing
Advances; (v)
the right of the Master Servicer (or any Affiliate thereof) or the
Special
Servicer (or any Affiliate thereof), as the case may be, to
receive
reimbursement of costs, or the sufficiency of any compensation
payable to it,
hereunder or with respect to any particular transaction; or (vi)
any ownership,
servicing and/or management by the Master Servicer (or any
Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may
be, of any
other mortgage loans or real property.
"Servicing Transfer Event" shall mean, with respect to any
Serviced
Loan, any of the following events:
(a) the related Mortgagor has failed to make when due any
Monthly
Payment
(including a Balloon Payment) or any other payment required
under
the
related loan documents, which failure continues, or the Master
Servicer
or the Special 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 (who shall promptly forward to the Special Servicer a
copy
of such
refinancing commitment), for such longer period, not to exceed
60
days
beyond the related maturity date, during which the refinancing
would
occur;
or
(b) the Master Servicer (or the Special Servicer with the consent
of
the
Directing Certificateholder) has determined, in its reasonable,
good
faith
judgment, that a default in the making of a Monthly Payment
(including
a Balloon Payment) or any other material payment required under
the
related loan documents is likely to occur within 30 days and
either
(i) the
related Mortgagor has requested a material modification of the
payment
terms of the Serviced Loan or (ii) such default is likely to
remain
unremedied for at least the period contemplated by clause (a)
of
this
definition; or
(c) the Master Servicer (or the Special Servicer with the consent
of
the
Directing Certificateholder) has determined, in its reasonable,
good
faith
judgment, that a default, other than as described in clause (a)
or
(b) of this
definition, has occurred or is imminent that may materially
impair the
value of the related Mortgaged Property as security for the
Serviced
Loan, which default has continued or is reasonably expected to
continue
unremedied for the applicable cure period under the terms of
the
Serviced
Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory
authority
having
jurisdiction in the premises in an involuntary action against
the
related
Mortgagor under any present or future federal or state
bankruptcy,
insolvency
or similar law or the appointment of a conservator, receiver or
liquidator
in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the
related
Mortgagor;
or
(e) the related Mortgagor shall have consented to the appointment
of
a
conservator, receiver or liquidator in any insolvency, readjustment
of
debt,
marshalling of assets and liabilities or similar proceeding of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(f) the related Mortgagor shall have admitted in writing its
inability
to pay its debts generally as they become due, filed a petition
to take
advantage of any applicable insolvency or reorganization
statute,
made an assignment for
the benefit of its creditors, or voluntarily
suspended
payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property.
Notwithstanding the foregoing, with respect to the 277 Park
Avenue
Whole Loan and the KinderCare Portfolio Whole Loan, the related
Mortgage Loan
and each related Companion Loan shall be deemed to be a Specially
Serviced Loan
if any loan within such Whole Loan becomes a Specially Serviced
Loan.
A Servicing Transfer Event with respect to any Serviced 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 Serviced Loan (as such
terms may be
changed or modified in connection with a bankruptcy or similar
proceeding
involving the related Mortgagor or by reason of a modification,
waiver or
amendment granted or agreed to by the Master Servicer or the
Special Servicer
pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b),
(c)
(likely default), (d), (e) and (f) above, if and when such
circumstances cease
to exist in the reasonable, good faith judgment of the Special
Servicer;
(y) in the case of the circumstances described in clause (c)
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;
so long as at that time no circumstance identified in clauses (a)
through (g)
above exists that would cause the Serviced Loan to continue to be
characterized
as a Specially Serviced Loan and provided no additional default is
foreseeable
in the reasonable good faith judgment of the Special Servicer.
"Shaw's Supermarket Mezzanine Intercreditor Agreement": That
certain
Intercreditor Agreement, dated as of November 15, 2005 by and
between Bank of
America, N.A. as "Senior Lender" and the Shaw's Supermarket
Mezzanine Loan
Holder as "Mezzanine Lender".
"Shaw's Supermarket Mezzanine Loan": That certain mezzanine
loan
related to the Shaw's Supermarket Mortgage Loan, which is evidenced
by that
certain Mezzanine Loan Agreement, dated as of November 15, 2005 by
and between
Bank of America, N.A. and the Shaw's Supermarket Mezzanine Loan
Holder.
"Shaw's Supermarket Mezzanine Loan Holder": RAIT Partnership,
L.P.,
a Delaware limited partnership.
"Shaw's Supermarket Mortgage Loan": The Mortgage Loan identified
as
Loan No. 20051273 in the Mortgage Loan Schedule, which is secured
by a Mortgage
on the Shaw's Supermarket Mortgaged Property.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose Entity": A Person, other than an individual,
whose
organizational documents provide that it is formed solely for the
purpose of
owning the related Mortgaged Property, Mortgaged Properties
securing other Loans
and assets incidental to the ownership and operation of such
Mortgaged Property
or Properties, and that has agreed, either in such organizational
documents or
the loan documents relating to any related Loan, that it (a) does
not engage in
any business unrelated to such property and the financing thereof;
(b) does not
have any indebtedness other than as permitted by the related
Mortgage, (c)
maintains its own books, records and accounts, in each case that
are separate
and apart from the books, records and accounts of any other Person;
(d) conducts
business in its own name; (e) does not guarantee or assume the
debts or
obligations of any other person; (f) does not commingle its assets
or funds with
those of any other Person; (g) transacts business with affiliates
on an arm's
length basis; and (h) holds itself out as being a legal entity
separate and
apart from any other Person. In addition, such entity's
organizational documents
provide that any dissolution and winding up or insolvency filing
for such entity
requires either the unanimous consent of all partners or members,
as applicable,
or the consent of an independent Person (whether as a partner,
member, or
director in such entity or in any Person that is the managing
member or general
partner of such entity or otherwise), and either such
organizational documents
or the terms of the loan documents provide that such organizational
documents
may not be amended without the consent of the lender as regards
such
single-purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a
Certificate
of any Class of REMIC II Regular Certificates or Class KC
Certificates
evidencing a $1,000 denomination or, in the case of a Class XW
Certificate, a
100% Percentage Interest.
"SNDA": As defined in Section 3.20(g).
"Special Action": As defined in Section 3.21(e).
"Special
Servicer": LNR Partners, Inc., a Florida corporation, its
successor in interest, or any successor special servicer appointed
as herein
provided.
"Special Servicing Fee": With respect to each Loan that is a
Specially Serviced Loan and each REO Serviced Loan, the fee
designated as such
and payable to the Special Servicer pursuant to the first paragraph
of Section
3.11(c), which in any event shall be a minimum of $4,000 per month
per Specially
Serviced Loan and REO Serviced Loan.
"Special Servicing Fee Rate": With respect to each Loan that is
a
Specially Serviced Loan and each REO Serviced Loan, 0.35% (35 basis
points) per
annum.
"Specially Serviced Loan": Any Serviced Loan as to which there
then
exists a Servicing Transfer Event. Upon the occurrence of a
Servicing Transfer
Event with respect to any Serviced Loan, such Serviced 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 Serviced Loan.
"Startup Day": With respect to each of the Component Mortgage
Loan
REMIC, REMIC I and REMIC II, the day designated as such in Section
10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date
on
which the last payment of principal is due and payable under the
terms of the
related Mortgage Note as in effect on the Closing Date, without
regard to any
change in or modification of such terms in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer
or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan,
without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and
any successor REO Serviced Loan), a principal amount initially
equal to the
Cut-off Date Balance of such Mortgage Loan, that is permanently
reduced on each
Distribution Date (to not less than zero) by (i) all payments (or
P&I Advances
in lieu thereof) of, and all other collections allocated as
provided in Section
1.03 to, principal of or with respect to such Mortgage Loan (or
successor REO
Serviced 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
Serviced Loan) during the related Collection Period. With respect
to any
Companion Loan (and any successor REO Serviced Loan), a principal
amount
initially equal to the Cut-off Date Balance of such Companion Loan,
that is
permanently reduced (to not less than zero) by (i) all payments (or
P&I Advances
in lieu thereof) of, and all other collections allocated as
provided in Section
1.03 to, principal of or with respect to such Companion Loan (or
successor REO
Serviced Loan) that are (or, if they had not been applied to cover
any
Additional Trust Fund Expense, would have been) distributed to the
related
Companion Loan Holder(s), and (ii) the principal portion of any
Realized Loss
incurred in respect of such Companion Loan (or successor REO
Serviced Loan)
during the related Collection Period. Notwithstanding the
foregoing, if a
Liquidation Event occurs in respect of any Loan or REO Property,
then the
"Stated Principal Balance" of such Loan or of the related REO
Serviced Loan, as
the case may be, shall be zero commencing as of the Distribution
Date in the
Collection Period next following the Collection Period in which
such Liquidation
Event occurred. In addition, to the extent that principal from
general
collections is used to reimburse Nonrecoverable Advances or
Work-out Delayed
Reimbursement Amounts, and such amount has reduced the Principal
Distribution
Amount, such amount shall not reduce the Stated Principal Balance
prior to a
Liquidation Event or other liquidation or disposition of the
related Mortgage
Loan or REO Property (other than for purposes of computing the
Weighted Average
Adjusted Net Mortgage Rate).
"Sub-Servicer": Any Person with which the Master Servicer or
the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified
or amended.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B,
Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O, Class P, Class Q or Class S Certificate or a
Residual
Certificate.
"Subordinate Interest": With respect to any Whole Loan, any
related
subordinate note or component.
"Subordinate Interest Holder": With respect to any Whole Loan,
the
holder of the related Subordinate Interest.
"Substitution Shortfall Amount": An amount equal to the excess
if
any of the difference between the Purchase Price of the Deleted
Mortgage Loan
calculated as of the date of substitution and the Stated Principal
Balance of
such Qualifying Substitute Mortgage Loan as of the date of
substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Successful Sub-Servicing Bidder": As defined in Section
3.22(j).
"Tax Matters Person": With respect to each of the Component
Mortgage
Loan REMIC, REMIC I and REMIC II, the Person designated as the "tax
matters
person" of such REMIC in the manner provided under Treasury
Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The
"Tax Matters
Person" for each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II is
the Holder of Certificates evidencing the largest Percentage
Interest in the
related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066,
U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return,
including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders
of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to
be filed on
behalf of each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II due to
its classification as a REMIC under the REMIC Provisions, together
with any and
all other information, reports or returns that may be required to
be furnished
to the Certificateholders or filed with the IRS or any other
governmental taxing
authority under any applicable provisions of federal or Applicable
State Law.
"Threshold Event Collateral": As defined in Section
3.29(e)(vi).
"Threshold Event Cure": As defined in Section 3.29(e)(vi).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer
Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of the Component
Mortgage Loan REMIC, REMIC I, REMIC II 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
Serviced Loan and
REO Serviced 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
Serviced Loan or deemed to be due on such related REO Serviced 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 0.00072% 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 "www.etrustee.net", or at such other address
as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial
Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to the KC
Component
Mortgage Loan REMIC Senior Regular Interest for any Distribution
Date, one
month's interest at the interest rate applicable to the KC
Component Mortgage
Loan REMIC Senior Regular Interest for such Distribution Date,
accrued on the
Uncertificated Principal Balance of such KC Component Mortgage Loan
REMIC Senior
Regular Interest outstanding immediately prior to such Distribution
Date. With
respect to any REMIC I Regular Interest, for any Distribution Date,
one month's
interest at the REMIC I Remittance Rate applicable to such REMIC I
Regular
Interest for such Distribution Date, accrued on the REMIC I
Principal Balance of
such REMIC I Regular Interest outstanding immediately prior to such
Distribution
Date. The Uncertificated Accrued Interest in respect of the KC
Component
Mortgage Loan REMIC Senior Regular Interest or any REMIC I Regular
Interest for
any Distribution Date shall be deemed to have accrued during the
applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any KC
Component Mortgage Loan REMIC Senior Regular Interest for any
Distribution Date,
the Uncertificated Accrued Interest in respect of the KC Component
Mortgage Loan
REMIC Senior Regular Interest for such Distribution Date, reduced
(to not less
than zero) by the amount of Prepayment Interest Shortfalls, if any,
for such
Distribution Date, that relate to the KC Component Mortgage Loan
and are
allocable to the REMIC II Regular Certificates in accordance with
the definition
of "Distributable Certificate Interest" for such Distribution Date.
With respect
to any REMIC I Regular Interest, for any Distribution Date, the
Uncertificated
Accrued Interest in respect of such REMIC I Regular Interest for
such
Distribution Date, reduced (to not less than zero) by the product
of (i) the Net
Aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date
(other than to the extent allocable to the KC Component Mortgage
Loan
Subordinate Components), multiplied by (ii) a fraction, the
numerator of which
is the Uncertificated Accrued Interest in respect of such REMIC I
Regular
Interest for such Distribution Date, and the denominator of which
is the
aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular
Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to the KC
Component
Mortgage Loan REMIC Senior Regular Interest, (i) on or prior to the
first
Distribution Date, an amount equal to the initial principal amount
of the KC
Component Mortgage Loan REMIC Senior Regular Interest as specified
in the
Preliminary Statement hereto, and (ii) as of any date of
determination after the
first Distribution Date, an amount equal to the KC Component
Mortgage Loan
Senior Balance on the Distribution Date immediately prior to such
date of
determination.
"Underwriter": Each of Banc of America Securities LLC, Bear,
Stearns
& Co. Inc., Barclays Capital Inc., Deutsche Bank Securities
Inc. and Morgan
Stanley & Co. Incorporated.
"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 Serviced Loan or related
REO Property
in respect of which the Advance was made.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"U.S.
Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the
applicable
Treasury regulations) created or organized in, or under the laws
of, the United
States, any State thereof or the District of Columbia, including an
entity
treated as a corporation or partnership for federal income tax
purposes, or an
estate whose income is subject to United States federal income tax
regardless of
its source, or a trust if a court within the United States is able
to exercise
primary supervision over the administration of the trust and one or
more such
U.S. Persons have the authority to control all substantial
decisions of the
trust (or, to the extent provided in applicable Treasury
regulations, certain
trusts in existence on August 20, 1996 that are eligible to elect
to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times
during the term
of this Agreement, 98% of the Voting Rights shall be allocated
among the Holders
of the various outstanding Classes of Sequential Pay Certificates
in proportion
to the respective Class Principal Balances of their Certificates,
and 2% of the
Voting Rights shall be allocated to the Holders of the Class XW
Certificates.
None of the Class KC, Class V, Class R-I or Class R-II Certificates
will be
entitled to any Voting Rights. Voting Rights allocated to a Class
of
Certificateholders shall be allocated among such Certificateholders
in
proportion to the Percentage Interests evidenced by their
respective
Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to
any
Distribution Date, the weighted average of the respective Adjusted
Net Mortgage
Rates for all the Mortgage Loans and related REO Serviced Loans (in
the case of
the KC Component Mortgage Loan, the KC Component Mortgage Loan
Senior Component
only), excluding any Companion Loan which may be an REO Serviced
Loan, weighted
on the basis of the respective Stated Principal Balances (less,
with respect to
the KC Component Mortgage Loan, the Class Principal Balance of the
Class KC
Certificates) outstanding immediately prior to such Distribution
Date.
"Whole Loan": Together, the 277 Park Avenue Whole Loan and the
KinderCare Portfolio Whole Loan.
"Whole Loan Purchase Option Holder": With respect to any Whole
Loan,
the holder of the related purchase option, if any, under the
related
Intercreditor Agreement. With respect to the KinderCare Portfolio
Whole Loan,
the KinderCare Portfolio Purchase Option Holder.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment
remaining unpaid
past its Due Date, as of the close of business on the Determination
Date in the
same calendar month, but which is not delinquent past the
applicable grace
period for such Monthly Payment as of the close of business on
such
Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any
Serviced
Loan, the amount of any Advance made with respect to such Serviced
Loan on or
before the date such Serviced Loan becomes (or, but for the making
of three
monthly payments under its modified terms, would then constitute) a
Corrected
Serviced 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
Serviced Loan
becomes a Corrected Serviced 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 Serviced Loan that is a
Corrected Serviced 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 Serviced Loan
as
to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional
Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include
the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be
deemed
to be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning
and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument
or
other document herein shall be construed as referring to such
agreement,
instrument or other document as from time to time amended,
supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements
or modifications set forth herein);
(f) any reference to any Person, or to any Person in a
specified
capacity, shall be construed to include such Person's successors
and assigns or
such Person's successors in such capacity, as the case may be;
(g) unless otherwise specified herein, "pro rata" when used in
reference to more than one Class of the Certificates shall mean
"pro rata" based
on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the
designated Articles, Sections, Subsections, clauses and other
subdivisions of
this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words
of
similar import refer to this Agreement as a whole and not to any
particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected by or on behalf of the Trust in respect
of
any Cross-Collateralized Group in the form of payments from
Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds,
shall be
applied among the Mortgage Loans constituting such
Cross-Collateralized Group in
accordance with the express provisions of the related loan
documents and, in the
absence of such express provisions, in accordance with the
Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of or
allocable to
any particular Mortgage Loan in the form of payments from
Mortgagors, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds shall be
applied to
amounts due and owing under the related Mortgage Note and Mortgage
(including
for principal and accrued and unpaid interest) in accordance with
the express
provisions of the related loan documents and, in the absence of
such express
provisions or if and to the extent that such terms authorize the
lender to use
its discretion, shall be applied: first, as a recovery of
Nonrecoverable
Advances (including interest on such Nonrecoverable Advances)
and
Workout-Delayed Reimbursement Amounts that were reimbursed from
general
collections on the Mortgage Loans and resulted in principal
distributed to the
Certificateholders being reduced as a result of the first proviso
in the
definition of "Principal Distribution Amount", and, if applicable,
unpaid
related Liquidation Expenses and any outstanding related Additional
Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest
(excluding Excess
Interest in the case of an ARD Loan after its Anticipated Repayment
Date) 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 Serviced Loan, that were reimbursed from collections on
the Mortgage
Loans and resulted in principal distributed to the
Certificateholders being
reduced as a result of the first proviso of the definition of
"Principal
Distribution Amount"; second, as a recovery of accrued and unpaid
interest
(excluding, in the case of an REO Serviced Loan that relates to an
ARD Loan
after its Anticipated Repayment Date, Excess Interest) on such REO
Serviced 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 Serviced 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 Serviced Loan; fifth,
as a recovery
of any other amounts deemed to be due and owing in respect of the
related REO
Serviced Loan (other than, in the case of an REO Serviced 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 Serviced 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 Serviced 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 Serviced Loan, as the case
may be, that
constitute Additional Master Servicing Compensation payable to the
Master
Servicer and/or Additional Special Servicing Compensation payable
to the Special
Servicer, are insufficient to cover the full amount of such fees
and charges,
such amounts shall be allocated between such of those fees and
charges as are
payable to the Master Servicer, on the one hand, and such of those
fees and
charges as are payable to the Special Servicer, on the other, pro
rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary,
with
respect to each Mortgage Loan subject to an involuntary prepayment
of principal
during a Collection Period, all interest collected during such
Collection Period
in connection with such involuntary prepayment of principal that
the related
lender would be entitled to retain under the related loan documents
shall be
treated as excess interest and shall be used to offset any
shortfalls of
interest for the related Distribution Date resulting from
involuntary
prepayments of principal during such Collection Period prior to
such shortfalls
of interest being allocated to any Class of Certificates. Any such
interest not
required to offset shortfalls of interest for the related
Distribution Date
pursuant to the immediately preceding sentence shall constitute
Additional
Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of
any
Mortgage Loan or REO Property shall be determined by the Master
Servicer and
reflected in the appropriate monthly report from the Master
Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the
Trustee, as
applicable, primarily to the administration of the Trust Fund, any
REMIC formed
hereunder or to any determination respecting the amount, payment or
avoidance of
any tax under the REMIC Provisions or the actual payment of any
REMIC tax or
expense, or this Agreement states that any expense is solely "an
expense of the
Trust Fund" or words of similar import, then such expense shall not
be allocated
to, deducted or reimbursed from, or otherwise charged against any
Companion Loan
Holder(s) and such Companion Loan Holder(s) shall not suffer any
adverse
consequences as a result of the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the
Mortgage Loan
Schedule as being cross-collateralized with each other are, in the
case of each
such particular group of Mortgage Loans, by their terms,
cross-defaulted and
cross-collateralized with each other. For purposes of reference
only in this
Agreement, and without in any way limiting the servicing rights and
powers of
the Master Servicer and/or the Special Servicer, with respect to
any
Cross-Collateralized Mortgage Loan (or successor REO Serviced
Loan), the
Mortgaged Property (or REO Property) that relates or corresponds
thereto shall
be the property identified in the Mortgage Loan Schedule as
corresponding
thereto. The provisions of this Agreement shall be interpreted in a
manner
consistent with this Section 1.04; provided that, if there exists
with respect
to any Cross-Collateralized Group only one original of any document
referred to
in the definition of "Mortgage File" covering all the Mortgage
Loans in such
Cross-Collateralized Group, then the inclusion of the original of
such document
in the Mortgage File for any of the Mortgage Loans constituting
such
Cross-Collateralized Group shall be deemed an inclusion of such
original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at
the
beginning of this Agreement constitutes a part of this
Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such
trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial
Mortgage
Pass-Through Certificates, Series 2005-6". 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 Component
Mortgage Loan
REMIC Distribution Account, the REMIC I Distribution Account, the
REMIC II
Distribution Account, the Interest Reserve Account, the Excess
Interest
Distribution Account, the Excess Liquidation Proceeds Account and
the REO
Account (if established); and (iv) in the case of a Mortgage Loan
included in a
Whole Loan, is subject to the related Intercreditor Agreement. The
conveyance of
the 277 Park Avenue Pari Passu Note A-1 Mortgage Loan and the right
to service
such Mortgage Loan are subject to the terms and conditions of the
277 Park
Avenue Intercreditor Agreement and this Agreement. The conveyance
of the
KinderCare Portfolio Pari Passu Note A-1 Mortgage Loan and the
right to service
such Mortgage Loan are subject to the terms and conditions of the
KinderCare
Portfolio Intercreditor Agreement and this Agreement. In connection
with the
transfer and assignment set forth in this Section 2.01, the
Depositor shall make
a cash deposit to the Certificate Account in an amount equal to the
Interest
Deposit Amount. This conveyance is subject to the rights of the
Sub-Servicers
pursuant to the Sub-Servicing Agreements which rights are subject
in any event
to this Agreement.
Under United States generally accepted accounting principles,
the
Depositor shall report: (i) its acquisition of the Mortgage Loans
from the
Mortgage Loan 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 a purchase and such transfer as a sale (in each
case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the
Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any
action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b) above, the Depositor hereby represents and warrants
that it has
contractually obligated the Mortgage Loan 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, any Custodian,
the Master
Servicer or the Special Servicer shall be liable for any failure by
any 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 December 2005 or, in the case of a Replacement Mortgage
Loan, on or
prior to the related date of substitution), all amounts held from
time to time
in the Certificate Account, the Component Mortgage Loan REMIC
Distribution
Account, the REMIC I Distribution Account, the REMIC II
Distribution Account,
the Interest Reserve Account, the Excess Interest Distribution
Account, the
Excess Liquidation Proceeds Account, or the REO Account, and all
reinvestment
earnings on such amounts, and all of the Depositor's right, title
and interest
under the Mortgage Loan Purchase and Sale 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 90
days
after the later of (i) the Closing Date (or, in the case of a
Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after
the related
date of substitution) and (ii) the date on which all recording
information
necessary to complete the subject document is received by the
Trustee, the
Trustee shall complete (to the extent necessary), and shall submit
for recording
or filing, as the case may be, in the appropriate office for real
property
records or UCC Financing Statements, as applicable (except with
respect to any
Mortgage 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 and Assignment of Leases that has been
recorded in the
name of MERS or its designee) in favor of the Trustee referred to
in clauses
(iv) and (v) of the definition of "Mortgage File" that has been
received by the
Trustee or a Custodian on its behalf and each original UCC-2 and
UCC-3 in favor
of the Trustee referred to in clause (viii) of the definition of
"Mortgage File"
that has been received by the Trustee or a Custodian on its behalf.
Upon request
of the Master Servicer (if reasonably necessary for the ongoing
administration
and/or servicing of the related Mortgage Loan by the Master
Servicer) and at the
expense of the related Mortgage Loan Seller, the Trustee shall
forward to the
Master Servicer a copy of any such assignment that has been
received by the
Trustee. Each such assignment shall reflect that it should be
returned by the
public recording office to the Trustee following recording, and
each such UCC-2
and UCC-3 shall reflect that the file copy thereof should be
returned to the
Trustee following filing; provided that in those instances where
the public
recording office retains the original assignment of Mortgage or
assignment of
Assignment of Leases the Trustee shall obtain therefrom a certified
copy of the
recorded original at the expense of the related Mortgage Loan
Seller. The
Trustee may assume for purposes of recordation of each UCC-2 and
UCC-3, that the
Mortgage File containing the related UCC-1 includes one state level
UCC
Financing Statement filing in the state of incorporation of the
related Borrower
for each Mortgaged Property (or with respect to any Loan that has
two or more
related Borrowers, the state of incorporation of each such
Borrower). Each
Mortgage Loan Seller will deliver to the Trustee the UCC Financing
Statements,
completed pursuant to Revised Article 9 of the UCC, on the new
national forms,
in recordable form, to be recorded pursuant to this Section
2.01(c). The Trustee
will submit such UCC Financing Statements for filing in the state
of
incorporation as so indicated on the documents provided. If any
such document or
instrument is lost or returned unrecorded or unfiled, as the case
may be,
because of a defect therein, the Trustee shall direct the related
Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the
related
Mortgage Loan Purchase and Sale Agreement, a substitute therefor or
cure such
defect, as the case may be, and thereafter the Trustee shall, upon
receipt
thereof, cause the same to be duly recorded or filed, as
appropriate with any
re-recording, re-filing or rejection expenses at the expense of
such Mortgage
Loan Seller. If such Mortgage Loan Seller has been so notified and
has not
prepared a substitute document or cured such defect, as the case
may be, within
90 days, the Trustee shall promptly notify the Master Servicer, the
Special
Servicer, the Rating Agencies, the Directing Certificateholder and
the related
Controlling Holder (if a Serviced Whole Loan is involved and the
Trustee has
knowledge of such Controlling Holder). Each Mortgage Loan Seller
shall be
responsible for paying the reasonable fees and out-of-pocket
expenses of the
Trustee in connection with the above-referenced recording and
filing of
documents insofar as it relates to the Mortgage Loans transferred
by such
Mortgage Loan Seller and acquired by the Depositor from such
Mortgage Loan
Seller, all as more particularly provided for in the related
Mortgage Loan
Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants
that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage
Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase
and Sale
Agreement, to deliver to and deposit with, or cause to be delivered
to and
deposited with, the Master Servicer or 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
the Mortgage Loan Sellers that were delivered by or on behalf of
the related
Mortgagors in connection with the origination of such Serviced
Loans and that
are reasonably required for the ongoing administration and
servicing of such
Serviced Loans (except to the extent such items represent attorney
client
privileged communications or credit analyses); and (ii) all
unapplied Reserve
Funds and Escrow Payments in the possession or under the control of
such
Mortgage Loan Seller that relate to, and that are required for the
ongoing
administration and servicing of, the Mortgage Loans transferred by
such Mortgage
Loan Seller to the Depositor. The Master Servicer shall hold all
such documents,
records and funds on behalf of the Trustee in trust for the benefit
of the
Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, the Trustee shall re-assign any rights that
such Mortgage
Loan Seller had with respect to representations and warranties made
by a third
party originator to such Mortgage Loan Seller under the related
Mortgage Loan
Purchase and Sale Agreement to such Mortgage Loan Seller in respect
of any such
Mortgage Loan.
Section 2.02 Acceptance of the Component Mortgage Loan REMIC
and
REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject
to the
provisions of Section 2.01 and to the further review provided for
in this
Section 2.02, and further subject to the Schedule of Exceptions
attached hereto
as Schedule III, with respect to each Mortgage Loan, an original
Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its
behalf holds
and will hold the documents delivered or caused to be delivered by
the Mortgage
Loan Sellers in respect of the Mortgage Loans, and that it holds
and will hold
all other assets included in the Component Mortgage Loan REMIC and
REMIC I in
trust for the exclusive use and benefit of all present and
future
Certificateholders (other than the Class V Certificateholders) and
the Trustee
as holder of the KC Component Mortgage Loan REMIC Senior Regular
Interest and
the REMIC I Regular Interests. To the extent that the Mortgage File
for a
Mortgage Loan included in a Serviced Whole Loan relates to a
Companion Loan, the
Trustee shall also hold such Mortgage File for the use and benefit
of the
related Companion Loan Holder(s).
(b) On or about the 90th day following the Closing Date, the
Trustee
or a Custodian on its behalf shall review the documents delivered
to it or such
Custodian with respect to each Mortgage Loan, and the Trustee
shall, subject to
Sections 1.04, 2.02(c) and 2.02(d), certify electronically or in
writing
(substantially in the form of Exhibit F) to each of the other
parties hereto,
the Mortgage Loan Sellers, the related Controlling Holder (if a
Serviced Whole
Loan is involved and the Trustee has knowledge of Controlling
Holder), 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", have been received by it or a Custodian on its behalf; (ii)
if such
report is due more than 180 days after the Closing Date, the
recordation/filing
contemplated by Section 2.01(c) has been completed (based solely on
receipt by
the Trustee of the particular recorded/filed documents); (iii) all
documents
received by it or any Custodian with respect to such Mortgage Loan
have been
reviewed by it or by such Custodian on its behalf and (A) appear
regular on
their face (handwritten additions, changes or corrections shall not
constitute
irregularities if initialed by the Mortgagor), (B) appear to have
been executed
and (C) purport to relate to such Mortgage Loan; and (iv) the
Trustee on behalf
of the Trust is shown as the owner of each Mortgage recorded in the
name of MERS
or its designee. The Trustee may assume that, for purposes of
reviewing the
items in clause (viii) of the definition of Mortgage File and
completing the
certification attached hereto as Exhibit F, the related UCC-1
includes one state
level UCC Financing Statement filing in the state of incorporation
of the
related Borrower for each Mortgaged Property (or with respect to
any Mortgage
Loan that has two or more related Borrowers, the state of
incorporation of each
such Borrower). If any exceptions are noted or if the
recordation/filing
contemplated by Section 2.01(c) has not been completed (based
solely on receipt
by the Trustee of the particular documents showing evidence of
the
recordation/filing), the Trustee shall every 90 days after the
ninetieth day
following the Closing Date until the earliest of (i) the date on
which such
exceptions are eliminated and such recordation/filing has been
completed, (ii)
the date on which all the affected Mortgage Loans are removed from
the Trust
Fund, and (iii) the second anniversary of the Closing Date),
distribute an
updated exception report to the recipients of the above mentioned
certification
that was submitted to such recipients substantially in the form of
Exhibit F. At
any time subsequent to the second anniversary of the Closing Date,
the Trustee
shall, upon request and at the requesting party's expense, prepare
and deliver
to the requesting party (including any Certificateholder or
Certificate Owner)
an updated version of the exception report provided for in the
prior sentence.
(c) If 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
related Mortgage Loan Seller in respect of any Mortgage Loan, or
(ii) to
inspect, review or examine any of the documents, instruments,
certificates or
other papers relating to the Mortgage Loans delivered to it to
determine that
the same are valid, legal, effective, genuine, binding,
enforceable, sufficient
or appropriate for the represented purpose or that they are other
than what they
purport to be on their face. Notwithstanding the foregoing, with
respect to
Letters of Credit referenced in clause (xii) of the definition of
"Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)
to (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), have been received and such additional
information as will
be necessary for delivering the certifications required by
subsections (a) and
(b) above. If a Mortgage Loan Seller is notified of or discovers
any error in a
Mortgage Loan Checklist, then such Mortgage Loan Seller shall
promptly amend
such Mortgage Loan Checklist and distribute such Mortgage Loan
Checklist to each
of the other parties hereto; provided, however, that an error in
such Mortgage
Loan Checklist by itself shall not be deemed to be a Material
Breach or Material
Document Defect. Such new, corrected Mortgage Loan Checklist shall
be deemed to
amend and replace the existing Mortgage Loan Checklist; provided,
however, that
the correction or amendment of such Mortgage Loan Checklist by
itself shall not
be deemed to be a cure of a Material Breach or Material Document
Defect.
Section 2.03 Mortgage Loan Sellers' Repurchase or Substitution
of
Mortgage Loans for Material Document Defects and Material
Breaches.
(a) If any party hereto discovers, or receives written notice from
a
non-party, that a Document Defect or Breach exists with respect to
any Mortgage
Loan, then such party shall give prompt written notice thereof to
the other
parties hereto, including (unless it is the party that discovered
the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or
receipt of notice
that a Document Defect or Breach exists with respect to any
Mortgage Loan, the
Trustee shall notify the Directing Certificateholder, the related
Controlling
Holder (if a Serviced Whole Loan is involved and the Trustee has
knowledge of
Controlling Holder) and the related Mortgage Loan Seller.
(b) If necessary, the Trustee shall request each Mortgage Loan
Seller to comply with Section 4(c) of the related Mortgage Loan
Purchase and
Sale Agreement with respect to any Document Defect or other
deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes
aware of any
failure on the part of the Mortgage Loan Sellers to do so, the
Trustee shall
promptly notify the Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document
Defect
or Material Breach with respect to any Mortgage Loan, the Master
Servicer shall
(and the Special Servicer may) notify the related Mortgage Loan
Seller in
writing of such Material Document Defect or Material Breach, as the
case may be,
and direct such Mortgage Loan Seller that it must, not later than
90 days from
the receipt by such parties of such notice (such 90-day period, the
"Initial
Resolution Period"), correct or cure such Material Document Defect
or Material
Breach, as the case may be, in all material respects, or repurchase
the affected
Mortgage Loan (as, if and to the extent required by the related
Mortgage Loan
Purchase and Sale Agreement), at the applicable Purchase Price;
provided,
however, that if such Mortgage Loan Seller certifies in writing to
the Trustee
(i) that, as evidenced by an accompanying Opinion of Counsel, any
such Material
Breach or Material Document Defect, as the case may be, does not
and will not
cause the Defective Mortgage Loan, to fail to be a "qualified
mortgage" within
the meaning of Section 860G(a)(3) of the Code, (ii) that such
Material Breach or
Material Document Defect, as the case may be, is capable of being
corrected or
cured but not within the applicable Initial Resolution Period,
(iii) that such
party has commenced and is diligently proceeding with the cure of
such Material
Breach or Material Document Defect, as the case may be, within the
applicable
Initial Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates
that such Material Breach or Material Document Defect, as the case
may be, will
be corrected or cured within an additional period not to exceed the
Resolution
Extension Period (a copy of which certification shall be delivered
by the
Trustee to the Master Servicer, the Special Servicer, the
Directing
Certificateholder and the related Controlling Holder (if a Serviced
Whole Loan
is involved and the Trustee has knowledge of Controlling Holder),
then such
Mortgage Loan Seller shall have an additional period equal to the
applicable
Resolution Extension Period to complete such correction or cure or,
failing
such, to repurchase the affected Mortgage Loan; provided, further,
that, in lieu
of effecting any such repurchase (but, in any event, no later than
such
repurchase would have to have been completed), such Mortgage Loan
Seller shall
be permitted, during the three-month period following the Startup
Day for the
Component Mortgage Loan REMIC or REMIC I (or during the two-year
period
following such Startup Day if the affected Mortgage Loan is a
"defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and
Treasury Regulations Section 1.860G-2(f)), to replace the affected
Mortgage Loan
(other than the 277 Park Avenue Pari Passu Note A-1 Mortgage Loan
and the
KinderCare Portfolio Pari Passu Note A-1 Mortgage Loan) with one or
more
Qualifying Substitute Mortgage Loans and to pay a cash amount equal
to the
applicable Substitution Shortfall Amount, subject to any other
applicable terms
and conditions of the related Mortgage Loan Purchase and Sale
Agreement and this
Agreement. If any substitution for a Deleted Mortgage Loan is not
completed in
all respects by the end of the three-month (or, if applicable, the
two-year)
period contemplated by the preceding sentence, the related Mortgage
Loan Seller
shall be barred from doing so (and, accordingly, will be limited to
the
cure/repurchase remedies contemplated hereby), and no party hereto
shall be
liable thereto for any loss, liability or expense resulting from
the expiration
of such period. If any Mortgage Loan is to be repurchased or
replaced as
contemplated by this Section 2.03, the Master Servicer shall
designate the
Certificate Account as the account to which funds in the amount of
the
applicable Purchase Price or Substitution Shortfall Amount (as the
case may be)
are to be wired, and the Master Servicer shall promptly notify the
Trustee when
such deposit is made. Any such repurchase or replacement of a
Mortgage Loan
shall be on a whole loan, servicing released basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document
Defect, then,
for purposes of (i) determining whether such Breach or Document
Defect is a
Material Breach or Material Document Defect, as the case may be,
and (ii) the
application of remedies, such Cross-Collateralized Group shall be
treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage
Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio
of Mortgaged
Properties and the related loan documents provide that a Mortgaged
Property may
be uncrossed from the other Mortgaged Properties in that portfolio,
and (z) the
applicable Material Breach or Material Document Defect does not
constitute a
Material Breach or Material Document Defect, as the case may be, as
to any
related Crossed-Collateralized Mortgage Loan or applies to only
specific
Mortgaged Properties included in such portfolio (without regard to
this
paragraph), then the applicable Material Breach or Material
Document Defect (as
the case may be) will be deemed to constitute a Material Breach or
Material
Document Defect (as the case may be) as to any related
Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such
portfolio
and the related Mortgage Loan Seller shall repurchase or substitute
for any
related Crossed-Collateralized Mortgage Loan in the manner
described above
unless, in the case of a Material Breach or Material Document
Defect, both of
the following conditions would be satisfied if such Mortgage Loan
Seller were to
repurchase or substitute for only the affected
Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material
Breach or Material
Document Defect had occurred without regard to this paragraph as
calculated by
the Master Servicer (in consultation with the Special Servicer (in
consultation
with the Directing Certificateholder)): (i) the debt service
coverage ratio for
any related Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the
four calendar quarters immediately preceding the repurchase or
substitution is
not less than the greater of (a) the debt service coverage ratio
immediately
prior to the repurchase and (b) the debt service coverage ratio on
the Closing
Date, subject to a floor of 1.25x, and (ii) the loan-to-value ratio
for any
related Crossed-Collateralized Mortgage Loans or Mortgaged
Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately
prior to the
repurchase and (b) the loan-to-value ratio on the Closing Date,
subject to a cap
of 75%. In the event that both of the conditions set forth in the
preceding
sentence would be satisfied, the related Mortgage Loan Seller may
elect either
to repurchase or substitute for only the affected
Crossed-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material
Breach or
Material Document Defect exists or to repurchase or substitute for
the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the related Mortgage Loan Seller repurchases
or
substitutes for an affected Cross-Collateralized Mortgage Loan or
Mortgaged
Property in the manner prescribed above while the Trustee continues
to hold any
related Cross-Collateralized Mortgage Loans, such Mortgage Loan
Seller and the
Depositor shall uncross the repurchased Cross-Collateralized
Mortgage Loan or
affected Mortgaged Property provided the Depositor has received an
Opinion of
Counsel that uncrossing the repurchased Cross-Collateralized
Mortgage Loan will
not adversely affect the status of any of the Component Mortgage
Loan REMIC,
REMIC I or REMIC II as a REMIC under the Code.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the related Mortgage Loan Seller as
contemplated by
this Section 2.03, the Master Servicer shall direct such party
effecting the
substitution to deliver the related Mortgage File to the Trustee,
to certify
that such substitute mortgage loan satisfies or such substitute
mortgage loans
satisfy, as the case may be, all of the requirements of the
definition of
"Qualifying Substitute Mortgage Loan" and to send such
certification to the
Trustee. No mortgage loan may be substituted for a Defective
Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be
replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the
relevant
Material Breach or Material Document Defect, the affected Mortgage
Loan will be
required to be repurchased as contemplated hereby. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) after the
related date of
substitution, and Monthly Payments due with respect to each
corresponding
Deleted Mortgage Loan (if any) after the related Due Date in
December 2005 and
on or prior to the related date of substitution, shall be part of
the Trust
Fund. Monthly Payments due with respect to each Replacement
Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly
Payments due
with respect to each corresponding Deleted Mortgage Loan (if any)
after the
related date of substitution, shall not be part of the Trust Fund
and are to be
remitted by the Master Servicer to the party effecting the related
substitution
promptly following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by
the
related Mortgage Loan Seller as contemplated by this Section 2.03,
the Master
Servicer shall direct such Mortgage Loan Seller to amend the
