EXHIBIT 4
==============================================================================
BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Master Servicer,
J.E. ROBERT COMPANY, INC.,
Special Servicer,
and
WELLS FARGO BANK, N.A.,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2005
---------------------------------
$2,322,090,942
Commercial Mortgage Pass-Through Certificates
Series 2005-1
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined
Terms...................................................
Section 1.02 Rules of Construction; Other
Definitional Provisions............
Section 1.03 Certain Calculations in Respect of
the Mortgage Pool............
Section 1.04 Cross-Collateralized Mortgage
Loans.............................
Section 1.05 Incorporation of Preliminary
Statement..........................
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans....................................
Section 2.02 Acceptance of the Component
Mortgage Loan REMIC and REMIC
I by Trustee...................................................
Section 2.03 Mortgage Loan Seller's Repurchase
or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches..............................................
Section 2.04 Representations and Warranties of
the Depositor.................
Section 2.05 Representations and Warranties of
the Master Servicer...........
Section 2.06 Representations and Warranties of
the Special Servicer..........
Section 2.07 Representations and Warranties of
the Trustee and the
REMIC Administrator............................................
Section 2.08 Execution, Authentication and
Delivery of Class FM
Certificates, Class SM
Certificates and Class LM
Certificates; Creation of Component Mortgage Loan REMIC
Regular Interests and Component Mortgage Loan REMIC
Residual Interest..............................................
Section 2.09 Issuance of the Class R-I
Certificates; Creation of the
REMIC I Regular Interests......................................
Section 2.10 Conveyance of REMIC I Regular
Interests; Acceptance of
REMIC II by the Trustee........................................
Section 2.11 Issuance of the REMIC II
Certificates...........................
Section 2.12 Designation of Grantor
Trust....................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the
Loans.....................................
Section 3.02 Collection of Mortgage Loan
Payments............................
Section 3.03 Collection of Taxes, Assessments
and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.......
Section 3.04 Certificate Account, Distribution
Account, Component
Mortgage Loan REMIC Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Interest Distribution Account, Excess Liquidation
Proceeds Account and Whole Loan Custodial Account..............
Section 3.05 Permitted Withdrawals From the
Certificate Account, the
Distribution Account, the Whole Loan Custodial Accounts
and the Excess Liquidation Proceeds Account....................
Section 3.06 Investment of Funds in the
Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the Component Mortgage Loan REMIC
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account and the REO Account...............
Section 3.07 Maintenance of Insurance Policies;
Errors and Omissions
and Fidelity Coverage..........................................
Section 3.08 Enforcement of Alienation
Clauses...............................
Section 3.09 Realization Upon Defaulted
Loans................................
Section 3.10 Trustee to Cooperate; Release of
Mortgage Files.................
Section 3.11 Servicing Compensation; Interest
on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances...........................
Section 3.12 Inspections; Collection of
Financial Statements.................
Section 3.13 Annual Statement as to
Compliance...............................
Section 3.14 Reports by Independent Public
Accountants.......................
Section 3.15 Access to Certain
Information...................................
Section 3.16 Title to REO Property; REO
Account..............................
Section 3.17 Management of REO
Property......................................
Section 3.18 Resolution of Defaulted Mortgage
Loans and REO Properties.......
Section 3.19 Additional Obligations of the
Master Servicer and the
Special Servicer...............................................
Section 3.20 Modifications, Waivers, Amendments
and Consents.................
Section 3.21 Transfer of Servicing Between
Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder..............................................
Section 3.22 Sub-Servicing
Agreements........................................
Section 3.23 Designation of the Special
Servicer by the Majority
Certificateholder of the Controlling Class.....................
Section 3.24
Confidentiality.................................................
Section 3.25 No Solicitation of
Prepayments..................................
Section 3.26 Certain Matters with Respect to
Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt......................
Section 3.27 Application of Default
Charges..................................
Section 3.28 Matters Regarding the Whole
Loans...............................
Section 3.29 Right to Appoint Operating
Advisor; Authority of
Operating Advisor..............................................
Section 3.30 Matters Relating to Certain
Mortgage Loans......................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01
Distributions...................................................
Section 4.02 Statements to Certificateholders;
Certain Reports by the
Master Servicer and the Special Servicer.......................
Section 4.03 P&I
Advances....................................................
Section 4.04 Allocation of Realized Losses and
Additional Trust Fund
Expenses.......................................................
Section 4.05 Interest Reserve
Account........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates................................................
Section 5.02 Registration of Transfer and
Exchange of Certificates...........
Section 5.03 Book-Entry
Certificates.........................................
Section 5.04 Mutilated, Destroyed, Lost or
Stolen Certificates...............
Section 5.05 Persons Deemed
Owners...........................................
Section 5.06 Certification by Certificate
Owners.............................
Section 5.07 Regarding the Identification of
Certain
Certificateholders.............................................
ARTICLE VI
THE DEPOSITOR, THE
MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the
Master Servicer, the
Special Servicer and the REMIC Administrator...................
Section 6.02 Merger, Consolidation or
Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator..................................................
Section 6.03 Limitation on Liability of the
Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others.....................................................
Section 6.04 Master Servicer, Special Servicer
and REMIC Administrator
Not to Resign..................................................
Section 6.05 Rights of the Depositor and the
Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator..................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default...............................................
Section 7.02 Trustee to Act; Appointment of
Successor........................
Section 7.03 Notification to
Certificateholders..............................
Section 7.04 Waiver of Events of
Default.....................................
Section 7.05 Additional Remedies of Trustee
Upon Event of Default............
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee...............................................
Section 8.02 Certain Matters Affecting the
Trustee...........................
Section 8.03 Trustee Not Liable for Validity or
Sufficiency of
Certificates or Loans..........................................
Section 8.04 Trustee May Own
Certificates....................................
Section 8.05 Fees of Trustee; Indemnification
of Trustee.....................
Section 8.06 Eligibility Requirements for
Trustee............................
Section 8.07 Resignation and Removal of the
Trustee..........................
Section 8.08 Successor
Trustee...............................................
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-4 Certificate
EXHIBIT A-5 Form
of Class A-SB Certificate
EXHIBIT A-6 Form
of Class A-5 Certificate
EXHIBIT A-7 Form
of Class A-1A Certificate
EXHIBIT A-8 Form
of Class XW Certificate
EXHIBIT A-9 Form
of Class A-J Certificate
EXHIBIT A-10 Form of
Class B Certificate
EXHIBIT A-11 Form of
Class C Certificate
EXHIBIT A-12 Form of
Class D Certificate
EXHIBIT A-13 Form of
Class E Certificate
EXHIBIT A-14 Form of
Class F Certificate
EXHIBIT A-15 Form of
Class G Certificate
EXHIBIT A-16 Form of
Class H Certificate
EXHIBIT A-17 Form of
Class J Certificate
EXHIBIT A-18 Form of
Class K Certificate
EXHIBIT A-19 Form of
Class L Certificate
EXHIBIT A-20 Form of
Class M Certificate
EXHIBIT A-21 Form of
Class N Certificate
EXHIBIT A-22 Form of
Class O Certificate
EXHIBIT A-23 Form of
Class P Certificate
EXHIBIT A-24 Form of
Class R-I Certificate
EXHIBIT A-25 Form of
Class R-II Certificate
EXHIBIT A-26 Form of
Class FM-A, Class FM-B, Class FM-C and Class FM-D
Certificate
EXHIBIT A-27 Form of
Class SM-A, Class SM-B, Class SM-C, Class SM-D,
Class SM-E, Class SM-F, Class SM-G, Class SM-H and Class
SM-J Certificate
EXHIBIT A-28 Form of
Class LM Certificate
EXHIBIT A-29 Form of Class V
Certificate
EXHIBIT B
Form of Investment Representation Letter
EXHIBIT C-1 Form
of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form
of Transferor Certificate Pursuant to Section
5.02(d)(i)(D)
EXHIBIT D
Request for Release
EXHIBIT E
Form of ERISA Representation Letter
EXHIBIT F
Form of Custodial Certification
EXHIBIT G
Form of Trustee Distribution Date Statement
EXHIBIT H
Request for Review
EXHIBIT I
Form of Notice Regarding Purchase Option Exercise
EXHIBIT J
Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K
Form of Certification to be Provided with Form 10-K
EXHIBIT L
Form of Certification to be Provided to Depositor
EXHIBIT M
Form of 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
[RESERVED]
SCHEDULE V
Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI
Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule
of Controlling Holders and Operating Advisors
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), dated
and
effective as of April 1, 2005, is by and
among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF
AMERICA, N.A., as Master Servicer, J.E.
ROBERT COMPANY, INC., as Special Servicer,
and WELLS FARGO BANK, N.A., as
Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder
in multiple Classes, which in the aggregate
will evidence the entire beneficial
ownership interest in the Trust to be
created hereunder.
As provided herein, the Trustee will elect that three
segregated
pools of assets within the Trust Fund,
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 FM Component Mortgage
Loan, the SM Component Mortgage Loan and
the LM Component Mortgage Loan and certain
other related assets subject to this
Agreement as a REMIC for federal income tax
purposes, and such segregated pool
of assets will be designated as the
"Component Mortgage Loan REMIC". The
Component Mortgage Loan REMIC Residual
Interest will represent the sole class of
"residual interests" in the Component
Mortgage Loan REMIC for purposes of the
REMIC Provisions under federal income tax
law, and will be represented by the
Class R-I Certificates. The Component
Mortgage Loan REMIC Regular Interests will
consist of the Component Mortgage Loan
REMIC Senior Regular Interests and the
Component Mortgage Loan REMIC Subordinate
Regular Interests. The Component
Mortgage Loan REMIC Senior Regular
Interests will not be certificated and will
be held by REMIC I. Each Class of Class FM
Certificates, each Class of Class SM
Certificates and the Class LM Certificates
will represent a Component Mortgage
Loan REMIC Subordinate Regular
Interest.
The following table sets forth the initial FM Component
Mortgage
Loan Senior Balance, SM Component Mortgage
Loan Senior Balance and LM Component
Mortgage Loan Senior Balance and the
corresponding Component Mortgage Loan REMIC
Senior Regular Interests:
<TABLE>
<CAPTION>
Initial Component
Mortgage Loan Senior Corresponding Component
Mortgage Loan REMIC
Component Mortgage Loan
Balance
Senior Regular Interest
-------------------------- --------------------
-------------------------------------------
<S>
<C>
<C>
FM Component Mortgage Loan
$193,714,025 FM
Component Mortgage Loan Senior Regular Interest
SM Component Mortgage Loan
$150,000,000 SM
Component Mortgage Loan Senior Regular Interest
LM Component Mortgage Loan
$4,150,000 LM
Component Mortgage Loan Senior Regular Interest
</TABLE>
The following table sets forth the initial FM Component
Mortgage
Loan Subordinate Balances and the
Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interests:
Corresponding Component Mortgage
Initial FM Component Mortgage
Loan
REMIC
Loan Subordinate
Balance
Subordinate Regular Interest
--------------------------------
--------------------------------
$ 5,156,000
Class FM-A Certificates
$ 2,555,216
Class FM-B Certificates
$ 9,070,957
Class FM-C Certificates
$23,217,827
Class FM-D Certificates
The following table sets forth the initial SM Component
Mortgage
Loan Subordinate Balance and the
Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interest:
Corresponding Component Mortgage
Initial SM Component Mortgage
Loan REMIC
Loan Subordinate
Balance
Subordinate Regular Interest
--------------------------------
--------------------------------
$2,127,243
Class SM-A Certificates
$2,073,757
Class SM-B Certificates
$6,425,000
Class SM-C Certificates
$2,565,043
Class SM-D Certificates
$2,023,957
Class SM-E Certificates
$4,859,000
Class SM-F Certificates
$4,180,843
Class SM-G Certificates
$5,531,900
Class SM-H Certificates
$6,763,257
Class SM-J Certificates
The following table sets forth the initial LM Component
Mortgage
Loan Subordinate Balance and the
Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interest:
Corresponding Component Mortgage
Initial LM Component Mortgage
Loan REMIC
Loan Subordinate
Balance
Subordinate Regular Interest
---------------------------------
--------------------------------
$ 407,103
Class LM 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 Interests and
certain other related assets subject to
this Agreement shall be treated as a
REMIC for federal income tax purposes, and
such segregated asset pool will be
designated as "REMIC I". The REMIC I
Regular Interests listed below under the
heading "Corresponding REMIC I Regular
Interests" constitute "regular interests"
in REMIC I and the Class R-I Certificates
constitute the sole Class of "residual
interests" in REMIC I created hereunder for
purposes of the REMIC Provisions.
The following table sets forth the Class or Component
designation,
the corresponding REMIC I Regular Interest
(the "Corresponding REMIC I Regular
Interest"), and the Corresponding
Components of the Class XW Certificates for
each Class of the REMIC II Certificates
(the "Corresponding Certificates").
Corresponding
Corresponding
Corresponding REMIC I Regular
REMIC I
Components of Class
Certificates Interests(1)
Principal Balance XW Certificates(1)
------------- --------------- -----------------
-------------------
Class A-1
LA-1
$39,800,000
XA-1
Class A-2
LA-2
$185,100,000
XA-2
Class A-3
LA-3
$555,200,000
XA-3
Class A-4
LA-4
$343,141,000
XA-4
Class A-SB
LA-SB
$134,000,000
XA-SB
Class A-5
LA-5
$381,247,000
XA-5
Class A-1A
LA-1A
$219,184,000
XA-1A
Class A-J
LA-J
$168,352,000
XA-J
Class B
LB
$60,955,000
XB
Class C
LC
$20,318,000
XC
Class D
LD
$43,539,000
XD
Class E
LE
$20,319,000
XE
Class F
LF
$26,123,000
XF
Class G
LG
$20,318,000
XG
Class H
LH
$34,832,000
XH
Class J
LJ
$5,805,000
XJ
Class K
LK
$8,708,000
XK
Class L
LL
$8,708,000
XL
Class M
LM
$2,902,000
XM
Class N
LN
$5,805,000
XN
Class O
LO
$11,611,000
XO
Class P
LP
$26,123,942
XP
------------
(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.
REMIC II
As provided herein, the Trustee will elect to treat that portion
of
the Trust Fund consisting of the REMIC I
Regular Interests and certain other
assets subject to this Agreement as a REMIC
for federal income tax purposes, and
such segregated asset pool will be
designated as "REMIC II". The Class A-1,
Class A-2, Class A-3, Class A-4, Class
A-SB, Class A-5, Class A-1A, Class XW,
Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates will
constitute "regular interests" in REMIC II,
and the Class R-II Certificates will
constitute the sole Class of "residual
interests" in REMIC II for purposes of
the REMIC Provisions.
The
following table sets forth the designation, the approximate
initial Pass-Through Rate, and the Initial
Class Principal Balance for each of
the Classes of REMIC II Regular
Certificates, which are issued by REMIC II, and
the Class FM Certificates, Class SM
Certificates and Class LM Certificates,
which are issued by the Component Mortgage
Loan REMIC:
<TABLE>
<CAPTION>
Approximate Initial
Initial Class
Designation
Pass-Through Rate
Principal Balance
-----------------------------
---------------------------------- -----------------
<S>
<C>
<C>
REMIC II Regular Certificates
Class A-1
4.3590% per annum
$39,800,000
Class A-2
4.6400% per annum
$185,100,000
Class A-3
4.8770% per annum
$555,200,000
Class A-4
4.8804% per annum (1)
$343,141,000
Class A-SB
4.8594% per annum (1)
$134,000,000
Class A-5
4.9764% per annum (1)
$381,247,000
Class A-1A
4.9154% per annum (1)
$219,184,000
Class A-J
4.9994% per annum (2)
$168,352,000
Class B
4.9994% per annum (2)
$60,955,000
Class C
4.9994% per annum (2)
$20,318,000
Class D
4.9994% per annum (2)
$43,539,000
Class E
4.9994% per annum (2)
$20,319,000
Class F
4.9994% per annum (2)
$26,123,000
Class G
4.9994% per annum (2)
$20,318,000
Class H
4.9994% per annum (2)
$34,832,000
Class J
4.9994% per annum (3)
$5,805,000
Class K
4.9994% per annum (3)
$8,708,000
Class L
4.9994% per annum (3)
$8,708,000
Class M
4.9994% per annum (3)
$2,902,000
Class N
4.9994% per annum (3)
$5,805,000
Class O
4.9994% per annum (3)
$11,611,000
Class P
4.9994% per annum (3)
$26,123,942
Class XW
0.106272494811863% per annum (4)
$2,322,090,942 (5)
Class FM Certificates
Class FM-A
4.1180% per annum (6)
$5,156,000
Class FM-B
4.1670% per annum (6)
$2,555,216
Class FM-C
4.2150% per annum (6)
$9,070,957
Class FM-D
4.5520% per annum (6)
$23,217,827
Class SM Certificates
Class SM-A Certificates
5.4030% per annum (6)
$2,127,243
Class SM-B Certificates
5.9290% per annum (6)
$2,073,757
Class SM-C Certificates
5.9770% per annum (6)
$6,425,000
Class SM-D Certificates
6.0240% per annum (6)
$2,565,043
Class SM-E Certificates
6.1200% per annum (6)
$2,023,957
Class SM-F Certificates
6.4060% per annum (6)
$4,859,000
Class SM-G Certificates
6.5490% per annum (6)
$4,180,843
Class SM-H Certificates
6.5970% per annum (6)
$5,531,900
Class SM-J Certificates
6.7870% per annum (6)
$6,763,257
Class LM Certificates
Class LM Certificates
11.843140434678400 % per annum (6)
$407,103
</TABLE>
------------
(1) Initial Pass-Through Rate.
The Pass-Through Rate for the Class A-4, Class
A-SB,
Class A-5 and Class A-1A Certificates for each Distribution
Date
will equal
the Weighted Average Net Mortgage Rate for such Distribution
Date, less
0.1190%, 0.1400%, 0.0230% and 0.0840%, respectively.
(2) Initial Pass-Through Rate.
The Pass-Through Rate for the Class A-J, Class
B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates
for each
Distribution Date will equal the Weighted Average Net Mortgage
Rate for
such Distribution Date.
(3) Initial Pass-Through Rate.
The Pass-Through Rate for the Class J, Class K,
Class L,
Class M, Class N, Class O and Class P Certificates for each
Distribution Date will equal the lesser of 5.0000% and the
Weighted
Average
Net Mortgage Rate for such Distribution Date.
(4) The Pass-Through Rates for
the Class XW Certificates will be calculated in
accordance
with the definitions of "Class XW Pass-Through Rate".
(5) The Class XW Certificates
will not have a Class Principal Balance; rather,
such Class
of Certificates will accrue interest as provided herein on the
related
Class XW Notional Amount.
(6) The rates set forth in the
"Pass-Through Rate" column for each Class of
Class FM
Certificates, each Class of Class SM Certificates and the Class
LM
Certificates are expressed on the basis of a 360-day year and
the
actual
number of days elapsed in the relevant month of accrual. For
purposes
of calculating the Pass-Through Rate of each Class of Class FM
Certificates, each Class of Class SM Certificates and the Class
LM
Certificates for each Interest Accrual Period, each Pass-Through
Rate will
be
converted to the annualized rate of interest at which interest
would
have to
accrue on the Certificate Balance of each such Class of
Certificates (on a basis of a 360-day year, consisting of twelve
30-day
months) to
produce the aggregate amount of interest which actually accrues
on such
Class of Certificates for such Interest Accrual Period at the
respective
rates set forth in the "Pass-Through Rate" column.
The Class R-I and Class R-II Certificates will bear no
Pass-Through
Rate and will have no initial Certificate
Principal Balances or notional
amounts. Any Available Distribution Amount
(i) remaining in the Component
Mortgage Loan REMIC Distribution Account
after the distribution of all amounts
distributable in respect of the Component
Mortgage Loan REMIC Regular Interests
and (ii) remaining in the REMIC I
Distribution Account after the distribution of
all amounts distributable in respect of the
REMIC I Regular Interests shall be
distributed to the Holders of the Class R-I
Certificates (but only to the extent
of the Available Distribution Amount for
such Distribution Date, if any,
remaining in the Component Mortgage Loan
REMIC Distribution Account or in the
REMIC I Distribution Account, as
applicable). Any Available Distribution Amount
remaining in the REMIC II Distribution
Account after distributions to the
Holders of the REMIC II Regular
Certificates shall be distributed to the Holders
of the Class R-II Certificates (but only to
the extent of the Available
Distribution Amount for such Distribution
Date, if any, remaining in the REMIC
II Distribution Account).
The portion of the Trust Fund consisting of the Excess Interest
and
the Excess Interest Distribution Account
shall be treated as a grantor trust
(the "Grantor Trust") for federal income
tax purposes. The Class V Certificates
represent undivided beneficial interests in
the portion of the Grantor Trust
representing Excess Interest and the Excess
Interest Distribution Account for
federal income tax purposes.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special
Servicer, the Trustee 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.
"1901 Research Boulevard A Note": With respect to the 1901
Research
Boulevard Mortgage Loan, the related
Mortgage Note that is included in the Trust
Fund.
"1901 Research Boulevard B Note": The Mortgage Note related to
the
1901 Research Boulevard Whole Loan that is
not included in the Trust, which is
subordinated in right of payment to the
1901 Research Boulevard A Note to the
extent set forth in the 1901 Research
Boulevard Intercreditor Agreement.
"1901 Research Boulevard B Noteholder": The holder of the 1901
Research Boulevard B Note.
"1901 Research Boulevard Control Appraisal Period": The meaning
assigned to "Control Appraisal Event" in
the 1901 Research Boulevard
Intercreditor Agreement.
"1901 Research Boulevard Intercreditor Agreement": With respect
to
the 1901 Research Boulevard Whole Loan, the
Agreement Among Noteholders dated as
of October 21, 2004 by and between the
holder of the 1901 Research Boulevard
Mortgage Loan and the 1901 Research
Boulevard B Noteholder relating to the
relative rights of such holders, as the
same may be further amended from time to
time in accordance with the terms
thereof.
"1901 Research Boulevard Mortgage Loan": The Mortgage Loan
identified as Loan No. 41699 in the
Mortgage Loan Schedule, which, together with
the 1901 Research Boulevard B Note, is
secured by a Mortgage on the 1901
Research Boulevard Mortgaged Property.
"1901 Research Boulevard Mortgaged Property": The property that
secures the 1901 Research Boulevard Whole
Loan.
"1901 Research
Boulevard
Noteholders":
The holder of the
Mortgage Note for the 1901 Research Boulevard Mortgage Loan and the 1901
Research Boulevard B Noteholder.
"1901 Research Boulevard Whole Loan": The 1901 Research
Boulevard
Mortgage Loan together with the 1901
Research Boulevard B Note. References
herein to the 1901 Research Boulevard Whole
Loan shall be construed to refer to
the aggregate indebtedness under the 1901
Research Boulevard A Note and the 1901
Research Boulevard B Note.
"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
FM Certificates, any Class of Class SM
Certificates, the Class LM 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 FM Certificates, any Class
of Class SM Certificates, the Class LM
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 Component and any Distribution Date,
and shall be deemed to accrue during
the calendar month preceding the month in
which such Distribution Date occurs.
"Accrued FM Component Mortgage Loan Senior Component Interest":
With
respect to the FM Component Mortgage Loan
Senior Component for any Distribution
Date, one month's interest at the Adjusted
Net Mortgage Rate applicable to the
FM Component Mortgage Loan Senior Component
for such Distribution Date, accrued
on the FM Component Mortgage Loan Senior
Balance of the FM Component Mortgage
Loan Senior Component outstanding
immediately prior to such Distribution Date.
For the avoidance of doubt, the Accrued FM
Component Mortgage Loan Senior
Component Interest in respect of the FM
Component Mortgage Loan Senior Component
for any Distribution Date shall be deemed
to have accrued during the applicable
Interest Accrual Period.
"Accrued LM Component Mortgage Loan Senior Component Interest":
With
respect to the LM Component Mortgage Loan
Senior Component for any Distribution
Date, one month's interest at the Adjusted
Net Mortgage Rate applicable to the
LM Component Mortgage Loan Senior Component
for such Distribution Date, accrued
on the LM Component Mortgage Loan Senior
Balance of the LM Component Mortgage
Loan Senior Component outstanding
immediately prior to such Distribution Date.
For the avoidance of doubt, the Accrued LM
Component Mortgage Loan Senior
Component Interest in respect of the LM
Component Mortgage Loan Senior Component
for any Distribution Date shall be deemed
to have accrued during the applicable
Interest Accrual Period.
"Accrued SM Component Mortgage Loan Senior Component Interest":
With
respect to the SM Component Mortgage Loan
Senior Component for any Distribution
Date, one month's interest at the Adjusted
Net Mortgage Rate applicable to the
SM Component Mortgage Loan Senior Component
for such Distribution Date, accrued
on the SM Component Mortgage Loan Senior
Balance of the SM Component Mortgage
Loan Senior Component outstanding
immediately prior to such Distribution Date.
For the avoidance of doubt, the Accrued SM
Component Mortgage Loan Senior
Component Interest in respect of the SM
Component Mortgage Loan Senior Component
for any Distribution Date shall be deemed
to have accrued during the applicable
Interest Accrual Period.
"Actual/360 Basis": The accrual of interest calculated on the
basis
of the actual number of days elapsed during
any calendar month (or other
applicable recurring accrual period) in a
year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral
pledged
and/or delivered by or on behalf of the
related Mortgagor and held by the
related Mortgagee to secure payment on any
Loan.
"Additional Exclusions": Exclusions relating to terrorist or
similar
acts in addition to those customarily found
in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Master Servicing Compensation": As defined in
Section
3.11(b).
"Additional Special Servicing Compensation": As defined in
Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or
shortfall
experienced with respect to the Trust Fund
and not otherwise included in the
calculation of a Realized Loss, that would
result in the Holders of the
Principal Pay Certificates receiving less
than the full amount of principal
and/or interest to which they are entitled
on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Majority
Mortgage
Loan or related REO Loan or the FM
Component Mortgage Loan Senior Component, the
SM Component Mortgage Loan Senior Component
or the LM Component Mortgage Loan
Senior Component, for any Distribution
Date, the annualized rate at which
interest would have to accrue thereon on a
30/360 Basis during the most recently
ended calendar month to produce the actual
amount of interest accrued (or, if
such Loan, REO Loan or Component Mortgage
Loan Senior Component, as the case may
be, is prepaid, in whole or in part, or
otherwise liquidated during such
calendar month, that otherwise would have
accrued) in respect of such Mortgage
Loan, REO Loan or Component Mortgage Loan
Senior Component, as the case may be,
at the related Net Mortgage Rate in effect
for such Mortgage Loan, REO Loan or
Component Mortgage Loan Senior Component
during such calendar month. Such rate
shall be calculated by multiplying (i) the
Net Mortgage Rate (and, in the case
of an ARD Loan after its Anticipated
Repayment Date, without giving effect to
any Excess Interest or the Excess Interest
Rate) by (ii) the actual number of
days of accrued interest for the related
period for such Mortgage Loan or REO
Loan or Component Mortgage Loan Senior
Component, divided by 30; provided,
however, that with respect to such Mortgage
Loan, REO Loan or Component Mortgage
Loan Senior Component, the Adjusted Net
Mortgage Rate for the one-month period
(a) prior to the Due Dates in January and
February in any year that is not a
leap year or in February in any year that
is a leap year will be the per annum
rate stated in the related Mortgage Note
(or, in the case of the FM Component
Mortgage Loan Senior Component, the SM
Component Mortgage Loan Senior Component
or the LM Component Mortgage Loan Senior
Component, 3.71858943901406%,
4.9000628372% and 5.5000%, respectively) as
of the Closing Date less the related
Administrative Fee Rate and (b) prior to
the Due Date in March will be
determined inclusive of one day of interest
retained for each of the one-month
periods prior to the Due Dates in January
and February in any year that is not a
leap year or February in any year that is a
leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan
and
REO Loan, as specified in the Mortgage Loan
Schedule, being the sum of the
related Master Servicing Fee Rate and the
Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the
Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the
case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as
applicable.
"Adverse Grantor Trust Event" Either: (i) any impairment of the
status of the Grantor Trust as a "grantor
trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the
imposition of a tax upon the Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that
has assigned a rating thereto, as of
any date of determination, the
qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated
Certificates by such Rating Agency
(or the placing of such Class of Rated
Certificates on "negative credit watch"
status in contemplation of any such action
with respect thereto).
"Adverse REMIC Event": With respect to any of the Component
Mortgage
Loan REMIC, REMIC I and REMIC II, either
(i) the endangerment of the status of
such REMIC as a REMIC or (ii), except as
permitted by Section 3.17(a), the
imposition of a tax upon such REMIC or any
of its assets or transactions
(including, without limitation, the tax on
prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in
Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other
Person
controlling or controlled by or under
common control with such specified Person.
For the purposes of this definition,
"control" when used with respect to any
specified Person means the power to direct
the management and policies of such
Person, directly or indirectly, whether
through the ownership of voting
securities, by contract or otherwise and
the terms "controlling" and
"controlled" have the meanings correlative
to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all
amendments hereof and supplements
hereto.
"Annual Accountant's Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Loan, the
date
specified on the related Mortgage Note, as
of which Excess Interest shall begin
to accrue on such Loan, which date is prior
to the Stated Maturity Date for such
Loan.
"Applicable State Law": For purposes of Article X, the
Applicable
State Law shall be (a) the laws of any
state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of
the states in which any Loan
documents are held and/or any REO
Properties are located, (c) such other state
and local law whose applicability shall
have been brought to the attention of
the REMIC Administrator by either (i) an
Opinion of Counsel delivered to it or
(ii) written notice from the appropriate
taxing authority as to the
applicability of such state law, and (d)
such other state or local law as to
which the REMIC Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property
as to which an appraisal is required to be
performed pursuant to the terms of
this Agreement, a narrative appraisal
complying with Title XI of FIRREA (or, in
the case of a Loan or REO Loan with a
Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, at
the Special Servicer's option, either a
limited appraisal and a summary report or
an internal valuation prepared by the
Special Servicer) that indicates the
"market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is
conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a
limited appraisal and summary report or
internal valuation with respect to a Loan
or an REO Loan with a Stated Principal
Balance as of the date of such appraisal or
valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Loan, an amount (calculated as of the
Determination Date by the Trustee
immediately following the later of the date
on which the most recent relevant
Appraisal acceptable for purposes of
Section 3.19(b) was obtained and accepted
by the Special Servicer pursuant to this
Agreement and the date of the most
recent Appraisal Trigger Event with respect
to such Required Appraisal Loan)
equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such
Required
Appraisal Loan as of such Determination
Date, (b) to the extent not previously
advanced by or on behalf of the Master
Servicer, or the Trustee, all unpaid
interest (net of Default Charges) accrued
on such Required Appraisal Loan
through the most recent Due Date prior to
such Determination Date, (c) all
unpaid Master Servicing Fees, Special
Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with
respect to such Required Appraisal
Loan, (d) all related unreimbursed Advances
made by or on behalf of the Master
Servicer, the Special Servicer or the
Trustee with respect to such Required
Appraisal Loan and reimbursable out of the
Trust Fund and all Advances related
to such Required Appraisal Loan that were
not reimbursed out of collections on
such Required Appraisal Loan, together with
all unpaid Advance Interest accrued
on such Advances, and (e) all currently due
but unpaid real estate taxes and
assessments, insurance premiums and, if
applicable, ground rents in respect of
the related Mortgaged Property or REO
Property, as applicable, for which neither
the Master Servicer nor the Special
Servicer holds any Escrow Payments or
Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised
Value of the related Mortgaged Property or
REO Property, as applicable, as
determined by the most recent relevant
Appraisal acceptable for purposes of
Section 3.19(b), over (ii) the amount of
any obligation(s) secured by any liens
on such Mortgaged Property or REO Property,
as applicable, that are prior to the
lien of such Required Appraisal Loan, and
(y) any Escrow Payments, Reserve Funds
and/or Letters of Credit held by the Master
Servicer or the Special Servicer
with respect to such Required Appraisal
Loan, the related Mortgaged Property or
any related REO Property (exclusive of any
such items that are to be applied to
real estate taxes, assessments, insurance
premiums and/or ground rents or that
were taken into account in determining the
Appraised Value of the related
Mortgaged Property or REO Property, as
applicable, referred to in clause
(2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger
Event
occurs with respect to any Loan, (ii)
either (A) no Appraisal has been obtained
or conducted, as applicable in accordance
with Section 3.19(b), with respect to
the related Mortgaged Property during the
12 month period prior to the date of
such Appraisal Trigger Event or (B) there
shall have occurred since the date of
the most recent Appraisal a material change
in the circumstances surrounding the
related Mortgaged Property that would, in
the Special Servicer's judgment,
materially affect the value of the
property, and (iii) no new Appraisal is
obtained or conducted, as applicable in
accordance with Section 3.19(b), within
60 days after such Appraisal Trigger Event,
then (x) until such new Appraisal is
obtained or conducted, as applicable in
accordance with Section 3.19(b), the
Appraisal Reduction Amount shall equal 25%
of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon
receipt or performance, as applicable
in accordance with Section 3.19(b), of such
new Appraisal by the Special
Servicer, the Appraisal Reduction Amount
for such Required Appraisal Loan will
be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes
a Required Appraisal Loan, an
Appraisal Reduction Amount shall be
calculated for the entire
Cross-Collateralized Group to which that
particular Cross-Collateralized
Mortgage Loan belongs as if such
Cross-Collateralized Group was a single
Mortgage Loan secured by multiple
properties, and any resulting Appraisal
Reduction Amount for such
Cross-Collateralized Group shall be allocated among
the respective Cross-Collateralized
Mortgage Loans forming that group on a pro
rata basis in accordance with the
respective Stated Principal Balances of those
Mortgage Loans.
In addition, notwithstanding the foregoing and for the avoidance
of
doubt for purposes of calculating Appraisal
Reduction Amounts for determining
change of control with respect to the
Fashion Show Mall Whole Loan or the 1901
Research Boulevard Whole Loan, references
to the Stated Principal Balance will
be to the entire Stated Principal Balance
thereof (i.e., the aggregate Stated
Principal Balances of the related Mortgage
Loan and the related Companion Loans)
and "Appraisal Reduction Amount" shall mean
an amount (calculated as of the
Determination Date immediately following
the later of the date on which the most
recent relevant Appraisal acceptable for
purposes of Section 3.19(b) was
obtained by the Special Servicer pursuant
to this Agreement and the date of the
most recent Appraisal Trigger Event with
respect to such Whole Loan) equal to
the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Whole
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 Whole 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 Whole 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 Whole Loan and reimbursable out of
the Trust Fund, 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), 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 the related Whole 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 the related Whole 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).
Appraisal Reduction Amounts for the Fashion Show Mall Whole
Loan
will be allocated (a) first, to the FM
Component Mortgage Loan Subordinate
Components in reverse sequential order and
(b) thereafter any remaining
Appraisal Reduction Amounts will be
allocated to the FM Component Mortgage Loan
Senior Component and the Fashion Show Mall
Companion Note A-2, pro rata based
upon outstanding principal balance.
Appraisal Reduction Amounts for the SM Component Mortgage Loan
will
be allocated (a) first, to the SM Component
Mortgage Loan Subordinate Components
in reverse sequential order and (b)
thereafter any remaining Appraisal Reduction
Amounts will be allocated to the SM
Component Mortgage Loan Senior Component.
Appraisal Reduction Amounts for the LM Component Mortgage Loan
will
be allocated (a) first, to the LM Component
Mortgage Loan Subordinate Component
and (b) thereafter any remaining Appraisal
Reduction Amounts will be allocated
to the LM Component Mortgage Loan Senior
Component.
Any Appraisal Reduction Amount for the 1901 Research Boulevard
Whole
Loan shall be deemed allocated, first, to
the 1901 Research Boulevard B Note to
the extent of its outstanding principal
balance, and then to the 1901 Research
Boulevard Mortgage Loan.
"Appraisal Trigger Event": With respect to any Loan, any of the
following events:
(i) such Loan becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan remains
unpaid for 60 days past the Due Date for such payment (or for
such
shorter period at the end of which such delinquency will become
a
Servicing Transfer Event); provided, however, solely in the case
of
a delinquent Balloon Payment, 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 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 Loan becomes the
subject of bankruptcy, insolvency or similar proceedings that
remain
undischarged and undismissed;
(iv) the
passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is
appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property, or
(vi) if a Loan has been extended three times, upon the
sixtieth day after the third extension.
"Appraised Value": 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 Loan and the
provisions
set forth in Section 3.21(e), the approvals
and consents and the time frames for
such approvals and consents necessary in
connection with the taking of a Special
Action or the extension of the maturity
date of a Loan set forth below (in each
case subject to the limitations set forth
in Section 3.21(e) and Section
3.21(f):
(i) with respect to any Performing Loan, the Master Servicer
shall obtain the approval or consent of the Special Servicer in
connection with a Special Action;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP
Loan that is a Performing Loan that involves an extension of
the
maturity date of such Loan or (B) in connection with a Special
Action for any Non-Partitioned Loan or Post CAP Loan that is a
Performing Loan, the Master Servicer shall obtain the approval
and
consent of the Special Servicer and the Special Servicer shall
obtain the approval and consent of the Directing
Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP
Loan that is a Specially Serviced Loan, the Special Servicer
shall
obtain the approval and consent of the Directing
Certificateholder
in connection with a Special Action;
(iv) with respect to the FM Component Mortgage Loan during any
time period that a FM Control Appraisal Period does not exist,
the
Master Servicer, if the FM Component Mortgage Loan is a then
Performing Loan, shall seek the approval and consent of the
Special
Servicer, and the Special Servicer shall then obtain the
approval
and consent of the FM Controlling Holder in connection with a
Special Action;
(v) with respect to the FM Component Mortgage Loan during any
time period that a FM Control Appraisal Period does not exist,
the
Special Servicer, if the FM Component Mortgage Loan is a then
Specially Serviced Loan, shall obtain the approval and consent
of
the FM Controlling Holder in connection with a Special Action;
(vi) with respect to the SM Component Mortgage Loan during any
time period that a SM Control Appraisal Period does not exist,
the
Master Servicer, if the SM Component Mortgage Loan is a then
Performing Loan, shall seek the approval and consent of the
Special
Servicer, and the Special Servicer shall then obtain the
approval
and consent of the SM Controlling Holder in connection with a
Special Action;
(vii) with respect to the SM Component Mortgage Loan during
any time period that a SM Control Appraisal Period does not
exist,
the Special Servicer, if the SM Component Mortgage Loan is a
then
Specially Serviced Loan, shall obtain the approval and consent
of
the SM Controlling Holder in connection with a Special Action;
(viii) with respect to the LM Component Mortgage Loan during
any time period that a LM Control Appraisal Period does not
exist,
the Master Servicer, if the LM Component Mortgage Loan is a
then
Performing Loan, shall seek the approval and consent of the
Special
Servicer, and the Special Servicer shall then obtain the
approval
and consent of the LM Controlling Holder in connection with a
Special Action; and
(ix) with respect to the LM Component Mortgage Loan during any
time period that a LM Control Appraisal Period does not exist,
the
Special Servicer, if the LM Component Mortgage Loan is a then
Specially Serviced Loan, shall obtain the approval and consent
of
the LM Controller Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in
clauses
(ii), (iv), (vi) and (viii) above, the
Special Servicer shall respond to the
Master Servicer in writing (which may be
via e-mail or facsimile) of its
decision to grant or deny the Master
Servicer's request for approval and consent
within ten Business Days of its receipt of
such request and all information
reasonably requested by the Special
Servicer, as such time frame may be extended
if the Special Servicer is required to seek
the consent of the Directing
Certificateholder, the FM Controlling
Holder, the SM Controlling Holder, the LM
Controlling Holder or any Rating Agency. If
the Special Servicer so fails to
respond to the Master Servicer within the
time period referenced in the
immediately preceding sentence, such
approval and consent shall be deemed
granted. With respect to any Special Action
described in clauses (ii) and (iii)
above, the Directing Certificateholder
shall respond to the Special Servicer
within ten Business Days of its receipt of
such request in writing (which may be
via e-mail or facsimile) and such request
will be deemed granted if the
Directing Certificateholder does not
respond in such time frame. With respect to
any Special Action described in clauses
(iv) through (ix) above, the FM
Controlling Holder, the SM Controlling
Holder and the LM Controlling Holder, as
applicable, shall respond in writing (which
may be via e-mail or facsimile) to
the Special Servicer within ten Business
Days of its receipt of a request for
its approval and consent, and such request
will be deemed granted if the
required party does not respond in such
time frame.
"ARD Loan": Any Mortgage Loan identified on the Mortgage Schedule
as
such pursuant to clause (xv) under the
definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or
similar document or instrument
executed by the Mortgagor in connection
with the related Loan, as amended,
modified, renewed or extended through the
date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such
Loan has not been paid in full, and no
other Liquidation Event has occurred in
respect thereof, on or before the end of
the Collection Period in which such Stated
Maturity Date occurs) and for any
subsequent Due Date on which such Loan
remains outstanding and part of the Trust
Fund, if no Monthly Payment (other than a
delinquent Balloon Payment) is due for
such Due Date, the scheduled monthly
payment of principal and/or interest deemed
to be due in respect thereof on such Due
Date equal to the amount that would
have been due in respect of such Loan on
such Due Date if it had been required
to continue to accrue interest (exclusive,
in the case of an ARD Loan after its
Anticipated Repayment Date, of Excess
Interest) in accordance with its terms,
and to pay principal in accordance with the
amortization schedule (if any), in
effect immediately prior to, and without
regard to the occurrence of, its most
recent scheduled maturity date (as such
terms and amortization schedule may have
been modified, and such maturity date may
have been extended, in connection with
a bankruptcy or similar proceeding
involving the related Mortgagor or a
modification, waiver or amendment of such
Loan granted or agreed to by the
Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to
any REO Loan, for any Due Date therefor as
of which the related REO Property
remains part of the Trust Fund, the
scheduled monthly payment of principal
and/or interest deemed to be due in respect
thereof on such Due Date equal to
the Monthly Payment that was due (or, in
the case of a Balloon Loan described in
the preceding sentence of this definition,
the Assumed Monthly Payment that was
deemed due) in respect of the related Loan
on the last Due Date prior to its
becoming an REO Loan.
"Available Distribution Amount": With respect to any
Distribution
Date, the sum of (I) with respect to each
Majority Mortgage Loan, an amount
equal to (a) the balance on deposit in the
Certificate Account and the
Distribution Account as of the close of
business on the related Determination
Date, including, without limitation, if and
to the extent on deposit therein as
of such time, the Master Servicer
Remittance Amount for the related Master
Servicer Remittance Date, any P&I
Advances made by the Master Servicer 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), and (ix)
with respect to each Mortgage Loan
that accrues interest on an Actual/360
Basis and any Distribution Date relating
to the one-month period preceding the
Distribution Date in each February (and in
any January of a year that is not a leap
year), an amount equal to the related
Withheld Amount pursuant to Section 4.05;
provided that the Available
Distribution Amount for the Final
Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and
(b)(iii) of this definition; (II) with
respect to the FM Component Mortgage Loan,
all amounts distributable pursuant to
Section 4.01(j)(i), (ii) and (iii); (III)
with respect to the SM Component
Mortgage Loan, all amounts distributable
pursuant to Section 4.01(k)(i), (ii)
and (iii); and (IV) with respect to the LM
Component Mortgage Loan, all amounts
distributable pursuant to Section
4.01(l)(i), (ii) and (iii).
"BACM": Banc of America Commercial Mortgage Inc., or its
successor
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue
of
any modification entered into as of the
Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the
related date of substitution) provides for
an amortization schedule extending beyond
its Stated Maturity Date and as to
which, in accordance with such terms, the
Monthly Payment due on its Stated
Maturity Date is at least two times larger
than the Monthly Payment due on the
Due Date next preceding its Stated Maturity
Date.
"Balloon Payment": With respect to any Balloon Loan as of any
date
of determination, the Monthly Payment
payable on the Stated Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any
Balloon
Loan that is included as part of the Trust
Fund, with a Stated Maturity Date
that occurs after, or that provides for a
grace period for its Balloon Payment
that runs past, the Determination Date in
any calendar month, and as to which
the Balloon Payment is actually received
after the Determination Date in such
calendar month (but no later than its
Stated Maturity Date or, if there is an
applicable grace period, beyond the end of
such grace period), the amount of
interest, to the extent not collected from
the related Determination Date, that
would have accrued on the principal portion
of such Balloon Payment during the
period from the related Stated Maturity
Date to, but not including, the first
day of the calendar month following the
month of maturity (less the amount of
related Master Servicing Fees that would
have been payable from that uncollected
interest and, if applicable, exclusive of
any portion of that uncollected
interest that would have been Default
Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bank of America Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States
Code).
"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 March 31,
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.
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in New York, 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 2005-1 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 2005-1, Certificate
Account".
"Certificate Factor": With respect to any Class of REMIC II
Regular
Certificates, Class FM Certificates, Class
SM Certificates or Class LM
Certificates, as of any date of
determination, a fraction, expressed as a
decimal carried to eight places, the
numerator of which is the then related
Class Principal Balance or Class 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 Principal
Pay
Certificate, as of any date of
determination, the then outstanding principal
amount of such Certificate equal to the
product of (a) the Percentage Interest
evidenced by such Certificate, multiplied
by (b) the then Class Principal
Balance of the Class of Certificates to
which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed
pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the
Certificate Register; provided that solely for
the purposes of giving any consent,
approval or waiver pursuant to this
Agreement, any Certificate registered in
the name of the Depositor, any 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 Certificate": Any one of the Class A-1, Class A-2,
Class
A-3, Class A-4, Class A-SB, Class A-5 and
Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class
A-1" designation on the face thereof,
substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1 Pass-Through Rate": A fixed per annum rate equal to
4.3590%.
"Class A-1A Certificate": Any one of the Certificates with a
"Class
A-1A" designation on the face thereof,
substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date
less 0.0840%.
"Class A-2 Certificate": Any one of the Certificates with a
"Class
A-2" designation on the face thereof,
substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A fixed per annum rate equal to
4.6400%.
"Class A-3 Certificate": Any one of the Certificates with a
"Class
A-3" designation on the face thereof,
substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A fixed per annum rate equal to
4.8770%.
"Class A-4 Certificate": Any one of the Certificates with a
"Class
A-4" designation on the face thereof,
substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date
less 0.1190%.
"Class A-5 Certificate": Any one of the Certificates with a
"Class
A-5" designation on the face thereof,
substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-5 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date
less 0.0230%.
"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-9
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-SB Certificate": Any one of the Certificates with a
"Class
A-SB" 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-SB Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date
less 0.1400%.
"Class A-SB Planned Principal Amount": The planned principal
amount
set forth on Annex C 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-10
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class
C"
designation on the face thereof,
substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 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-12
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class
E"
designation on the face thereof,
substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class
F"
designation on the face thereof,
substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class FM Certificates": Each of the Class FM-A, Class FM-B,
Class
FM-C and Class FM-D Certificates.
"Class FM Pass-Through Rate": With respect to any Distribution
Date
and any Class of Class FM Certificates, the
rate per annum set forth in the
Preliminary Statement hereto.
"Class FM-A Certificate": Any one of the Certificates with a
"Class
FM-A" designation on the face thereof,
substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
Provisions.
"Class FM-B Certificate": Any one of the Certificates with a
"Class
FM-B" designation on the face thereof,
substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
Provisions.
"Class FM-C Certificate": Any one of the Certificates with a
"Class
FM-C" designation on the face thereof,
substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
Provisions.
"Class FM-D Certificate": Any one of the Certificates with a
"Class
FM-D" designation on the face thereof,
substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
Provisions.
"Class G Certificate": Any one of the Certificates with a "Class
G"
designation on the face thereof,
substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class
H"
designation on the face thereof,
substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the
related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class
J"
designation on the face thereof,
substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class J
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class
K"
designation on the face thereof,
substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class K
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class
L"
designation on the face thereof,
substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.0000%;
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 LM Certificates": Any one of the Certificates with a
"Class
LM" 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 LM Pass-Through Rate": With respect to any Distribution
Date
and the Class LM Certificates, the rate per
annum set forth in the Preliminary
Statement hereto.
"Class M Certificate": Any one of the Certificates with a "Class
M"
designation on the face thereof,
substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class M
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class
N"
designation on the face thereof,
substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class N
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class
O"
designation on the face thereof,
substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class O
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class
P"
designation on the face thereof,
substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular
interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.0000%;
provided, however, that the Class P
Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate
for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of
any
Class of Principal Pay Certificates
outstanding as of any date of determination.
As of the Closing Date, the Class Principal
Balance of each such Class of
Certificates shall equal the Initial Class
Principal Balance thereof. On each
Distribution Date, the Class Principal
Balance of each Class of Principal Pay
Certificates shall be permanently reduced
by the amount of any distributions of
principal made thereon on such Distribution
Date pursuant to Section 4.01(b),
Section 4.01(j) and Section 4.01(k), as
applicable, and shall be further
permanently reduced on such Distribution
Date as and to the extent provided in
Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a
"Class
R-I" designation on the face thereof,
substantially in the form of Exhibit A-24
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-25
attached hereto, and evidencing the sole
Class of "residual interest" in REMIC
II for purposes of the REMIC
Provisions.
"Class SM Certificates": Each of the Class SM-A, Class SM-B,
Class
SM-C, Class SM-D, Class SM-E, Class SM-F,
Class SM-G, Class SM-H and Class SM-J
Certificates.
"Class SM Pass-Through Rate": With respect to any Distribution
Date
and any Class of Class SM Certificates, the
rate per annum set forth in the
Preliminary Statement hereto.
"Class SM-A Certificates": Any one of the Certificates with a
"Class
SM-A" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-B Certificates": Any one of the Certificates with a
"Class
SM-B" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-C Certificates": Any one of the Certificates with a
"Class
SM-C" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-D Certificates": Any one of the Certificates with a
"Class
SM-D" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-E Certificates": Any one of the Certificates with a
"Class
SM-E" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-F Certificates": Any one of the Certificates with a
"Class
SM-F" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-G Certificates": Any one of the Certificates with a
"Class
SM-G" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-H Certificates": Any one of the Certificates with a
"Class
SM-H" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class SM-J Certificates": Any one of the Certificates with a
"Class
SM-J" designation on the face thereof,
substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular
interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC
provisions.
"Class V Certificate": Any one of the Certificates with a "Class
V"
designation on the face thereof,
substantially in the form of Exhibit A-29
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, 0.106272494811863% 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": April
12, 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 Fashion Show Mall Pari
Passu Note A-2 Companion Loan and the 1901
Research Boulevard B Note.
"Companion Loan
Noteholders":
Collectively,
the Fashion Show
Mall Pari Passu Note A-2 Companion Loan
Noteholder and the 1901 Research
Boulevard B Noteholder.
"Compensating Interest Payment": With respect to any
Distribution
Date, any payment made by the Master
Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest
Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection
Period.
"Component": Each of Component XA-1, Component XA-2, Component
XA-3,
Component XA-4, Component XA-SB, Component
XA-5, Component XA-1A, 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 and
Component XP.
"Component Mortgage Loan": Any of the FM Component Mortgage
Loan,
the SM Component Mortgage Loan or the LM
Component Mortgage Loan, individually
and/or collectively, as the context
requires.
"Component Mortgage Loan REMIC": A segregated pool of assets
subject
hereto and to be administered hereunder,
with respect to which a REMIC election
is to be made, consisting of: (i) the FM
Component Mortgage Loan, the SM
Component Mortgage Loan and the LM
Component Mortgage Loan, any related REO
Property and all payments under and
proceeds of such Mortgage Loans or REO
Property received or receivable after the
Cut-off Date (other than payments of
principal, interest and other amounts due
and payable on such Mortgage Loans on
or before the Cut-off Date and other than
Excess Interest), 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 rights of the Depositor
under Sections 2, 3, 4, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20 and 21 of the
Mortgage Loan Purchase and Sale Agreement
with respect to such Mortgage Loans and
(iii) such amounts on or with respect to
clause (i) as from time to time are
deposited into the Distribution Account, the
Certificate Account, the Interest Reserve
Account and the REO Account (if
established) and the Excess Liquidation
Proceeds Account (if established), and
in the case of a Whole Loan, to the extent
of the Trust's interest in each of
the foregoing.
"Component Mortgage Loan REMIC Distribution Account": As defined
in Section 3.04(c)(iii).
"Component Mortgage Loan REMIC Regular Interest": Any of the
Component Mortgage Loan REMIC Senior
Regular Interests and the Component
Mortgage Loan REMIC Subordinate Regular
Interests.
"Component Mortgage Loan REMIC Residual Interest": The sole class
of
"residual interests" in the Component
Mortgage Loan REMIC for purposes of the
REMIC Provisions and evidenced by the Class
R-I Certificates.
"Component Mortgage Loan REMIC Senior Regular Interest": Each of
the
FM Component Mortgage Loan REMIC Senior
Regular Interest, the SM Component
Mortgage Loan REMIC Senior Regular Interest
and/or the LM Component Mortgage
Loan REMIC Senior Regular Interest.
"Component Mortgage Loan REMIC Subordinate Regular Interest":
Each
of the Class FM Certificates, the Class SM
Certificates and/or the Class LM
Certificates.
"Component Mortgage Loan Senior Component": Each of the FM
Component
Mortgage Loan Senior Component, the SM
Component Mortgage Loan Senior Component
and/or the LM Component Mortgage Loan
Senior Component, individually and/or
collectively, as the context may
require.
"Component Mortgage Loan Subordinate Component": Any of the FM
Component Mortgage Loan Subordinate
Components, any of the SM Component Mortgage
Loan Subordinate Components and/or the LM
Component Mortgage Loan Subordinate
Component, individually and/or
collectively, as the context may require.
"Component Notional Amount": With respect to each Component and
any
date of determination, an amount equal to
the then REMIC I Principal Balance of
its Corresponding REMIC I Regular
Interest.
"Component XA-1": One of the 22 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-1A": One of the 22 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-1A as of any date of
determination.
"Component XA-2": One of the 22 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 22 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 22 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-5": One of the 22 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-5 as of any date of
determination.
"Component XA-J": One of the 22 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-SB": One of the 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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 22 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.
"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": Each of the FM Control Appraisal
Period,
the SM Control Appraisal Period, the LM
Control Appraisal Period and/or the 1901
Research Boulevard Control Appraisal
Period, individually or collectively, as
the context requires.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay
Certificates with the lowest Payment
Priority (the Class A 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": Each of the FM Controlling Holder, the SM
Controlling Holder and the LM Controlling
Holder. Each such initial Controlling
Holder and, if applicable, the related
Operating Advisor shall be set forth on
Schedule V 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
(i) with respect to maintenance of the
Certificate Register and the transfer and
exchange of Certificates, the office
of the Trustee located at Wells Fargo
Center, Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479-0113,
Corporate Trust Services (CMBS), Banc of
America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates,
Series 2005-1, and (ii) for all other
purposes, 9062 Old Annapolis Road,
Columbia, Maryland 21045, Attention:
Corporate Trust Services Group (CMBS), Banc
of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2005-1, and with
respect to any successor Trustee, the
principal office thereof as designated in
writing to the Depositor.
"Corrected Loan": Any Loan that had been a Specially Serviced
Loan
but as to which all Servicing Transfer
Events have ceased to exist other than in
connection with a sale pursuant to Section
3.18.
"Corresponding Certificate": As defined in the Preliminary
Statement
with respect to any Corresponding Component
or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary
Statement
with respect to any Corresponding
Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding FM Component Mortgage Loan Subordinate Component"
and
"Corresponding Class of Class FM
Certificates": The related FM Component
Mortgage Loan Subordinate Components and
Class of Class FM Certificates set
forth below:
FM Component Mortgage Loan
Corresponding Class of Class FM
Subordinate Component
Certificates
---------------------------------
--------------------------------
FM-A
Class FM-A
FM-B
Class FM-B
FM-C
Class FM-C
FM-D
Class FM-D
"Corresponding LM Component Mortgage Loan Subordinate Component"
and
"Corresponding Class LM Certificates": The
related LM Component Mortgage Loan
Subordinate Component and the Class LM
Certificates set forth below:
LM Component Mortgage
Loan
Subordinate Component
Corresponding Class LM Certificates
---------------------------------
--------------------------------
LM
Class LM
"Corresponding SM Component Mortgage Loan Subordinate Component"
and
"Corresponding Class of Class SM
Certificates": The related SM Component
Mortgage Loan Subordinate Components and
Class of Class SM Certificates set
forth below:
SM Component Mortgage Loan
Corresponding Class of Class SM
Subordinate Component
Certificates
---------------------------------
--------------------------------
SM-A
Class SM-A
SM-B
Class SM-B
SM-C
Class SM-C
SM-D
Class SM-D
SM-E
Class SM-E
SM-F
Class SM-F
SM-G
Class SM-G
SM-H
Class SM-H
SM-J
Class SM-J
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any
Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Mortgage Loans that
is
cross-defaulted and cross-collateralized
with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is,
by
its terms, cross-defaulted and
cross-collateralized with any other Mortgage
Loan.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in
accordance with Section 1.03) equal
to the aggregate of, without duplication
(excluding, (i) except with respect to
clause (f) below, any amounts received in
respect of the FM Component Mortgage
Loan, (ii) except with respect to clause
(g) below, any amounts received in
respect of the SM Component Mortgage Loan,
and (iii) except with respect to
clause (h) below, any amounts received in
respect of the LM Component Mortgage
Loan):
(a) the principal portions of all Monthly Payments (other than
Balloon
Payments) and any Assumed Monthly Payments due or deemed due,
as
the case
may be, in respect of the Mortgage Loans and any REO Loans for
their
respective Due Dates occurring during the related Collection
Period;
(b) all Principal Prepayments received on the Mortgage Loans
during
the
related Collection Period;
(c) with respect to any Balloon Loan as to which the related
Stated
Maturity
Date occurred during or prior to the related Collection Period,
any
payment of principal (exclusive of any Principal Prepayment and
any
amount
described in subclause (d) below) that was made by or on behalf
of
the
related Mortgagor during the related Collection Period, net of
any
portion of
such payment that represents a recovery of the principal
portion of
any Monthly Payment (other than a Balloon Payment) due, or the
principal
portion of any Assumed Monthly Payment deemed due, in respect
of
such
Balloon Loan on a Due Date during or prior to the related
Collection
Period and
not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance
Proceeds (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;
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance
Proceeds and REO Revenues received on or in respect of any REO
Properties
during the related Collection Period that were identified and
applied by
the Master Servicer as recoveries of principal of the related
REO Loans,
in each case net of any portion of such amounts that represents
a recovery
of the principal portion of any Monthly Payment (other than a
Balloon
Payment) due, or of the principal portion of any Assumed
Monthly
Payment
deemed due, in respect of any such REO Loan or the predecessor
Mortgage
Loan on a Due Date during or prior to the related Collection
Period and
not previously recovered;
(f) the FM Component Mortgage Loan Senior Component Principal
Distribution Amount;
(g) the SM Component Mortgage Loan Senior Component Principal
Distribution Amount; and
(h) the LM 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": April
1, 2005.
"Cut-off Date Balance": With respect to any Majority Mortgage
Loan
or Companion Loan, the outstanding
principal balance of such Loan as of the
Cut-off Date, net of all unpaid payments of
principal due in respect thereof on
or before such date. With respect to the FM
Component Mortgage Loan, the
outstanding principal balance of the FM
Component Mortgage Loan Senior Component
as of the Cut-off Date, net of all unpaid
payments of principal due in respect
of the FM Component Mortgage Loan on or
before such date. With respect to the SM
Component Mortgage Loan, the outstanding
principal balance of the SM Component
Mortgage Loan Senior Component as of the
Cut-off Date, net of all unpaid
payments of principal due in respect of the
SM Component Mortgage Loan on or
before such date. With respect to the LM
Component Mortgage Loan, the
outstanding principal balance of the LM
Component Mortgage Loan Senior Component
as of the Cut-off Date, net of all unpaid
payments of principal due in respect
of the LM Component Mortgage Loan on or
before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of
any
date of determination, and calculated
without regard to any
cross-collateralization feature of such
Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such
Loan) generated by the related
Mortgaged Property or Mortgaged Properties
during the most recently ended period
of not more than 12 months or less than
three months for which financial
statements (whether or not audited) have
been received by or on behalf of the
related Mortgage Loan Seller (prior to the
Closing Date) or the Master Servicer
or the Special Servicer (following the
Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for
such Loan as of such date of
determination, multiplied by the number of
months represented in the financial
statements. The Master Servicer may, in
accordance with CMSA reporting
standards, report Net Cash Flow with
respect to each Mortgaged Property where
one or more Loans are secured by multiple
Mortgaged Properties; provided,
however, that for purposes of determining
Debt Service Coverage Ratio
compliance, calculations shall be made at
the Loan level.
"Default Charges": Any Default Interest and/or late payment
charges
that are paid or payable, as the context
may require, in respect of any Loan or
REO Loan or Excess Interest.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other
than late payment charges or
Prepayment Premiums that represent interest
in excess of interest accrued on the
principal balance of such Loan (or REO
Loan) at the related Mortgage Rate, such
excess interest arising out of a default
under such Loan.
"Defaulted Loan": A Loan (i) that is delinquent 60 days or more
in
respect to a Monthly Payment (not including
the Balloon Payment) or (ii) is
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
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 Loan will immediately become a
Defaulted Loan), in either case such
delinquency to be determined without giving
effect to any grace period permitted
by the related Mortgage or Mortgage Note
and without regard to any acceleration
of payments under the related Mortgage and
Mortgage Note, or (iii) as to which
the Master Servicer or Special Servicer
has, by written notice to the related
Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related
Mortgage Note.
"Defaulted Mortgage Loan": Any Mortgage Loan that is a
Defaulted
Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material
Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with
one or more Replacement Mortgage
Loans, in either case as contemplated by
Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of
America Commercial
Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of
the initial Depository for purposes
of registering those Certificates that are
to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all
times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New
York and a "clearing agency" registered
pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time the Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date,
the
earlier of (i) the sixth day of the month
in which such Distribution Date
occurs, or if such sixth day is not a
Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day
before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee)
selected by the Majority Certificateholder
of the Controlling Class, as certified by
the Trustee from time to time;
provided, however, that (i) absent such
selection, or (ii) until a Directing
Certificateholder is so selected, or (iii)
upon receipt of a notice from a
majority of the Controlling Class, by
Certificate Principal Balance, that a
Directing Certificateholder is no longer
designated, the Controlling Class
Certificateholder that owns the largest
aggregate Certificate Principal Balance
of the Controlling Class will be the
Directing Certificateholder. The initial
Directing Certificateholder is JER
Investors Trust Inc.
"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, any Class of Class FM
Certificates, any Class of Class SM
Certificates and the Class LM 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 Class FM
Certificates, any Class of Class SM
Certificates and the Class LM 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 FM Component
Mortgage Loan, if any, for each
Distribution Date shall be allocated,
first, to the Class FM 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 FM 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 FM
Component Mortgage Loan REMIC Senior
Regular Interest and among the REMIC II
Regular Certificates as described above.
The Net Aggregate Prepayment Interest
Shortfall for the SM Component Mortgage
Loan, if any, for each Distribution Date
shall be allocated, first, to the Class SM
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 SM
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 SM Component
Mortgage Loan REMIC Senior Regular Interest
and among the REMIC II Regular
Certificates as described above. The Net
Aggregate Prepayment Interest Shortfall
for the LM Component Mortgage Loan, if any,
for each Distribution Date shall be
allocated, first, to the Class LM
Certificates, up to an amount equal to the
lesser of any such Net Aggregate Prepayment
Interest Shortfall and any Accrued
Certificate Interest in respect of the
Class LM 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 LM
Component Mortgage Loan REMIC Senior
Regular Interest and among the REMIC II
Regular Certificates as described
above.
"Distributable FM Component Mortgage Loan Certificate Interest":
In
respect of the FM Component Mortgage Loan
Components an amount equal to the FM
Component Mortgage Loan Accrued Component
Interest in respect of each FM
Component Mortgage Loan Component reduced
by such component's allocable share of
any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date.
"Distributable LM Component Mortgage Loan Certificate Interest":
In
respect of the LM Component Mortgage Loan
Components, an amount equal to LM
Component Mortgage Loan Accrued Component
Interest in respect of each LM
Component Mortgage Loan Component reduced
by such component's allocable share of
any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date.
"Distributable SM Component Mortgage Loan Certificate Interest":
In
respect of the SM Component Mortgage Loan
Components an amount equal to the SM
Component Mortgage Loan Accrued Component
Interest in respect of each SM
Component Mortgage Loan Component reduced
by such component's allocable share of
any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date.
"Distribution Account": The segregated account or accounts
created
and maintained by the Trustee pursuant to
Section 3.04(b) in trust for the
Certificateholders, which shall be entitled
"Wells Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc
of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through
Certificates, Series 2005-1, Distribution
Account".
"Distribution Date": The tenth day of any month, or if such
tenth
day is not a Business Day, the Business Day
immediately following, commencing in
May 2005.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any
document
required to be part of the related Mortgage
File that has not been properly
executed, is missing, contains information
that does not conform in any material
respect with the corresponding information
set forth in the Mortgage Loan
Schedule (and the terms of such document
have not been modified by written
instrument contained in the related
Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent
global
certificates that represents the
Certificates sold in reliance on Rule 144A.
"DTC": As defined in
Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its
Stated
Maturity Date, the day of the month set
forth in the related Mortgage Note on
which each Monthly Payment on such Loan is
scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the
day of the month set forth in the
related Mortgage Note on which each Monthly
Payment on such Loan had been
scheduled to be first due; and (iii) any
REO Loan, the day of the month set
forth in the related Mortgage Note on which
each Monthly Payment on the related
Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution
or trust company, including, without
limitation, the Trustee (if it meets the
following rating criteria), the
long-term unsecured debt obligations of
which are rated no less than "AA-" by
Fitch and "AA-" by S&P (or "A-" by
S&P if such depository's short-term unsecured
debt rating is no less than "A-1" by
S&P) (if the deposits are to be held in the
account for more than 30 days) (or if such
account is maintained with PNC Bank,
National Association, rated no less that
"A" by Fitch 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 "F-1" by Fitch and "A-1" by S&P
(if the deposits are to be held in the
account for 30 days or less), in each
case, at any time funds are on deposit
therein, (ii) a segregated trust account
or accounts maintained with the corporate
trust department of a federally
chartered depository institution or trust
company, including, without
limitation, the Trustee, acting in its
fiduciary capacity and subject to the
regulations regarding fiduciary funds on
deposit therein under 12 C.F.R.
ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, (iii) a
segregated trust account or accounts
maintained with the corporate trust
department of a state chartered depository
institution or trust company,
including, without limitation, the Trustee,
acting in its fiduciary capacity and
subject to regulations regarding fiduciary
funds on deposit therein
substantially similar to 12 C.F.R.
ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, or (iv)
any other account that would not result
in the downgrade, qualification (if
applicable) or withdrawal of the rating then
assigned by either Rating Agency to any
Class of Certificates (as confirmed in
writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is
a
Servicing Advance that 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 Class J, Class K, Class L,
Class
M, Class N, Class O, Class P, Class SM-B,
Class SM-C, Class SM-D, Class SM-E,
Class SM-F, Class SM-G, Class SM-H, Class
SM-J and Class LM 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 "Wells Fargo Bank, N.A., in
trust for the registered Holders of Banc of
America Commercial Mortgage, Inc.
Commercial Mortgage Pass-Through
Certificates, Series 2005-1, Excess Interest
Distribution Account", and which must be an
Eligible Account. The Excess
Interest Distribution Account shall not be
an asset of the Component Mortgage
Loan REMIC, REMIC I or REMIC II formed
hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental
increase in the Mortgage Rate for
such Loan resulting from the passage of
such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess,
if
any, of (a) the Net Liquidation Proceeds
from the sale or liquidation of a
Specially Serviced Loan or REO Property,
over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO
Loan in full, 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(c)(iv) in trust
for the Certificateholders, which shall
be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for the registered
holders of Banc of America Commercial
Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-1,
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.
"Fashion Show Mall Intercreditor Agreement": With respect to
the
Fashion Show Mall Whole Loan, the
Intercreditor and Servicing Agreement dated as
of April 1, 2005 by and between the holder
of the Fashion Show Mall Mortgage
Loan and the Fashion Show Mall Pari Passu
Note A-2 Noteholder relating to the
relative rights of such holders, as the
same may be further amended from time to
time in accordance with the terms
thereof.
"Fashion Show Mall Mortgage Loan": The Mortgage Loan identified
as
Loan No. 58620 in the Mortgage Loan
Schedule, which, together with the Fashion
Show Mall Pari Passu Note A-2, is secured
by a Mortgage on the Fashion Show Mall
Mortgaged Property. The Fashion Show Mall
Mortgage Loan is also referred herein
as the FM Component Mortgage Loan.
"Fashion Show Mall Mortgaged Property": With respect to the
corresponding Fashion Show Mall Whole Loan,
the property that secures such
Fashion Show Mall Whole Loan.
"Fashion Show Mall Non-Securitized Note": On any date of
determination that any Fashion Show Mall
Note is not included in a
securitization or a collateralized debt
obligation in which interests in such
Fashion Show Mall Note are issued or
created. On the date hereof, the Fashion
Show Mall Pari Passu Note A-2 is a Fashion
Show Mall Non-Securitized Note.
"Fashion Show Mall Note": With respect to the Fashion Show Mall
Whole Loan, individually, either the
Fashion Show Mall Note A-1 and the Fashion
Show Mall Pari Passu Note A-2.
"Fashion Show Mall Note A-1": With respect to the Fashion Show
Mall
Mortgage Loan, the related Mortgage Note
that is included in the Trust Fund.
"Fashion Show Mall Noteholders": With respect to the Fashion
Show
Mall Whole Loan, collectively, the holder
of the Mortgage Note for the Fashion
Show Mall Mortgage Loan and the Fashion
Show Mall Pari Passu Note A-2 Companion
Loan Noteholder.
"Fashion Show Mall Notes": With respect to the Fashion Show
Mall
Whole Loan, collectively, the Fashion Show
Mall Note A-1 and the Fashion Show
Mall Pari Passu Note A-2.
"Fashion Show Mall Pari Passu Note A-2": With respect to the
Fashion
Show Mall Whole Loan, the related Mortgage
Note identified as "Note A-2" in the
Fashion Show Mall Intercreditor Agreement,
which Note is not included in the
Trust and which Note is pari passu in right
of payment to the Fashion Show Mall
Note A-1.
"Fashion Show Mall Pari Passu Note A-2 Companion Loan": The
loan
evidenced by the Fashion Show Mall Pari
Passu Note A-2.
"Fashion Show Mall Pari Passu Note A-2 Companion Loan
Noteholder":
The Fashion Show Mall Pari Passu Note A-2
Noteholder.
"Fashion Show Mall Pari Passu Note A-2 Companion Loan
Securities":
For so long as the Fashion Show Mall Note
A-1 or a successor REO Loan with
respect to the Fashion Show Mall Companion
Note A-1, is part of the Mortgage
Pool, any class of securities backed by the
Fashion Show Mall Pari Passu Note
A-2.
"Fashion Show Mall Pari Passu Note A-2 Noteholder": The holder
of
the Fashion Show Mall Pari Passu Note
A-2.
"Fashion Show Mall
Securitized
Note": As defined in Section
4.03(f).
"Fashion Show Mall Whole Loan": With respect to Fashion Show
Mall
Mortgage Loan, such Mortgage Loan together
with the Fashion Show Mall Pari Passu
Note A-2. References herein to the Fashion
Show Mall Whole Loan shall be
construed to refer to the aggregate
indebtedness under the Fashion Show Mall
Note A-1 and the Fashion Show Mall Pari
Passu Note A-2.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which
any
distributions are to be made on the
Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the
Special
Servicer, in its reasonable, good faith
judgment and in accordance with the
Servicing Standard, with respect to any
Loan or REO Property (other than a Loan
that is paid in full and other than a Loan
or REO Property, as the case may be,
that is repurchased or replaced by the
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).
"Fitch": Fitch Ratings or its successor in interest. If neither
Fitch nor any successor remains in
existence, "Fitch" 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
Fitch Ratings herein referenced shall be
deemed to refer to the equivalent ratings
of the party so designated.
"Fixed Prepayment Premium" As defined in Section 4.01(c).
"FM Component Mortgage Loan": The Mortgage Loan identified on
the
Mortgage Loan Schedule as Loan No.
58620.
"FM Component Mortgage Loan Accrued Component Interest": In
respect
of the FM Component Mortgage Loan
Components for each Distribution Date, an
amount equal to one calendar month's
interest at the applicable interest rate
for each FM Component Mortgage Loan
Component, which in the case of the FM
Component Mortgage Loan Senior Component is
equal to 3.71858943901406% per annum
and in the case of the FM Component
Mortgage Loan FM-A Component, the FM
Component Mortgage Loan FM-B Component, the
FM Component Mortgage Loan FM-C
Component and the FM Component Mortgage
Loan FM-D Component, respectively, is
equal to the Pass-Through Rate of the Class
FM-A, Class FM-B, Class FM-C and
Class FM-D Certificates, respectively.
"FM Component Mortgage Loan Available Distribution Amount":
With
respect to the FM Component Mortgage Loan
and any Distribution Date, an amount
equal to (a) the balance on deposit in the
Certificate Account and the
Distribution Account as of the close of
business on the related Determination
Date relating to the FM 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 FM 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 FM Component
Mortgage Loan, and for the Distribution
Date occurring in each March, the
related Withheld Amounts remitted to the
Distribution Account pursuant to
Section 4.05 with respect to the FM
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 FM 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 FM Component
Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or
reimbursable to any Person from the
Distribution Account pursuant to any of
clauses (ii) through (vi) of Section
3.05(b), (v) any amounts deposited into the
Distribution Account in error, (vi)
any amounts payable or reimbursable to any
Person from the Certificate Account
pursuant to clauses (ii) through (xx) of
Section 3.05(a), and (vii) with respect
to the FM 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 FM 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.
"FM Component Mortgage Loan Component": Each of the FM
Component
Mortgage Loan Senior Component, the FM
Component Mortgage Loan FM-A Component,
the FM Component Mortgage Loan FM-B
Component, the FM Component Mortgage Loan
FM-C Component and the FM Component
Mortgage Loan FM-D Component.
"FM Component Mortgage Loan Component Principal Entitlement": In
the
absence of a monetary event of default or
other material event of default under
the FM Component Mortgage Loan documents,
principal will be paid on the FM
Component Mortgage Loan Senior Component
and the FM Component Mortgage Loan FM-A
Component, the FM Component Mortgage Loan
FM-B Component, the FM Component
Mortgage Loan FM-C Component and the FM
Component Mortgage Loan FM-D Component,
pro rata (in accordance with their
respective outstanding principal balances).
In the event of a monetary event of default
or other material event of default
under the FM Component Mortgage Loan
documents, principal collected will be paid
first to the FM Component Mortgage Loan
Senior Component until its outstanding
principal balance is reduced to zero and
then sequentially to each of the FM
Component Mortgage Loan FM-A Component, the
FM Component Mortgage Loan FM-B
Component, the FM Component Mortgage Loan
FM-C Component, and the FM Component
Mortgage Loan FM-D Component until the
principal balance of each such Component
is reduced to zero. Accordingly, the "FM
Component Mortgage Loan Component
Principal Entitlement" with respect to any
FM Component Mortgage Loan is (a)
prior to the occurrence of any event of
monetary default or other material event
of default under the FM Component Mortgage
Loan, an amount equal to such FM
Component's pro rata share of the FM
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 FM Component Mortgage Loan
documents, an amount equal to the lesser of
(i) the outstanding principal
balance of such FM Component and (ii) the
portion of the Class FM Component
Mortgage Loan Principal Distribution Amount
remaining after giving effect to all
distributions of higher priority on such
Distribution Date.
"FM Component Mortgage Loan Current Principal Distribution
Amount":
For any Distribution Date will, in general,
equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or
deemed
due, as the case may be, in respect of the FM Component
Mortgage
Loan for the related Due Date occurring during the related
Collection Period;
(ii) all Principal Prepayments received on the FM Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the FM 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 FM
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 FM Component Mortgage Loan during the
related Collection Period that were identified and applied by
the
Master Servicer as recoveries of principal of the FM Component
Mortgage Loan, in each case net of any portion of such amounts
that
represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of
the
FM Component Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered.
"FM Component Mortgage Loan FM-A Component": One of the five FM
Component Mortgage Loan Components and that
corresponds to the Class FM-A
Certificates.
"FM Component Mortgage Loan FM-B Component": One of the five FM
Component Mortgage Loan Components and that
corresponds to the Class FM-B
Certificates.
"FM Component
Mortgage Loan FM-C Component": One of the five FM
Component Mortgage Loan Components and that
corresponds to the Class FM-C
Certificates.
"FM Component Mortgage Loan FM-D Component": One of the five FM
Component Mortgage Loan Components and that
corresponds to the Class FM-D
Certificates.
"FM Component Mortgage Loan Principal Distribution Amount":
With
respect to any Distribution Date, the
aggregate of the FM 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 FM Component
Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date,
over the aggregate distributions of
principal made on the FM Component Mortgage
Loan Senior Component and the Class
FM Certificates on the preceding
Distribution Date.
"FM Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial
ownership interest in the Component
Mortgage Loan REMIC issued hereunder and
designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set
forth in the Preliminary Statement
hereto, the Uncertificated Principal
Balance of which accrues interest at the
same rate as interest accrues on the FM
Component Mortgage Loan Senior
Component.
"FM Component Mortgage Loan Senior Balance": With respect to the
FM
Component Mortgage Loan Senior Component,
the principal balance of the FM
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
FM Component Mortgage Loan Senior
Balance shall be reduced by the amount of
any distributions of principal
allocated to FM Component Mortgage Loan
REMIC Senior Regular Interest on such
Distribution Date pursuant to Section
4.01(j)(ii) or Section 9.01, as
applicable, and shall be further reduced by
the amount of any Realized Losses
and Additional Trust Fund Expenses incurred
with respect to the FM 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 FM 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 FM
Component Mortgage Loan Senior Balance.
"FM Component Mortgage Loan Senior Component": One of the five
FM
Component Mortgage Loan Components,
represented by the FM Component Mortgage
Loan REMIC Senior Regular Interest.
"FM Component Mortgage Loan Senior Component Principal
Distribution
Amount": As defined in Section
4.01(j)(ii).
"FM Component Mortgage Loan Subordinate Balance": With respect
to
each FM Component Mortgage Loan Subordinate
Component, the aggregate principal
amount of FM Component Mortgage Loan
Subordinate Components outstanding from
time to time, which, on any date, shall
equal the Class Principal Balance of the
Corresponding Class FM Certificates on such
date. On each Distribution Date,
such FM Component Mortgage Loan Subordinate
Balance shall be reduced by the
amount of any distributions of principal
allocated to the Corresponding Class FM
Certificates on such Distribution Date
pursuant to Section 4.01(j)(v), (viii),
(xi) or (xiv) or Section 9.01, as
applicable, and shall be further reduced by
the amount of any Realized Losses and
Additional Trust Fund Expenses incurred
with respect to the FM Component Mortgage
Loan allocated to the Corresponding
Class of Class FM Certificates on such
Distribution Date pursuant to Section
4.04(a).
"FM Component Mortgage Loan Subordinate Component": Any of the
undivided subordinate ownership interests
in the Component Mortgage Loan REMIC
represented by each of the Class FM-A,
Class FM-B, Class FM-C and Class FM-D
Certificates.
"FM Control Appraisal Period": Any period of time during which
the
outstanding aggregate principal balance of
all of the FM Component Mortgage Loan
Subordinate Components (net of any
Appraisal Reduction Amounts, principal
payments, Realized Losses and unreimbursed
Additional Trust Fund Expenses) is
less than 25% of the original outstanding
aggregate principal balance of all of
the FM Component Mortgage Loan Subordinate
Components.
"FM Controlling Class": As of any date of determination, the
outstanding Class of Class FM Certificates
with the lowest payment priority that
has a then outstanding Certificate Balance
at least equal to 25% of its initial
Certificate Balance (or, if no Class of
Class FM Certificates has a Certificate
Balance at least equal to 25% of its
initial Certificate Balance, then the FM
Controlling Class shall be the outstanding
Class of Class FM Certificates with
the then largest outstanding Class
principal balance). The FM Controlling Class
as of the Delivery Date will be the Class
FM-G Certificates.
"FM Controlling Class Holder": As defined in Section 3.29.
"FM Controlling Holder": With respect to any date of
determination
(a) prior to the occurrence of a FM Control
Appraisal Period, the FM Controlling
Class Holder, and (b) during the occurrence
and the continuance of a FM Control
Appraisal Period, the Fashion Show Mall
Noteholders (which includes the Trust
Fund as the holder of the FM Component
Mortgage Loan).
"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.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and
(ii) the Excess Interest Distribution
Account and all funds and assets held from
time to time on deposit in the Excess
Interest Distribution Account.
"Ground Lease": The ground lease pursuant to which any
Mortgagor
holds a leasehold interest in the related
Mortgaged Property and any estoppels
or other agreements executed and delivered
by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan
Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan
Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances,
including, without limitation, those so
identified pursuant to CERCLA or any other
federal, state or local environmental
related laws and regulations, and
specifically including, without limitation,
asbestos and asbestos-containing materials,
polychlorinated biphenyls ("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.
"Indiana Retail Portfolio Mezzanine Intercreditor Agreement":
That
certain Intercreditor Agreement, dated as
of December 2, 2004 by and between
BSCMI as "Mortgage Lender" and the Indiana
Retail Portfolio Mezzanine Loan
Holder as "Mezzanine Loan Holder".
"Indiana Retail Portfolio Mezzanine Loan": That certain
mezzanine
loan related to the Indiana Retail
Portfolio Mortgage Loan, which is evidenced
by that certain Mezzanine Loan and Security
Agreement, dated as of December 2,
2004 by and between Pine Tree Indiana
Inside, LLC and the Indiana Retail
Portfolio Mezzanine Loan Holder.
"Indiana Retail Portfolio Mezzanine Loan Holder": RAIT
Partnership,
L.P, and its permitted successors or
assigns.
"Indiana Retail Portfolio Mortgage Loan": That certain Mortgage
Loan
identified as Loan No. 41674 on the
Mortgage Loan Schedule.
"Initial Class XW Notional Amount": With respect to the Class
XW
Certificates, the initial Class XW Notional
Amount thereof as of the Closing
Date is equal to $2,322,090,942.
"Initial Class Principal Balance": With respect to any Class of
Principal Pay Certificates, the initial
Class Principal Balance thereof as of
the Closing Date, in each case as set forth
in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all
the Mortgage Loans included in the Trust
Fund as of the Closing Date.
"Initial 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 Fashion Show Mall Intercreditor
Agreement and the 1901 Research Boulevard
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 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
"Wells Fargo Bank, N.A., as Trustee, in
trust for the registered holders of Banc
of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through
Certificates, Series 2005-1, Interest
Reserve Account".
"Interested Person": The Depositor, a Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the
Special Servicer, the Trustee, any Holder
of a Certificate or any Affiliate of any
such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section
5.02(b).
"IRS": The Internal Revenue Service or any successor.
"JQH Hotel Portfolio Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as
of February 18, 2005 by and between
Barclays as "Senior Lender" and the JQH
Hotel Portfolio Mezzanine Loan Holder as
"Mezzanine Lender".
"JQH Hotel Portfolio Mezzanine Loan": That certain mezzanine
loan
related to the JQH Hotel Portfolio Mortgage
Loan, which is evidenced by that
certain Mezzanine Loan and Security
Agreement, dated as of February 18, 2005 by
and between Hammons of Franklin, LLC and
the JQH Hotel Portfolio Mezzanine Loan
Holder.
"JQH Hotel Portfolio Mezzanine Loan Holder": Madison Capital
Company, LLC, and its permitted successors
or assigns.
"JQH Hotel Portfolio Mortgage Loan": That certain Mortgage Loan
identified as Loan No. 20040552 on the
Mortgage Loan Schedule.
"Late Collections": With respect to any Loan, all amounts
received
thereon during any Collection Period,
whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds
or otherwise, that represent late
collections of the principal and/or
interest portions of a Monthly Payment
(other than a Balloon Payment) or an
Assumed Monthly Payment in respect of such
Loan due or deemed due, as the case may be,
for a Due Date in a previous
Collection Period, or for a Due Date
coinciding with or preceding the Cut-off
Date, and not previously received or
recovered. With respect to any REO Loan,
all amounts received in connection with the
related REO Property during any
Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or
otherwise, that represent late collections
of the principal and/or interest portions
of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly
Payment in respect of the related Loan or
of an Assumed Monthly Payment in respect of
such REO Loan due or deemed due, as
the case may be, for a Due Date in a
previous Collection Period and not
previously received or recovered.
"Letter of Credit": With respect to any Loan, any third-party
letter
of credit delivered by or at the direction
of the Mortgagor pursuant to the
terms of such Loan in lieu of the
establishment of, or deposit otherwise
required to be made into, a Reserve
Fund.
"Liquidation Event": With respect to any Loan, any of the
following
events: (i) such Loan is paid in full; (ii)
a Final Recovery Determination is
made with respect to such Loan; (iii) such
Loan (or related REO Loan) is
repurchased by the Mortgage Loan Seller
pursuant to Section 4 of the Mortgage
Loan Purchase Agreement; (iv) such Loan is
purchased by the Directing
Certificateholder, the Special Servicer,
the FM Controlling Holder (if the
related Defaulted Mortgage Loan is the FM
Component Mortgage Loan), the SM
Controlling Holder (if the related
Defaulted Mortgage Loan is the SM Component
Mortgage Loan), the LM Controlling Holder
(if the related Defaulted Mortgage
Loan is the LM Component Mortgage Loan),
the 1901 Research Boulevard B
Noteholder (if the related Defaulted
Mortgage Loan is the 1901 Research
Boulevard Mortgage Loan) or the related
Mezzanine Loan Holder (if the related
Defaulted Mortgage Loan has a related
Mezzanine Loan) pursuant to Section
3.18(c) or (l); or (v) such Loan is
purchased by the Special Servicer or the
Master Servicer pursuant to Section
9.01(b). With respect to any REO Property
(and the related REO Loan), any of the
following events: (i) a Final Recovery
Determination is made with respect to such
REO Property or (ii) such REO
Property is purchased by the Master
Servicer or the Special Servicer pursuant to
Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and
owing (but not otherwise covered by
Servicing Advances) in connection with the
liquidation of any Specially Serviced
Loan or REO Property pursuant to Section
3.09 or 3.18 (including, without
limitation, legal fees and expenses,
committee or referee fees and, if
applicable, brokerage commissions and
conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan
or
REO Property, the fee designated as such
and payable to the Special Servicer
pursuant to the third paragraph of Section
3.11(c). Notwithstanding the
foregoing and for the avoidance of doubt,
no Liquidation Fee shall be payable in
connection with (a) the purchase of a
Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class,
the FM Controlling Holder (if the
related Defaulted Mortgage Loan is the FM
Component Mortgage Loan), the SM
Controlling Holder (if the related
Defaulted Mortgage Loan is the SM Component
Mortgage Loan), the LM Controlling Holder
(if the related Defaulted Mortgage
Loan is the LM Component Mortgage Loan),
the 1901 Research Boulevard B
Noteholder (if the related Defaulted
Mortgage Loan is the 1901 Research
Boulevard Mortgage Loan) or the related
Mezzanine Loan Holder (if the related
Defaulted Mortgage Loan has a related
Mezzanine Loan), pursuant to any
applicable purchase right set forth in
Section 3.18(c), (l) or (m) or with
respect to a purchase of a related
Defaulted Mortgage Loan at its fair value as
determined in Section 3.18, if any such
purchase occurs or purchase right is
exercised not later than 90 days from the
date that the Special Servicer
initially determined the fair value of the
related Mortgage Loan, (b) the
purchase option of the Majority
Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer
pursuant to Section 9.01 or (c) the
repurchase by the related Mortgage Loan
Seller of a Mortgage Loan so required to
be repurchased by it pursuant to Section 4
of the related Mortgage Loan Purchase
and Sale Agreement and Section 2.03 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
"Liquidation Fee Rate": With respect to each Specially Serviced
Loan
and each REO Loan with an unpaid principal
balance greater than or equal to
$20,000,000 as to which a Liquidation Fee
is payable, 0.75% (75 basis points)
per annum, and with respect to each
Specially Serviced Loan and each REO Loan
with an unpaid principal balance less than
$20,000,000 as to which a Liquidation
Fee is payable, 1.00% (100 basis points)
per annum.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO
Revenues) received by the Master
Servicer or the Special Servicer in
connection with: (i) the liquidation of a
Mortgaged Property or other collateral
constituting security for a Defaulted
Loan through trustee's sale, foreclosure
sale, REO Disposition or otherwise,
exclusive of any portion thereof required
to be released to the related
Mortgagor in accordance with applicable law
and/or the terms and conditions of
the related Loan documents; (ii) the
realization upon any deficiency judgment
obtained against a Mortgagor; (iii) the
purchase of a Defaulted Mortgage Loan by
any Controlling Class Certificateholder(s)
pursuant to Section 3.18(c), by the
Special Servicer pursuant to Section
3.18(d), by the FM Controlling Holder
pursuant to Section 3.18(l), by the SM
Controlling Holder pursuant to Section
3.18(l), the LM Controlling Holder pursuant
to Section 3.18(l), by the 1901
Research Boulevard B Noteholder pursuant to
the 1901 Research Boulevard
Intercreditor Agreement or by the related
Mezzanine Loan Holder pursuant to the
related Mezzanine Intercreditor Agreement;
(iv) the repurchase of a Mortgage
Loan by the related Mortgage Loan Seller
pursuant to the related Mortgage Loan
Purchase and Sale Agreement; (v) the
substitution of one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan
by the related Mortgage Loan Seller
pursuant to the related Mortgage Loan
Purchase and Sale Agreement (such cash
amounts being any Substitution Shortfall
Amounts); or (vi) the purchase of a
Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer or
any Controlling Class Certificateholder(s)
pursuant to Section 9.01.
"LM Component Mortgage
Loan": The Mortgage Loan identified on
the Mortgage Loan Schedule as Loan No.
5833.
"LM Component Mortgage Loan Accrued Component Interest": In
respect
of the LM Component Mortgage Loan
Components for each Distribution Date, an
amount equal to one calendar month's
interest at the applicable interest rate
for each LM Component Mortgage Loan
Component, which in the case of the LM
Component Mortgage Loan Senior Component is
equal to 5.5000% per annum and in
the case of the LM Component Mortgage Loan
Subordinate Component is equal to the
Pass-Through Rate of the Class LM
Certificates.
"LM Component Mortgage Loan Available Distribution Amount":
With
respect to the LM Component Mortgage Loan
and any Distribution Date, an amount
equal to (a) the balance on deposit in the
Certificate Account and the
Distribution Account as of the close of
business on the related Determination
Date relating to the LM 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 LM 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 LM Component
Mortgage Loan, and for the Distribution
Date occurring in each March, the
related Withheld Amounts remitted to the
Distribution Account pursuant to
Section 4.05 with respect to the LM
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 LM 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 LM Component
Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or
reimbursable to any Person from the
Distribution Account pursuant to any of
clauses (ii) through (vi) of Section
3.05(b), (v) any amounts deposited into the
Distribution Account in error, (vi)
any amounts payable or reimbursable to any
Person from the Certificate Account
pursuant to clauses (ii) through (xx) of
Section 3.05(a), and (vii) with respect
to the LM 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 LM 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.
"LM Component Mortgage Loan Component": Each of the LM
Component
Mortgage Loan Senior Component and the LM
Component Mortgage Loan Subordinate
Component.
"LM Component Mortgage Loan Component Principal Entitlement": In
the
absence of a monetary event of default or
other material event of default under
the LM Component Mortgage Loan documents,
principal will be paid on the LM
Component Mortgage Loan Senior Component
and the LM Component Mortgage Loan
Subordinate Component, pro rata (in
accordance with their respective outstanding
principal balances). In the event of a
monetary event of default or other
material event of default under the LM
Component Mortgage Loan documents,
principal collected will be paid first to
the LM Component Mortgage Loan Senior
Component until its outstanding principal
balance is reduced to zero and then to
the LM Component Mortgage Loan Subordinate
Component until the principal balance
of each such Component is reduced to zero.
Accordingly, the "LM Component
Mortgage Loan Component Principal
Entitlement" with respect to any LM Component
Mortgage Loan is (a) prior to the
occurrence of any event of monetary default or
other material event of default under the
LM Component Mortgage Loan, an amount
equal to such LM Component Mortgage Loan
Subordinate Component's pro rata share
of the LM 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 LM Component Mortgage
Loan documents, an amount equal to the
lesser of (i) the outstanding principal
balance of such LM Component Mortgage
Loan Subordinate Component and (ii) the
portion of the LM Component Mortgage
Loan Principal Distribution Amount
remaining after giving effect to all
distributions of higher priority on such
Distribution Date.
"LM Component Mortgage Loan Current Principal Distribution
Amount":
For any Distribution Date will, in general,
equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or
deemed
due, as the case may be, in respect of the LM Component
Mortgage
Loan for the related Due Date occurring during the related
Collection Period;
(ii) all Principal Prepayments received on the LM Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the LM 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 LM
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 LM Component Mortgage Loan during the
related Collection Period that were identified and applied by
the
Master Servicer as recoveries of principal of the LM Component
Mortgage Loan, in each case net of any portion of such amounts
that
represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of
the
LM Component Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered.
"LM Component Mortgage Loan Principal Distribution Amount":
With
respect to any Distribution Date, the
aggregate of the LM 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 LM Component
Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date,
over the aggregate distributions of
principal made on the LM Component Mortgage
Loan Senior Component and the Class
LM Certificates on the preceding
Distribution Date.
"LM Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial
ownership interest in the Component
Mortgage Loan REMIC issued hereunder and
designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set
forth in the Preliminary Statement
hereto, the Uncertificated Principal
Balance of which accrues interest at the
same rate as interest accrues on the LM
Component Mortgage Loan Senior
Component.
"LM Component Mortgage Loan Senior Balance": With respect to the
LM
Component Mortgage Loan Senior Component,
the principal balance of the LM
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
LM Component Mortgage Loan Senior
Balance shall be reduced by the amount of
any distributions of principal
allocated to LM Component Mortgage Loan
REMIC Senior Regular Interest on such
Distribution Date pursuant to Section
4.01(l)(ii) or Section 9.01, as
applicable, and shall be further reduced by
the amount of any Realized Losses
and Additional Trust Fund Expenses incurred
with respect to the LM 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 LM 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 LM
Component Mortgage Loan Senior Balance.
"LM Component Mortgage Loan Senior Component": The LM Component
Mortgage Loan Component, represented by the
LM Component Mortgage Loan REMIC
Senior Regular Interest.
"LM Component Mortgage Loan Senior Component Principal
Distribution
Amount": As defined in Section
4.01(l)(ii).
"LM Component Mortgage Loan Subordinate Balance": With respect
to
the LM Component Mortgage Loan Subordinate
Component, the principal balance of
the LM Component Mortgage Loan Subordinate
Component outstanding from time to
time, which, on any date, shall equal the
Class Principal Balance of the Class
LM Certificates on such date. On each
Distribution Date, such LM Component
Mortgage Loan Subordinate Balance shall be
reduced by the amount of any
distributions of principal allocated to the
Class LM Certificates on such
Distribution Date pursuant to Section
4.01(l)(v) or Section 9.01, as applicable,
and shall be further reduced by the amount
of any Realized Losses and Additional
Trust Fund Expenses incurred with respect
to the LM Component Mortgage Loan and
allocated to the Class LM Certificates on
such Distribution Date pursuant to
Section 4.04(a).
"LM Component Mortgage Loan Subordinate Component": The
undivided
subordinate ownership interest in the
Component Mortgage Loan REMIC represented
by the Class LM Certificates.
"LM Control Appraisal Period": Any period of time during which
the
outstanding principal balance of the LM
Component Mortgage Loan Subordinate
Component (net of any Appraisal Reduction
Amounts, principal payments, Realized
Losses and unreimbursed Additional Trust
Fund Expenses) is less than 25% of the
original outstanding principal balance of
the LM Component Mortgage Loan
Subordinate Component.
"LM Controlling Holder": With respect to any date of
determination
(a) prior to the occurrence of a LM Control
Appraisal Period, the Holder of the
Class LM Certificates, and (b) during the
occurrence and the continuance of a LM
Control Appraisal Period, the Directing
Certificateholder.
"Loan": Any Mortgage Loan or Companion Loan.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor
REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor
REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of
the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Specific Controlling Class Holders": As defined in
Section
3.29.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related
originator and the Borrower, pursuant to
which an account created pursuant to the
related Loan documents to receive
revenues therefrom, if any, may have been
established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the
terms of such agreement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class
or
Classes of Certificates, as of any date of
determination, any Holder or
particular group of Holders of Certificates
of such Class or Classes, as the
case may be, entitled to a majority of the
Voting Rights allocated to such Class
or Classes, as the case may be.
"Majority Mortgage Loan": Any of the Mortgage Loans other than
the
FM Component Mortgage Loan, the SM
Component Mortgage Loan and the LM Component
Mortgage Loan.
"Master Servicer": Bank of America, N.A., its successor in
interest
or any successor master servicer appointed
as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal
to (a) all amounts on deposit in the
Certificate Account as of the commencement
of business on such Master Servicer
Remittance Date, net of (b) any portion of
the amounts described in clause (a)
of this definition that represents one or
more of the following: (i) collected
Monthly Payments that are due on a Due Date
following the end of the related
Collection Period, (ii) any unscheduled
payments of principal (including,
without limitation, Principal Prepayments)
and interest, Liquidation Proceeds
and Insurance Proceeds received after the
end of the related Collection Period,
(iii) any Prepayment Premiums received
after the end of the related Collection
Period, (iv) any amounts payable or
reimbursable to any Person from the
Certificate Account pursuant to any of
clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation
Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii)
with respect to each Mortgage Loan
that accrues interest on an Actual/360
Basis and any Distribution Date relating
to the one-month period preceding the
Distribution Date in each February (and in
any January of a year that is not a leap
year), an amount equal to the related
Withheld Amount pursuant to Section 4.05;
provided that, with respect to the
Master Servicer Remittance Date that occurs
in the same calendar month as the
Final Distribution Date, the Master
Servicer Remittance Amount will be
calculated without regard to clauses
(b)(i), (b)(ii) and (b)(iii) of this
definition; provided, further, that in no
event shall any amounts be included in
the Master Servicer Remittance Amount to
the extent that it is payable to the
1901 Research Boulevard B Noteholder
pursuant to the 1901 Research Boulevard
Intercreditor Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan,
the
fee payable to the Master Servicer pursuant
to Section 3.11(a) and from which
any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage
Loan
and any related REO Loan, the
Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule
minus the Trustee Fee Rate, (b) with
respect to each Fashion Show Mall Pari
Passu Note A-2 Companion Loan and any
related REO Loan, the Master Servicing Fee
Rate shall be the same as the Master
Servicing Fee Rate for the Fashion Show
Mall Mortgage Loan and (c) with respect
to the 1901 Research Boulevard B Note and
any related REO Loan, the Master
Servicing Fee Rate shall be the same as the
Master Servicing Fee Rate for the
1901 Research Boulevard Mortgage Loan.
"Material Breach": A Breach that materially and adversely
affects
the interests of the Certificateholders
with respect to the affected Mortgage
Loan.
"Material Document Defect": A Document Defect that materially
and
adversely affects the interests of the
Certificateholders with respect to the
affected Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to the
Indiana
Retail Portfolio Mezzanine Loan, the
Indiana Retail Portfolio Mezzanine
Intercreditor Agreement; the JQH Hotel
Portfolio Mezzanine Loan, the JQH Hotel
Portfolio Mezzanine Intercreditor
Agreement; the Western Asset Plaza Mezzanine
Loan, the Western Asset Plaza Mezzanine
Intercreditor Agreement; and, with
respect to any Mortgage Loan with permitted
future mezzanine indebtedness, the
mezzanine intercreditor agreement related
to such future mezzanine loan.
"Mezzanine Loan": Collectively, the Indiana Retail Portfolio
Mezzanine Loan, the JQH Hotel Portfolio
Mezzanine Loan, the Western Asset Plaza
Mezzanine Loan and, with respect to any
Mortgage Loan with permitted future
mezzanine indebtedness, such future
mezzanine loan.
"Mezzanine Loan Holder": With respect to the Indiana Retail
Portfolio Mezzanine Loan, the Indiana
Retail Portfolio Mezzanine Loan Holder;
the JQH Hotel Portfolio Mezzanine Loan, the
JQH Hotel Portfolio Mezzanine Loan
Holder; the Western Asset Plaza Mezzanine
Loan, the Western Asset Plaza
Mezzanine Loan Holder; and, with respect to
any Mortgage Loan with permitted
future mezzanine indebtedness, the
mezzanine lender under such future mezzanine
loan.
"Modified Loan": Any Loan as to which any Servicing Transfer
Event
has occurred and that has been modified by
the Special Servicer pursuant to
Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing current
Monthly
Payments with respect to such Loan);
(b) except as expressly contemplated by the related Loan
documents,
results in
a release of the lien of the Mortgage on any material portion
of the
related Mortgaged Property without a corresponding Principal
Prepayment
in an amount or the delivery of substitute real property
collateral
with a fair market value (as is) that is not less than the fair
market
value (as is), as determined by an Appraisal delivered to the
Special
Servicer (at the expense of the related Mortgagor and upon
which
the
Special Servicer may conclusively rely), of the property to be
released;
or
(c) in the good faith and reasonable judgment of the Special
Servicer,
otherwise materially impairs the security for such Loan or
reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as
of
which such Loan is outstanding, the
scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated
Repayment Date, the minimum required
monthly payment, exclusive of any Excess
Interest and any excess cash flow) of
principal and/or interest on such Loan,
including, without limitation, a Balloon
Payment, that is actually payable by the
related Mortgagor from time to time
under the terms of the related Mortgage
Note (as such terms may be changed or
modified in connection with a bankruptcy or
similar proceeding involving the
related Mortgagor or a modification, waiver
or amendment of such Loan granted or
agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20
and applicable law); provided that the
Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date
shall not include Excess Interest.
"Mortgage": With respect to any Loan, separately and
collectively,
as the context may require, each mortgage,
deed of trust and/or other similar
document or instrument securing the related
Mortgage Note and creating a lien on
the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the
following documents:
(i) (A) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to
the
order of Wells Fargo Bank, N.A., as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-1, without
recourse"
or in blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than
the related Mortgage Loan Seller); or alternatively, if the
original
executed Mortgage Note has been lost, a lost note affidavit and
indemnity from the related Mortgage Loan Seller with a copy of
such
Mortgage Note, and (B) with respect to the Companion Loans, the
original Fashion Show Mall Note A-1 and the original 1901
Research
Boulevard A Note and copies of the Fashion Show Mall Pari Passu
Note
A-2 and the 1901 Research Boulevard B Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause
(iv)
of this definition, in each case (unless the particular item has
not
been returned from the applicable recording office) with evidence
of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage)
and
of any intervening assignments thereof that precede the
assignment
referred to in clause (v) of this definition, in each case
(unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, an
original executed assignment of the Mortgage, in favor of Wells
Fargo Bank, N.A., as Trustee for the registered holders of Banc
of
America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through
Certificates, Series 2005-1 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 Wells Fargo Bank,
N.A.
in its capacity as "lead lender" on behalf of the holders of
the
related
Companion Loans, provided that, if the related Mortgage has
not been returned from the applicable public recording office,
such
assignment of Mortgage may exclude the information to be provided
by
the recording office, and provided, further, if the related
Mortgage
has been recorded in the name of Mortgage Electronic
Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage
in
favor of the Trustee will be required to be prepared or
delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee
shall
take all actions necessary to confirm that it is shown as, the
owner
of the related Mortgage on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the
Mortgage),
in favor of Wells Fargo Bank, N.A., as Trustee for the
registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-1 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
Wells Fargo Bank, N.A. in its capacity as "lead
lender" or on behalf of the holders of the related Companion
Loan,
provided that if the related Mortgage has been recorded in the
name
of MERS or its designee, no assignment of Assignment of Leases
in
favor of the Trustee will be required to be prepared or
delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee
shall
take all actions necessary to confirm that it is shown as, the
owner
of the related Mortgage on the records of MERS for purposes of
the
system of recording transfers of beneficial ownership of
mortgages
maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in
those
instances where the terms or provisions of the Mortgage or
Mortgage
Note have been modified or the Mortgage Loan has been assumed,
in
each case (unless the particular item has not been returned from
the
applicable recording office) with evidence of recording
indicated
thereon if the instrument being modified or assumed is a
recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up"
pro forma title policy or commitment for title insurance marked
as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of
any
assignee prior to the Trustee (but only to the extent the
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 Wells Fargo Bank, N.A., as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-1 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 to be shown as, and the Trustee shall take all actions
necessary to confirm that it is shown as, the owner of the
related
Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages
maintained
by MERS;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels
relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting
Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter
of
Credit;
(xiii) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and
any
transfer documents with respect to such comfort letter, if any;
and
(xiv) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the
"Mortgage
Loan Checklist") which list may be modified within 180 days by
the
Mortgage Loan Seller after the Closing Date to correct any errors
in
accordance with Section 2.02(e);
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
April 12, 2005 between Bank of America
and the Depositor, the Mortgage Loan
Purchase and Sale Agreement dated as of
April 12, 2005 between BSCMI and the
Depositor, and the Mortgage Loan Purchase
and Sale Agreement dated as of April 12,
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 (other than with respect to
Mortgage
Loans that are interest-only for some or all of their
respective
loan terms then in such case the amortizing debt service);
(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;
(xvi) the applicable grace period; and
(xvii) the Loan Group to which such Mortgage Loan belongs.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date Balance for all of the
Mortgage Loans. Such list may be in the form
of more than one list, collectively setting
forth all of the information
required.
"Mortgage Loan Sellers": Bank of America 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 Loan,
together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any
successor REO Loans. The Mortgage Pool does
not include the Fashion Show Mall
Pari Passu Note A-2, the 1901 Research
Boulevard B Note or any REO Loan related
to either of them.
"Mortgage Rate": With respect to (i) any Loan on or prior to
its
Stated Maturity Date, the annualized rate
at which interest is scheduled (in the
absence of a default) to accrue on such
Loan from time to time in accordance
with the terms of the related Mortgage Note
(as such may be modified at any time
following the Closing Date) and applicable
law, (ii) any Loan after its Stated
Maturity Date, the annualized rate
described in clause (i) above determined
without regard to the passage of such
Stated Maturity Date, and (iii) any REO
Loan, the annualized rate described in
clause (i) or (ii) above, as applicable,
determined as if the related Loan had
remained outstanding.
"Mortgaged Property": Individually and collectively, as the
context
may require, each real property (together
with all improvements and fixtures
thereon) subject to the lien of a Mortgage
and constituting collateral for a
Loan. With respect to any
Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean,
collectively, all the Mortgaged
Properties securing such
Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has
acquired the related Mortgaged Property
and assumed the obligations of the original
obligor under the Mortgage Note.
"Net
Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by
which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in
connection with the receipt of
Principal Prepayments during the related
Collection Period, exceeds (b) the
amount of the Compensating Interest Payment
remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master
Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Fee":
As defined in Section 3.08.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the
total
operating revenues derived from such
Mortgaged Property, minus the total fixed
and variable operating expenses, capital
expenditures such as reserves, tenant
improvements and leasing commissions,
incurred in respect of such Mortgaged
Property (subject to adjustments for, among
other things, (i) non cash items
such as depreciation and amortization, and
(ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Loan or REO Loan,
the
Default Charges referred to in clause fifth
of Section 3.27(a) and Section
3.27(c), which are payable to the Master
Servicer as Additional Master Servicing
Compensation or the Special Servicer as
Additional Special Servicing
Compensation.
"Net Investment Earnings": With respect to any Investment
Account
for any Collection Period, the amount, if
any, by which the aggregate of all
interest and other income realized during
such Collection Period on funds held
in such Investment Account, exceeds the
aggregate of all losses and investment
costs, if any, incurred during such
Collection Period in connection with the
investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for
any Collection Period, the amount by which
the aggregate of all losses and
investment costs, if any, incurred during
such Collection Period in connection
with the investment of funds held in such
Investment Account in accordance with
Section 3.06, exceeds the aggregate of all
interest and other income realized
during such Collection Period on such
funds, but Net Investment Loss shall not
include any loss with respect to such
investment that is incurred solely as a
result of the insolvency of the federally
or state chartered depository
institution or trust company that holds
such Investment Account so long as such
depository institution or trust company
satisfied the qualifications set forth
in the definition of Eligible Account at
the time such investment was made and
so long as such depository institution or
trust company is not an Affiliate of
either the Master Servicer or the Special
Servicer.
"Net Liquidation Proceeds": The excess, if any, of all
Liquidation
Proceeds received with respect to any
Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses
incurred with respect thereto and
all related Servicing Advances reimbursable
therefrom.
"Net Modification Fee": As defined in Section 3.20(h).
"Net Modification
Application
Fee": As defined in Section
3.20(h).
"Net Mortgage Rate": With respect to any Majority Mortgage Loan,
the
FM Component Mortgage Loan Senior
Component, the SM Component Mortgage Loan
Senior Component, the LM Component Mortgage
Loan Senior Component or any related
REO Loan, as of any date of determination,
a rate per annum equal to the related
Mortgage Rate then in effect, or in the
case of the FM Component Mortgage Loan
Senior Component, a per annum rate equal to
3.71858943901406%, or in the case of
the SM Component Mortgage Loan Senior
Component, a per annum rate equal to
4.900628372%, or in the case of the LM
Component Mortgage Loan Senior Component,
a per annum rate equal to 5.500%, in each
case minus the related Administrative
Fee Rate. With respect to any Companion
Loan or successor REO Loan as of any
date of determination a per annum rate
equal to the Mortgage Rate then in effect
minus the related Administrative Fee Rate.
With respect to each of the FM
Component Mortgage Loan Subordinate
Components, each of the SM Component
Mortgage Loan Subordinate Components and
the LM Component Mortgage Loan
Subordinate Component, the Net Mortgage
Rate set forth for such Component
Mortgage Loan Subordinate Component in the
table below. For purposes of
calculating the Pass-Through Rate for each
Class of Certificates (other than the
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.
FM
Component Mortgage
Loan Subordinate Component
Net Mortgage Rate
---------------------------------
--------------------------------
FM-A
4.11800%
FM-B
4.16700%
FM-C
4.21500%
FM-D
4.55200%
LM
Component Mortgage
Loan Subordinate Component
Net Mortgage Rate
---------------------------------
--------------------------------
LM
11.843140434678400%
SM
Component Mortgage
Loan Subordinate Component
Net Mortgage Rate
---------------------------------
--------------------------------
SM-A
5.4030%
SM-B
5.9290%
SM-C
5.9770%
SM-D
6.0240%
SM-E
6.1200%
SM-F
6.4060%
SM-G
6.5490%
SM-H
6.5970%
SM-J
6.7870%
"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
Noteholder, to the extent of its interest),
including any lease renewed,
modified or extended on behalf of the
Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Partitioned Loans": Each Mortgage Loan, other than the FM
Component Mortgage Loan, the SM Component
Mortgage Loan and the LM Component
Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class XW, Class E,
Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O,
Class P, Class FM-A, Class FM-B, Class
FM-C, Class FM-D, Class SM-A, Class SM-B,
Class SM-C, SM-D, Class SM-E, Class
SM-F, SM-G, Class SM-H, Class SM-J, Class
LM, 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 Loan or any REO Loan
that, as determined by the Master Servicer
or, if applicable, the Trustee in its
reasonable, good faith judgment, based on
at least an Appraisal conducted within
the 12 months preceding any such
determination, will not be ultimately
recoverable from Default Charges, Insurance
Proceeds, Condemnation Proceeds,
Liquidation Proceeds or any other recovery
on or in respect of such Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance made
or
proposed to be made in respect of a Loan or
REO Property that, as determined by
the Master Servicer or, if applicable, the
Special Servicer or the Trustee in
its reasonable and good faith judgment,
will not be recoverable (together with
Advance Interest accrued thereon), or that
in fact was not ultimately recovered,
from Default Charges, Insurance Proceeds,
Liquidation Proceeds or any other
recovery on or in respect of such Loan or
REO Property (without giving effect to
potential recoveries on deficiency
judgments or recoveries from guarantors).
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special
Servicer, a Responsible Officer of the
Trustee or any authorized officer of a
Mortgage Loan Seller, as the case may be.
"Operating Advisor": With respect to any Whole Loan, the
advisor
elected pursuant to Section 3.29 .
"Opinion of Counsel": A written opinion of counsel (who must,
in
connection with any opinion rendered
pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be
Independent counsel, but who otherwise
may be salaried counsel for the Depositor,
the Trustee, the REMIC Administrator,
the Master Servicer or the Special
Servicer), which written opinion is
acceptable and delivered to the
addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as
the Holder thereof and any other
interest therein, whether direct or
indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Loan or REO Loan, any advance made by
the
Master Servicer or the Trustee pursuant to
Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential
Pay
Certificates, the rate per annum specified
as such in respect of such Class of
Certificates in the Preliminary Statement
hereto. With respect to the Class XW
Certificates, for any Distribution Date,
the Class XW Pass-Through Rate. With
respect to any Class of Class FM
Certificates, for any Distribution Date, the
related Class FM Pass-Through Rate. With
respect to any Class of Class SM
Certificates, for any Distribution Date,
the related Class SM Pass-Through Rate.
With respect to the Class LM Certificates,
for any Distribution Date, the Class
LM Pass-Through Rate.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any
Monthly Payment remaining unpaid past its
Due Date and past any applicable grace
period for such Monthly Payment as of the
Determination Date on the same calendar
month.
"Payment Priority": With respect to any Class of Certificates
(other
than the Class FM Certificates, the Class
SM Certificates, the Class LM
Certificates or the Class V Certificates),
the priority of the Holders thereof
in respect of the Holders of the other
Classes of Certificates to receive
distributions out of the Available
Distribution Amount for any Distribution
Date. The Payment Priority of the
respective Classes of Certificates shall be,
in descending order, as follows: first, the
respective Classes of Senior
Certificates; second, the Class A-J
Certificates; third the Class B
Certificates; fourth, the Class C
Certificates; fifth, the Class D Certificates;
sixth, the Class E Certificates; seventh,
the Class F Certificates; eighth, the
Class G Certificates; ninth, the Class H
Certificates; tenth, the Class J
Certificates; eleventh, the Class K
Certificates; twelfth, the Class L
Certificates; thirteenth, the Class M
Certificates; fourteenth, the Class N
Certificates; fifteenth, the Class O
Certificates; sixteenth, the Class P
Certificates; and last, the respective
Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, Class FM Certificate, Class SM
Certificates or Class LM
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 Loan": As of any date of determination, any Loan as
to
which no Servicing Transfer Event then
exists.
"Performing Party": As defined in Section 8.13(c).
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as
to
timely
payment of principal and interest by, the United States or any
agency or
instrumentality thereof, provided such obligations are backed
by
the full
faith and credit of the United States;
(b) repurchase obligations with respect to any security described
in
clause (a)
above, provided that the long-term unsecured debt obligations
of the
party agreeing to repurchase such obligations are rated "AA+"
by
Fitch 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
